Citation Nr: 1041191 Decision Date: 11/02/10 Archive Date: 11/12/10 DOCKET NO. 06-34 569 ) 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, including as secondary to jet fuel exposure. 2. Entitlement to service connection for liver disease, including as secondary to jet fuel exposure. 3. Entitlement to service connection for interstitial lung disease, including as secondary to jet fuel exposure, and/or asbestos exposure. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from March 1960 to March 1964. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA), Denver, Colorado, Regional Office (RO). The appeal was previously before the Board in July 2009, at which time the claims were remanded for further development. In March 2009, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is associated with the claims folder. FINDINGS OF FACT 1. Coronary artery disease was initially clinically demonstrated years after service and has not been shown by competent clinical evidence of record to be etiologically related to the Veteran's active service, to include exposure to jet fuel. 2. A liver disease was initially clinically demonstrated years after service and has not been shown by competent clinical evidence of record to be etiologically related to the Veteran's active service, to include exposure to jet fuel. 3. A pulmonary/lung disorder, variously diagnosed as connective- tissue disease-associated interstitial lung disease and follicular bronchiolitis , was initially clinically demonstrated years after service and has not been shown by competent clinical evidence of record to be etiologically related to the Veteran's active service, to include exposure to jet fuel and/or asbestos exposure. 4. Sleep apnea was initially clinically demonstrated years after service and has not been shown by competent clinical evidence of record to be etiologically related to the Veteran's active service, to include exposure to jet fuel. CONCLUSIONS OF LAW 1. Coronary artery disease was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. A liver disease was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 3. A pulmonary/lung disorder was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 4. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, the Veteran was sent a letters in March 2004 and March 2005 that fully addressed all notice elements and was sent prior to the initial May 2005 RO decision in this matter. These letters provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. In the instant case, the Veteran was not informed of how VA determines disability ratings and effective dates until after the initial adjudication of the claims. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a March 2009 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Discussion The Veteran is claiming service connection for coronary artery disease, status post stent placement, liver disease (diagnosed as primary biliary cirrhosis), lung disease (also diagnosed as follicular bronchiolitis and connective tissue disease-associated interstitial lung disease), and sleep apnea. He contends that these disorders, with the exception of sleep apnea, are due to inhalation of jet fuel during active service. Additionally, he asserts that his interstitial lung disease was caused by exposure to asbestos while working as an aircraft electrician in-service. Service Connection - In General A Veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Asbestos Exposure There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Jan. 31, 1997). Also, an opinion by VA's General Counsel (GC) discussed the proper way of developing asbestos claims. See VAOPGCPREC 4-00 (Apr. 13, 2000). The guidelines provide that the latency period for asbestos- related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). An asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers also may produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. Rating specialists must develop any evidence of asbestos exposure before, during, and after service. 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. M21- 1, part VI, para. 7.21(d)(1). Analysis Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for coronary artery disease (to include as secondary to jet fuel exposure), a liver disorder (to include as secondary to jet fuel exposure), a pulmonary/lung disorder (to include as secondary to jet fuel and/or asbestos exposure), and sleep apnea; thus, these claims must be denied. 38 C.F.R. § 3.102. Service treatment records make no mention of heart, liver, pulmonary, lung, or sleep apnea problems. Nor has the Veteran contended that any of these conditions were present during service. See, generally, March 2009 Hearing Transcript. A December 1963 separation examination report shows normal clinical evaluations of the lungs, chest, and heart; contemporaneous notations indicate a normal EKG and normal chest X-ray. On his Report of Medical History prior to separation, the Veteran denied having shortness of breath, palpitation or pounding heart, pain or pressure in chest, high/low blood pressure, and/or stomach, liver, or intestinal problems. These records provide evidence against a finding that the Veteran's heart, liver, pulmonary/lung, or sleep apnea problems had their onset during his active service, and the claims are denied under this theory. The first clinical evidence of record post service is a private treatment report from Dr. Klanbest in November 2000, which shows a diagnosis of biliary cirrhosis; a private sleep study from 1996, which shows a diagnosis of obstructive sleep apnea; private treatment reports from March 2002, which show a diagnosis of follicular bronchiolitis, with associated interstitial lung disease secondary to primary biliary cirrhosis; and a private treatment report from 2002, which shows a diagnosis of coronary artery disease. Based on the above, there is no evidence that the Veteran had problems with his heart, liver, lungs, or sleep apnea until many years after separation from active service. Indeed, with the exception of sleep apnea, which was diagnosed in the 1990's, the Veteran testified that his heart, lung, and liver problems began in approximately 2000, nearly 40 years after separation from service. See Hearing Transcript, pp. 20-21. This lengthy gap between service and the first documented evidence of heart, lung, liver and sleep apnea problems provides highly probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Board has also considered the Veteran's statements that he was exposed to jet fuel and asbestos during service. However, there is no evidence of record linking exposure to these substances to the Veteran's his heart, lung, liver, or sleep apnea problems. As to his reported exposure to asbestos, there is no specific statutory guidance with regard to asbestos related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has 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 information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court of Veterans Appeals (now the Court of Appeals for Veterans Claims and hereinafter the Veterans Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C 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). Sleep apnea, coronary artery disease, primary biliary cirrhosis, idiopathic follicular bronchiolitis are not mentioned as diseases attributable to asbestos exposure. There is simply no basis for finding that, even if the Veteran was exposed to asbestos, such exposure had anything to do with his claimed disabilities. With respect to lung/pulmonary conditions other than follicular bronchiolitis, it is noted that the Veteran has never been diagnosed with asbestosis. In this regard, the Board acknowledges that a March 2002 private treatment record showed a diagnosis of "connective tissue disease-associated interstitial lung disease." However, the etiology of this lung condition has been expressly attributed to his non-service connected primary biliary cirrhosis, as a secondary condition. See National Jewish Medical Center Clinic Summary, March 2002 (diagnosing follicular bronchiolitis representing connective tissue disease associated with interstitial lung disease secondary to primary biliary cirrhosis). There record contains no medical evidence to the contrary. In fact, upon VA examination in September 2009, the examiner indicated that none of the claimed disabilities (i.e., heart, lung, and liver) were related to service, as his exposure to asbestos was "most likely minimal compared to others" and because he showed no radiological signs of asbestosis. He also noted that he was unaware of any information that would allow for service connection based on exposure to solvents and jet fuel. With respect to sleep apnea, in an April 2010 addendum, the examiner opined that the Veteran's sleep apnea was not related to service or any incident therein. He additionally noted that sleep apnea was not a regularly know complication of any toxic exposures. To the extent that the Veteran claims that exposure to asbestos and jet fuel caused any of his claimed disabilities, and given that he has not demonstrated medical knowledge beyond that of a layperson, the Board must determine if the question of whether the Veteran's disabilities were caused by exposure to these substances is the type of question to which a layperson is competent to provide a probative opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Several cases provide guidance to the Board in making this determination. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held as follows: 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). In Jandreau, the Federal Circuit provided an example stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical question such as a form of cancer. Id. at footnote 4. This indicates to the Board that the complexity of the question at issue is a factor to be considered when determining if a layperson's opinion is competent evidence. The Veterans Court has held that varicose veins that have become visibly tortuous or dilated are observable by lay people and because varicose veins may be diagnosed by these unique and readily identifiable features, the determination that the layperson has varicose veins is not one restricted to medical experts. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This case echoed the Veterans Court's explanation as to the foundation necessary to support lay testimony in Layno v. Brown, 6 Vet. App. 465 (1994). In Layno, the Court explained that "lay testimony is competent only so long as it remains centered upon matters within the knowledge and personal observations of the witness." Id. at 470. Common to these cases is that a layperson is competent to provide evidence that is based upon that person's observations and personal knowledge. It requires no specialized knowledge to observe a broken bone or tortuous and dilated veins, to describe personally observed symptoms, or to hear and repeat the words of a medical professional relating a diagnosis. Here, the relationship between the claimed exposure to jet fuel and asbestos and his lung, heart, liver, and sleep apnea problems is not one that is directly observable or within one's personal knowledge. Nor is it a simple question. For these reasons, the Board finds that lay opinion evidence in this regard is not competent evidence. Indeed, the Board affords greater probative value to the competent medical opinion provided by the September 2009 VA examiner, (and the addendum), who, after thoroughly reviewing the claims file and physical examination of the Veteran, concluded that his claimed disabilities were not related to service. Finally, it is noted that the record includes various internet articles that the Veteran has submitted in support of his claim. The submissions are very general in nature and do not address the specific facts of the Veteran's claims before the Board. As this generic medical journal or treatise evidence does not specifically state an opinion as to the relationship between the Veteran's current lung, heart, liver, and sleep apnea problems and in-service exposure to jet fuel and/or asbestos, it is insufficient to establish the element of medical nexus evidence. See Sacks v. West, 11 Vet. App. 314 (1998). In summary, the evidence is against a finding that the Veteran's heart, lung, liver and sleep apnea problems had onset during service, or that they were otherwise manifest to a degree of 10 percent within one year from date of termination of service. The Veteran's service treatment records are silent as to complaints, treatment, or diagnoses relating to heart, liver, lung or sleep apnea problems. Moreover, by the Veteran's own admission, these conditions did not manifest until many years after his separation from service. There is no competent evidence of record that these disabilities are related to his active service, including as due to any exposure to jet fuel, or asbestos. Again, the April 2010 VA examiner reached the opposite conclusion, finding that none of the conditions were related to service. With respect to the Veteran's lung condition, private examiners have opined that his follicular bronchiolitis representing connective tissue disease associated with interstitial lung disease is secondary to his liver condition (which is not a service- connected disability). Thus, there is no other medical evidence of record to suggest that his lung condition is related to asbestos exposure and/or fuel exposure, or is otherwise related to service. Moreover, because the Veteran had no service in the Republic of Vietnam, but only in the waters outside the borders of the Republic of Vietnam, service connection cannot be presumed as due to exposure to an herbicide agent during service. There is no evidence that the Veteran was otherwise exposed to an herbicide agent during service. Hence, the appeal must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). ORDER Entitlement to service connection for coronary artery disease, including as secondary to jet fuel exposure, is denied. Entitlement to service connection for liver disease, including as secondary to jet fuel exposure, is denied. Entitlement to service connection for interstitial lung disease, including as secondary to jet fuel exposure, and/or asbestos exposure, is denied. Entitlement to service connection for sleep apnea is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs