Citation Nr: 1209443 Decision Date: 03/13/12 Archive Date: 03/28/12 DOCKET NO. 07-10 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a disability related to exposure to asbestos. 2. Entitlement to service connection for a disability claimed as actinic keratosis (AK), and chloracne, as secondary to herbicide exposure. 3. Entitlement to service connection for multiple myeloma as secondary to herbicide exposure. 4. Entitlement to service connection for an acquired psychiatric disorder, to include nervousness and sleep disorders. ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was scheduled in December 2009 and the Veteran failed to appear. The Veteran has not indicated good cause for his failure to appear nor has he requested a new hearing, and, therefore, the Board concludes his request for a hearing is withdrawn. This case was previously remanded by the Board in July 2010. FINDINGS OF FACT 1. The Veteran is not shown to have a current asbestosis disability, or any other pulmonary disorder that could be attributed to any claimed asbestos exposure, for VA compensation purposes. 2. The Veteran had verified service in the Republic of Vietnam. 3. The Veteran's skin disorder was not shown in service and has not been shown by competent evidence to be related to an injury or disease incurred in service, to include presumed exposure to Agent Orange herbicides. 4. The Veteran has not had a diagnosis of chloracne or multiple myeloma during the appeals period. 5. The Veteran's psychiatric disability, diagnosed as anxiety disorder, has been shown by competent evidence to be related to service. CONCLUSIONS OF LAW 1. A pulmonary disorder, to include asbestosis, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. A skin disorder, to include chloracne and actinic karatoses (AK), is not shown to be due to a disease or injury that was incurred in or aggravated by service; nor may it be presumed to have been incurred therein; nor may it be presumed to have been due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2011). 3. Multiple myleoma is not shown to be due to a disease or injury that was incurred in or aggravated by service; nor may it be presumed to have been due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2011). 4. Resolving doubt in favor of the Veteran, service connection for an anxiety disorder is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the Veteran filed his service connection claims in January 2006. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in March 2006, September 2006, and July 2010. These letters notified the appellant of VA's responsibilities in obtaining information to assist the claimant in completing his claim, identified the claimant's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Subsequently, the claim was reviewed and a statement of the case (SOC) was issued in December 2011. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir 2007). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in March 2006. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. Statements from the Veteran and his representative, service treatment records, service personnel records, and a VA examination report dated in August 2010 have been associated with his claims file. Furthermore, the Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Laws and Regulations General Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (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. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Asbestos In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates in 2005 and 2006. M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Ch.2 Section C, Topic 9 (Dec. 13, 2005) and Section H, Topic 29 (Sep. 29, 2006). The guidelines note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The guidelines point out that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. The guidelines further specify that asbestos fibers may produce asbestosis, pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Id. With these claims, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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, keeping in mind the latency and exposure information discussed above. Id. The VA General Counsel has held that relevant factors in the adjudication manual are not substantive, but must be considered by the Board in adjudicating asbestos-related claims. VAOPGCPREC 4-00. Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the 'positive' evidence in favor of the claim is in relative balance with the weight of the 'negative' evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Herbicide Exposure A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Chloracne or other acneform disease consistent with chloracne shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii) (2011). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 67 Fed. Reg. 42600-42608 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2011). Factual Background Service medical records, including October 1963, January 1964, and January 1967 examination reports, are negative for any findings of an acquired psychiatric disorder, a skin disorder, multiply myeloma, or a lung/respiratory disorder. In a May 1967 VA examination report, the examiner noted skin, psych, and respiratory systems as normal. In a November 2004 VA progress note, the Veteran complained of a rash over the ankles and legs off and on, about every three to four months. He denied a history of respiratory problems including dyspnea on exertion or at rest. Upon examination, the examiner diagnosed possible contact dermatitis and Lichen simplex et chronicus (chronic itching and scratching). A posttraumatic stress disorder (PTSD) screening was also found positive. In a December 2004 VA dermatology note, the Veteran complained of a two year history of pruritic dermatitis of the ankles and feet. Upon examination, the diagnoses were actinic keratoses and lichen simplex chronicus. During a December 2004 VA Agent Orange examination, the Veteran complained that, since Vietnam, he "breaks out and itches." Upon examination, the examiner found his respiratory system was negative, and a rash on his head and legs noted as constant for two years with itch. The diagnosis was rash since Vietnam. In a July 2005 VA progress note, the Veteran complained of difficulty sleeping, and of persistent depression for two years. He also complained of shortness of breath. In a May 2006 statement, the Veteran claimed that from May 1966 to January 1967, he was aboard the USS Isle Royal off the coast of Chu Lai, Vietnam. He stated that he was sent ashore to help remove a landing craft that went aground and that he was on shore for approximately four months before he was flown home for discharge. The Veteran reported that he was exposed to Agent Orange and asbestos while serving in the Navy. He claimed he was sure that he has chloracne and multiple myeloma. In a July 2006 statement, the Veteran asserted that he also flew form Chu Lai to DaNang, Vietnam to catch a flight to the U.S. for his discharge in January 1967. In a July 2006 VA progress note, the examiner noted a diagnosis of pruritis. The Veteran's brother, W. N., submitted a letter dated in July 2006 which he remembers that the Veteran disembarked by landing craft to the shores of Chu Lai, Vietnam in November 1966 to help move a landing craft which had went aground. During an August 2010 VA examination, the Veteran complained of dyspnea on exertion which developed over the past several years. He claimed he had never smoked and denied any history of a lung condition. He specifically denied any history of asbestosis. The examiner noted that the claims file, including the VA progress notes, indicate no history of asbestosis or any diagnostic studies consistent with a diagnosis of asbestosis. He was not on any treatment for dyspnea. The diagnosis was dyspnea with no evidence of asbestosis. The VA examiner also examined the Veteran's skin. The Veteran complained of a history of a rash on his feet since about 1968 which had been intermittent and not progressive. He also reported a history of actinic keratosis since about 1968 which had been continuous and progressive. The examiner reviewed the claims file, including the VA progress notes, and they gave diagnoses of lichen simplex chronicus, actinic keratosis, and tinea pedis. Upon examination, the examiner noted there was no evidence of chloracne. Service treatment records only noted "an abscess between the eyes." There was no indication of actinic keratoses, lichen simplex chronicus, chloracne, onychomcosis, tinea curis, or tinea pedis while in the military. The Veteran denied a history of multiple myeloma, and the examiner noted there were no medical records that supported a diagnosis of multiple myeloma, asbestosis or chrolacne. The diagnoses included lichen simplex chronic and actinic keratoses which are unlikely to be related to military service as the diagnoses were not established until 39 years after leaving the military service. During an August 2010 VA psychiatric evaluation, the Veteran reported episodic fluctuations of psychiatric symptoms since 1966 to 1967. He complained of sleeping problems since the military and claimed that he slept with a gun next to his nightstand. He is alert during night hours and receives approximately four to five hours of interrupted sleep a night. He reported he will have anticipatory feelings of helplessness and anxiety when he senses that something might happen- he related that he realized this is not practical, but still has this feeling. He relayed that he has difficulty trusting others and this is highlighted by recent world events. He reported that his military functioning is "still in my brain." He also described feeling depressed about physical limitation since approximately five or six years ago. After evaluation, the diagnosis was anxiety disorder. The examiner opined that his disorder was at least as likely as not related to the Veteran's service and more likely than not related to the Veteran's symptoms of nervousness and trouble sleeping. The examiner also diagnosed depressive disorder, less likely than not secondary to anxiety disorder and at least as likely as not related to physical limitations. A VA pulmonary function test dated in July 2010 was normal. In a July 2011 statement, the Veteran reported exposure to asbestos while working in the repair division as an electrician onboard the USS Isle Royale. In an undated document, it was noted that he USS Isle Royal salvaged the beached USS Mahnomen County at Chu Lai during January 1966 with crewmembers going ashore for stripping operations. Analysis Entitlement to Service Connection for an Acquired Psychiatric Disorder In view of the totality of the evidence, including the Veteran's documented generalized anxiety disorder and his diagnosis of anxiety in service, the Board finds that the Veteran's anxiety disorder is as likely as not a result of active service. Consequently, the Board finds that the evidence of record is at least in equipoise, and therefore, affording the Veteran the benefit of the doubt, service connection for an anxiety disability is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to Service Connection for a Respiratory Disorder In this case, the Board finds the evidence fails to show any respiratory disorder was incurred in or aggravated by active duty service. For asbestosis, the Board finds the evidence weighs against the finding of a current asbestosis disorder. Service treatment records are negative for any kind of asbestos related disorder. For dyspnea on exertion, the Board finds evidence shows that the Veteran's disorder is not related to service. Evidence of a diagnosis of dyspnea is first shown in August 2010, more than 30 years after separation from active service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, the record also includes no competent medical opinion establishing a nexus or medical relationship between a current respiratory disability diagnosed post-service and events during the Veteran's active service, and neither the Veteran nor his representative have presented, identified, or alluded to the existence of, any such opinion. Consequently, the Board finds that entitlement to service connection for dyspnea is not warranted. With respect to the Veteran's own contentions that he has a current respiratory disability due to service, a layperson is generally not capable of opining on matters requiring medical knowledge. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is 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). While he may sincerely believe that his present lung disorder was either incurred in or aggravated during service, he is not a licensed medical practitioner and he is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91. Furthermore, although the Veteran may have been exposed to asbestos during his three years while in service, the fact remains that he does not presently have a diagnosis of asbestosis or any other identified disease related to asbestos exposure. Entitlement to Service Connection for a Disability Related to Herbicide Exposure The Veteran contends that he developed a skin condition, as well as multiple myeloma, as a result of an in-service event, specifically Agent Orange exposure. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim and the appeal must be denied. The Board initially notes that the Veteran does not now, nor ever, has a diagnosis of multiple myeloma or chloracne; therefore, service connection for those disorders is not warranted. Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110. Hence, in the absence of proof of a present diagnosis of a multiple myeloma or chloracne disorder (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 143- 144 (1992). Furthermore, in the absence of a current clinical diagnosis of multiple myeloma or chloracne, service connection must be denied. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a disability existing on the date of the application, and not for a past disability); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim). Exposure to Agent Orange is conceded, as service personnel records show that the Veteran likely served in the Republic of Vietnam during active service. However, the Veteran's diagnosed skin disabilities are not classified as one of the enumerated diseases associated with Agent Orange exposure under 38 C.F.R. § 3.309(e) (2011). Consequently, the Veteran's claim cannot be granted on this basis. However, the regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. In this case, service treatment records do not reveal any findings, diagnosis, or treatment of a chronic skin disorder during active service. Objective medical findings of a skin disability are first shown in 2008, more than 35 years after separation from active service and cannot be presumed to have been incurred during service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection). Significantly, the record also includes no competent evidence, including medical opinions, establishing or even suggesting a nexus or medical relationship between a current skin disorder diagnosed post-service and events during the Veteran's active service, including herbicide exposure. Further, neither the Veteran nor his representative has presented, identified, or alluded to the existence of, any such opinion. Consequently, the Board finds that entitlement to service connection for AK is not warranted. In connection with the claim, the Board also has considered the assertions the Veteran has advanced on appeal. However, the Veteran cannot establish a service connection claim on the basis of his assertions alone. While the Board does not doubt the sincerity of the Veteran's belief that his current skin disability is associated with military service, this claim turns on a medical matter--the relationship between current disability and service. Questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layperson lacking the appropriate medical training or expertise, the veteran simply is not competent to render a probative (i.e., persuasive) opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, this assertion in this regard simply does not constitute persuasive evidence in support of the claim for service connection. All Claims For the foregoing reasons, the claims for service connection for a disability related to asbestos, AK, multiple myeloma, chloracne, and an acquired psychiatric disorder must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine in this decision. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a disability related to exposure to asbestos is denied. Entitlement to service connection for a disability claimed as actinic keratosis (AK), multiple myeloma, and chloracne, as secondary to herbicide exposure is denied. Entitlement to service connection for multiple myeloma as secondary to herbicide exposure is denied. Entitlement to service connection for an acquired psychiatric disorder to include nervousness and sleep disorders is allowed. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs