Citation Nr: 1039779 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 07-36 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), claimed as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT COPD is not shown to have been present during the Veteran's military service, or for years thereafter, nor is this condition the result of any claimed exposure to asbestos. CONCLUSION OF LAW COPD was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to in-service exposure to asbestos. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2010); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in June 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claims decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The June 2006 letter provided this notice to the Veteran. The Board observes that the June 2006 letter was sent to the veteran prior to the December 2006 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in the June 2006 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2008), and Dingess, supra. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. In addition, the duty to assist the appellant has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As indicated in detail below, the RO has also completed all necessary development related to the Veteran's alleged in- service asbestos exposure. See 38 C.F.R. §§ 3.307, 3.309, 3.311 (2009). The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded VA examinations in November 2006 that did not include a nexus opinion, however the Board notes that the Veteran's c-file was reviewed in its entirety. Subsequently, a VA opinion with respect to the issue on appeal was obtained in an October 2007 compensation and pension examination (C&P). 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate, as it is predicated on a full reading of the medical records in the Veteran's claims file. It considers all of the pertinent evidence of record, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2010). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis The Veteran in this case is seeking entitlement to service connection for COPD. He attributes this condition to in-service exposure to asbestos. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection for certain chronic diseases will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). There is no specific statutory guidance with regard to asbestos- related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Veteran contends that he was exposed to asbestos while serving in the Navy as a boiler room operator and fireman on naval vessels. The Board notes that the RO requested records indicating exposure to asbestos. The Veteran's record does not indicate that he was exposed to asbestos, but his military occupational specialty indicates that his occupation as a boiler room operator has a higher incidence of asbestos exposure. The Board also notes that the Veteran had post-service exposure to asbestos while working as a building superintendent of a courthouse. Additionally, the Board notes that the Veteran does have a diagnosis of COPD and while COPD is not specifically listed as part of the non-exclusive list for asbestos-related diseases, the diseases typically associated with asbestos exposure do most often affect the lungs and digestive tract. However, the Board notes that there is no indication in the medical records that the Veteran's COPD is related to asbestos exposure. Indeed, as will be further explained below, there is evidence that the Veteran's COPD is not the result of asbestos exposure. In this regard, in Dyment v. West, 13 Vet. App. 141, 145 (1999), the United States Court of Appeals for Veterans Claims (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. See VAOGCPPREC 04-00. As such the Board finds that the Veteran is not entitled to service connection for COPD as due to asbestos exposure. As noted above, the Board observes that the Veteran is currently diagnosed with COPD as evidenced by the diagnosis provided at the November 2006 VA examination. The report associated with the November 2006 VA examination revealed that the Veteran suffers from COPD with a history of blastomycosis. The x-rays associated with that examination revealed mild COPD. As such the Board finds that the Veteran does have a current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). While the Veteran does have a current disability there is no competent evidence that the Veteran suffered from COPD while in- service. Indeed, the Veteran's service treatment records are devoid of any mention of COPD and his October 1966 separation examination lists the Veteran's lungs and chest as normal. Additionally, the Board notes that reports of medical examination and reports of medical history dating from January 1967 to January 1981 also list the Veteran's lungs and chest as normal. Moreover, there is no medical evidence of record that the Veteran's COPD is related to his exposure to asbestos while in military service. Indeed the October 2007 VA examiner provided a negative nexus opinion stating that the Veteran's COPD is not at least as likely as not related to asbestosis exposure during service, but more likely as not related to 35 year smoking history. A review of the evidence does not support the claim of service connection for COPD. The Veteran's service treatment records are negative for any treatment or diagnosis of COPD and there is no medical evidence linking the Veteran's currently diagnosed COPD to any exposure to asbestos while on active duty. Additionally, in making this determination, the Board points out that the first evidence of the Veteran having been diagnosed with a lung condition appears in 2001, approximately 35 years after his discharge from active duty service. This gap in the evidentiary record preponderates strongly against this claim on the basis of continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354 (1991). The Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the maladies at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally the Board notes the Veteran's statements that he suffers from COPD and while the Veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis, including the severity of a disease or disorder, or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether his COPD is related to his active duty service. With consideration of all of the above, while the Veteran does have a current disability, there is no evidence that the Veteran suffered from COPD while on active duty and in the absence of competent medical evidence that the Veteran's COPD is related to his military service, the preponderance of the evidence is against the Veteran's claim for service connection for COPD. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for COPD as secondary to asbestos exposure is denied. REMAND After review of the record, the Board finds that a remand for further development is warranted with respect to the issues of entitlement to service connection for hearing loss and tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). The Veteran contends that he should be service connected for his hearing loss and tinnitus because he was subjected to the noises associated with the boiler room while serving aboard the U.S.S. Barry during active duty service in the Navy. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2010). The medical evidence of record reveals that there is a current diagnosis of a hearing disability. According to the November 2006 VA audiological examination, the Veteran has mild sensorineural hearing loss bilaterally as indicated by all auditory thresholds exhibiting 35dB or higher in all frequencies above 1000 Hz bilaterally with speech recognition scores of 100 percent bilaterally. Thus the Board concludes that the Veteran has a current disability according to the definition of impaired hearing under 38 C.F.R. § 3.385 (2010). With respect to the Veteran's claimed tinnitus, the Board acknowledges that the Veteran has also been diagnosed with tinnitus as noted on a December 1995 VA treatment note. Additionally, the Court has determined that, particularly with respect to claims for tinnitus, the Veteran is competent to report the existence of tinnitus and present evidence of continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Additionally, the Board acknowledges that lay evidence may be sufficient to establish a causal relationship between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to hearing loss and tinnitus, the Board notes that the Veteran is competent to attest to hearing problems and ringing in his ears. In this instance, the Board notes that the Veteran claims that he has had hearing problems, to include ringing in his ears, since service. In considering all of the above, the Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, as noted above, the Veteran was afforded a VA audiological examination in November 2006 in which the examiner diagnosed the Veteran with tinnitus and bilateral sloping mild sensorineural hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 3.159(c) (4); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges that the Veteran was afforded a VA examination; however the Board finds that the examination provided was not adequate because the c-file was not made available for review by the examiner and the examiner failed to provide a nexus opinion with regard to whether the Veteran's diagnosed bilateral hearing loss and tinnitus are related to his active duty service. Therefore in compliance with Barr, the Board finds that is necessary to remand both issues for new examinations that address whether the Veteran's bilateral hearing loss and tinnitus are related to his active duty service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The Veteran should be afforded an appropriate VA examination to determine the etiology of the Veteran's hearing loss. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should address whether or not the Veteran's current hearing loss is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to his military service. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 2. The Veteran should be afforded an appropriate VA examination to determine the etiology of the Veteran's claimed tinnitus. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should address whether or not the Veteran's tinnitus is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to his military service. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 3. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs