Citation Nr: 1127083	
Decision Date: 07/20/11    Archive Date: 07/29/11

DOCKET NO.  03-28 574	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for a lung disorder, claimed as due to asbestos exposure.

2.  Entitlement to service connection for diabetes mellitus, type II, claimed as due to Agent Orange herbicide exposure.

3.  Entitlement to service connection for a heart disorder, claimed as due to Agent Orange herbicide exposure.

4.  Entitlement to service connection for depression, also claimed as secondary to diabetes mellitus, type II.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel


INTRODUCTION

The appellant is a veteran who served on active duty from October 1969 to February 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 

The case was brought before the Board in December 2008, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him appropriate VA examinations. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issues on appeal.  

The Board notes the Veteran also perfected an appeal seeking service connection for bilateral sensorineural hearing loss.  This claim was granted during the pendency of this appeal in a March 2010 rating decision and, therefore, the issue is no longer in dispute or before the Board here.

The issues of entitlement to service connection for diabetes, a heart condition and depression 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.  The VA will notify the Veteran if further action is required on his part.



FINDING OF FACT

The Veteran does not have a lung disorder.


CONCLUSION OF LAW

The Veteran's claimed lung disorder was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, and 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, and 3.309 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  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 Veteran 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).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

The notice requirements were met in this case by letters sent to the Veteran in July 2002, September 2003 and February 2007.  The letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  The 2007 letter also advised the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  That was done in this case.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The claimant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

The RO provided the Veteran an appropriate VA examination in August 2010.  The examination is adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  Further examination or opinion is not needed because, at a minimum, there is no persuasive and competent evidence that the claimed condition may be associated with the Veteran's military service.  This is discussed in more detail below.  

Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claim.  

Service Connection (Lung Disorder)

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions.  Id.  When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service.  38 C.F.R. § 3.303(d).  

In the absence of a presumption, 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).

In this case, the Veteran claims he has a lung disorder as a result of in-service asbestos exposure.  The Veteran reports that while in Germany he saw frayed asbestos wrapped around piped on base.   He worked around the asbestos in the motor pool at Vogelweh, Kaiserslautern Military Community in Germany.

Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991) (lay assertion cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [the witness's] experience;" witness not competent to describe motive because testimony too much like psychoanalysis, for which witness not qualified).

Accordingly, the Veteran is competent to describe the details of the military base he worked on and his past MOS.  He is also competent to describe his current respiratory symptoms.  The Veteran, however, is not competent to diagnose himself with a lung disorder or associate any such diagnosis with in-service events.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), but see Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The Veteran's military records confirm the Veteran worked in Germany as a motor transport operator and light vehicle driver.  

There is no presumption, however, that a veteran was exposed to asbestos in service.  Dyment v. West, 13 Vet. App. 141 (1999), aff'd Dyment v. Principi, 287 F.3d 1377 Fed. Cir. 2002); see VAOPGCPREC 4-2000.  

In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. 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 applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include 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, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). 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 id. at 7.21(b)(2).

"Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI,  7.21(c).

Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000.

The Board notes in-service asbestos exposure has not been objectively confirmed, but the matter is irrelevant here because, as is discussed below, the Veteran does not currently have a lung disorder.

The Veteran's service treatment records do not confirm in-service incurrence of a lung disorder.  Even if a chronic condition was not shown during service, however, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service.  

After service, VA outpatient treatment records are largely silent as to complaints or lung manifestations.  The Veteran did complain of chest pains in June 2001.  At that time the EKG was within normal limits, but the Veteran failed to return for a follow-up visit where additional diagnostic tests were to be conducted.  Similarly, in November 2004, the Veteran complained of chest pains.  The lungs were normal on examination, but further workup had not been completed.

The Veteran was afforded a VA examination in August 2010 where after a thorough examination and diagnostic tests were completed, the examiner again found no clinical evidence of a lung disorder.  

In short, the Veteran does not currently have a diagnosis of any chronic respiratory disease.  Direct service connection requires a diagnosis of a current disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); see also, Hickson, supra.  The most probative evidence of record is against such a finding in this case.  In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

Entitlement to service connection for a lung disorder, claimed due to asbestos exposure, is denied.


REMAND

Unfortunately, the claims seeking service connection for diabetes, a heart disorder and depression must be remanded because the AMC did not follow the Board's prior, August 2008, remand order.   The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran claims he has diabetes and a heart disorder due to in-service herbicide exposure while stationed in Germany.  Specifically, the Veteran claims various environmental hazards while working in the motor pool at Vogelweh, Kaiserslautern Military Community in Germany, to include being sprayed with herbicides around the base to control plant growth.  

When the Board last remanded these claims in December 2008 it was for the purpose of taking appropriate steps to attempt to verify the Veteran's claimed herbicide exposure while stationed in Germany.

Specifically, VA's procedure manual requires certain protocols and development steps be completed to attempt to verify a veteran's herbicide exposure in locations other than Vietnam or Korea.  See M21-1MR IB.11.2.C.10.1.  These procedures were not completed and the Board once again remands for compliance with M21-1MR.

The Veteran claims that his depression is attributable to his other medical disabilities, specifically diabetes mellitus.  Indeed, the Veteran was afforded a VA examination in March 2009 where the examiner diagnosed the Veteran with dysthymic disorder and anxiety disorder at least partially related to the Veteran's diabetes diagnosis.  That is, the examiner opined that the Veteran had anxiety and depression since childhood, but these ailments worsened after his diagnosis of diabetes 18 years ago.

For this reason, the Board finds the Veteran's claim seeking service connection for depression, secondary to diabetes mellitus, type II, to be "inextricably intertwined" with the diabetes claim on appeal here.  The Court has held that all issues "inextricably intertwined" with an issue certified for appeal, are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 181 (1991).  Here, the RO is advised that the depression issue must be adjudicated after full development and adjudication of the Veteran's diabetes issue also on appeal here.  Id.

The AMC should also take this opportunity to obtain VA outpatient treatment records from October 2005 to the present.




Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's medical records for treatment from the VA Medical Center in Lexington, Kentucky from October 2005 to the present.  All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available.

2.  Attempt to verify the likelihood that the Veteran was exposed to herbicides is service, and specifically in Germany, using current department guidelines, to include those found in M21-1MR IB.11.2.C.10.1.  All attempts to verify such exposure, and responses received, should be documented in the claims file.

3.  After the above development is complete, the RO should review the evidence and complete any additional development warranted by the new evidence to include, but not limited to, affording the Veteran for additional VA examination(s) if necessary.

4.  The RO should then readjudicate the claims on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran 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).

These claims 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 2002).



______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs