Citation Nr: 1029795 Decision Date: 08/10/10 Archive Date: 08/24/10 DOCKET NO. 08-11 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD), to include as secondary to service-connected asbestosis with severe lung disease. 2. Entitlement to service connection for residuals of pneumonia, to include as secondary to service-connected asbestosis with severe lung disease. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1958 to August 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, denied the current appellate claims. The Veteran provided testimony at a hearing at the RO before the undersigned in June 2010. A transcript of this hearing has been associated with the Veteran's VA claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). As an additional matter, the Board notes the Veteran also perfected an appeal on the issue of entitlement to service connection for asthma, to include as secondary to service- connected asbestosis with severe lung disease. However, he withdrew his appeal as to that issue at the June 2010 hearing. See 38 C.F.R. § 20.204 (2009). FINDINGS OF FACT 1. All reasonable notification and development necessary for the disposition of the instant case have been completed. 2. Service connection is in effect for asbestosis with severe restrictive lung disease, evaluated as 100 percent disabling, effective from March 2006. 3. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's CAD was incurred in or otherwise the result of active service, and is not secondary to service-connected asbestosis with severe lung disease. 4. The Veteran's service-connected asbestosis with severe restrictive lung disease includes all of his current respiratory impairment that is contemplated in the presently assigned 100 percent rating; and service connection is thus precluded for pneumonia. CONCLUSIONS OF LAW 1. CAD was not incurred in or aggravated by the Veteran's active service, nor is it secondary to a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2009). 2. Service connection is not warranted for residuals of pneumonia, to include as secondary to service-connected asbestosis with severe lung disease. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310, 4.14, 4.25, 4.96 (2009); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Initially, the Board notes that for the reasons stated below the Veteran's pneumonia claim must be denied as a matter of law. In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). With respect to the Veteran's claim for service connection for CAD, the Board notes the Court has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in May 2006, which is clearly prior to the July 2006 rating decision that is the subject of this appeal. In pertinent part, this letter informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the May 2006 letter included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran had the opportunity to present evidence and argument in support of his claims, to include at the June 2010 Board hearing before the undersigned. The record was held open for 60 days to afford him the opportunity to submit new medical evidence in the form of a June 30, 2010 VA outpatient cardiology evaluation. This record was incorporated into the file in July 2010. As the Veteran expressly requested at his hearing that the Board review his information without delay, he essentially waived initial RO review of the new evidence. Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, the Veteran was accorded VA medical examinations regarding this case in June 2006 and January 2008, which include opinions that addressed the etiology of the current CAD and whether it is secondary to the service-connected asbestosis. As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No inaccuracies or prejudice has been demonstrated with respect to these examinations. Accordingly, the Board finds that these examinations are adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). II. Factual Background and Legal Analysis General legal criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service- connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). "[I]n order to establish service connection or service-connected aggravation for a present disability the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir 2004). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A. CAD Initially, the Board notes that there is no indication of CAD, or any other heart problems, in the Veteran's service treatment records. For example, his heart was clinically evaluated as normal on his August 1962 release from active duty examination. Moreover, the first competent medical evidence of any such disability is many years (nearly 40 years) after the Veteran's separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Moreover, as the disability was first diagnosed years after service, a grant of service connection is not warranted for a chronic disability pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). The Board notes that, in his oral and written statements, the Veteran essentially contends that his CAD is secondary to his service-connected asbestosis with severe lung disease. A March 2005 rating decision granted service connection for asbestosis, now characterized as asbestosis with severe restrictive lung disease, and evaluated as 100 percent disabling since March 2006. As such, the Board must address both whether the CAD is due to in-service asbestos exposure and/or whether it is secondary to his service-connected asbestosis disability. For claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos- related diseases. This circular, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21- 1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. As noted above, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. at 448. Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board observes that the heart is an internal organ, not subject to lay observation. As such, competent medical testing is required for evaluation of such a disability. Therefore, competent medical evidence is required for resolution of this appeal, and it is not the type of case contemplated by the holding of Jandreau, supra. In this case, the Board notes that, both the June 2006 and January 2008 VA medical examinations included competent medical opinions against finding that the Veteran's CAD was due to his in-service asbestos exposure or secondary to his service- connected asbestosis. For example, the June 2006 VA examiner stated, in pertinent part, that CAD was not secondary to asbestosis; and that the CAD was less likely as not (less than 50/50 probability) caused by or a result of asbestos exposure during military service. The more recent January 2008 VA examiner noted, in part, that asbestosis was not a commonly recognized cause of CAD; that tobacco use could lead to chronic obstructive pulmonary disease (COPD) and myocardial infarction; nicotine was commonly recognized as promoting atherosclerosis; other pathologies from the which the Veteran suffered were known to lead to CAD - specifically, his non-service-connected organic sleep apnea and hypercholesterolemia; and that obesity and deconditioning may also play a role in the atherosclerosis. In view of the foregoing, this VA examiner opined that it was less likely than not that the Veteran's CAD was caused by or the result of his service-connected asbestosis. Additionally, during his 2010 Board hearing, the Veteran also asserted that he suffered from congestive heart failure (CHF) due to his service-connected asbestosis. However, the January 2008 VA examiner expressly opined that it was less likely than not that the Veteran had CHF. Moreover, according to a June 30, 2010 VA outpatient cardiology consultation record, that medical specialist concluded that the Veteran's "BNP is not suggestive of CHF being responsible for his symtoms". The Veteran's complaints of dyspnea were thought most likely related to intrinsic restrictive/obstructive lung diease. The Board has already determined that the June 2006 and January 2008 VA examinations are supported by an adequate foundation, and are adequate for resolution of this case. No competent medical evidence is of record which refutes the opinions detailed in these VA examinations. Accordingly, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's CAD is due to either his in-service asbestos exposure or is secondary to his service-connected asbestosis. The Board further finds that there is no other evidence of record which otherwise links the Veteran's CAD to his active service. Consequently, the benefit sought on appeal must be denied. While the Veteran maintains that he has CAD related to his service-connected asbestosis disability, as a lay person he has not been shown to be capable of making medical conclusions, thus, his statements regarding diagnosis and causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). And although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for CAD, including as due to his service-connected asbestosis, and his claim must be denied. B. Pneumonia The Board acknowledges that the Veteran was treated for pneumonia, including in 2006, and he contends that this occurred as a result of his service-connected asbestosis with severe lung disease. Nevertheless, the Board must deny this claim. First, the Board notes that there is simply no probative medical or other evidence of record to support this claim, other than the Veteran's assertions. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. See Espiritu; Layno;Routen; supra. Second, the Board notes that the Veteran's pneumonia and service- connected asbestosis are conditions commonly manifested by respiratory impairment. However, except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. In Esteban, the Court found that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. Here, all of the Veteran's current respiratory impairment has been contemplated in evaluating his service-connected asbestosis that is rated under Diagnostic Code 6833, and assigned a 100 percent rating since 2006. Therefore, a grant of service connection for pneumonia would appear to be in violation of this prohibition against pyramiding. The Board further notes that the provisions of 38 C.F.R. § 4.96(a) provides that ratings under Diagnostic Codes 6600 through 6817, and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under Diagnostic Codes 6819 and 6820 will not be combined with each other or with Diagnostic Codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Thus, here, the record indicates these provisions would preclude a separate rating for pneumonia apart from the currently service-connected asbestosis, as it is already evaluated as 100 percent disabling; i.e., it would not result in a higher rating. In view of the foregoing, the Board finds that the Veteran's claim of service connection for residuals of pneumonia, to include as secondary to service-connected asbestosis with severe lung disease, must be denied. See e.g., Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Service connection for CAD, to include as secondary to service- connected asbestosis with severe lung disease, is denied. Service connection for residuals of pneumonia, to include as secondary to service-connected asbestosis with severe lung disease, is denied. ____________________________________________ D. J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs