Citation Nr: 1220171 Decision Date: 06/08/12 Archive Date: 06/20/12 DOCKET NO. 08-25 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, including gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for a heart disorder. 3. Entitlement to service connection for a lung disorder, including as secondary to asbestos exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to October 1967. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Because they require further development before being decided on appeal, the Board is remanding the claims to the RO via the Appeals Management Center (AMC). REMAND A VA aid and attendance or housebound examination in April 2007 resulted in diagnoses of a heart condition - namely, severe mitral regurgitation secondary to mitral valve prolapse - also of GERD and chronic obstructive pulmonary disease (COPD), although it was additionally indicated the Veteran did not have evidence of asbestosis. A supplemental statement was provided in May 2007. Service connection is granted for disability resulting from a disease or an injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Notwithstanding the above, service connection may be granted for disability shown after service, when the evidence, including that pertinent to service, shows the disability was incurred in service. 38 C.F.R. 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). If the condition was not directly incurred in service, then it must be determined whether it pre-existed the Veteran's service and, if so, whether it was aggravated by his service beyond its natural progression. But different standards of proof apply depending on whether the condition in question was "noted" when entering service, meaning detected at the time of his enlistment examination, and also governs who bears this burden of proof, him or VA. See VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Certain chronic diseases (such as cardiovascular diseases, including hypertension) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). But if chronicity of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, relate current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage, 10 Vet. App. at 495-97. To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). As for his claims for service connection for heart and gastrointestinal disorders, in reviewing the service treatment records (STRs), the November 1964 enlistment examination report shows the Veteran entered service with a heart disorder, a systolic murmur. He was also treated for acute gastroenteritis during service in June 1965. The medical and other evidence in the file, however, is insufficient to determine whether the systolic murmur noted at the outset of his service and the gastroenteritis diagnosed during his service are related to his currently diagnosed heart and gastrointestinal disorders. According to McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a medical examination in a service-connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of the disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Furthermore, he is competent even as a layman to proclaim having experienced stomach and chest pain since service, even if not also competent to say it is necessarily the result of his military service and the claimed gastrointenstinal and heart disorders. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, VA is not obligated to provide examinations for medical nexus opinions based on unsubstantiated lay statements alone. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). However, where, as here, the Veteran is competent to testify to his continuous symptoms like chronic chest and abdominal pain since service, there is at least the required evidence to schedule a VA compensation examination for medical nexus opinions. So these claims must be remanded so VA compensation examiners may evaluate him and determine the etiology of his current disabilities. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). And as for his claim for service connection for a lung or respiratory disorder, the Veteran alleges he was exposed to asbestos during his military service as a cryptographer. There is no statute specifically dealing with 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 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols using the following criteria. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The RO 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 latency and exposure information. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id., at Subsection (f). 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. Id., at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id., at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id., at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether 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. Id., at Subsection (h). The Veteran's STRs show treatment for acute pharyngitis in September 1966. Post-service clinical records document treatment for right lobe pneumonia in 1996 and current treatment for COPD. His DD Form 214 confirms that his military occupational specialty (MOS) was cryptographer, which is not an occupation usually associated with asbestos exposure. Regardless, this claim must be further developed before it may be properly adjudicated on appeal. In particular, the Veteran's alleged exposure to asbestos needs to be investigated and a VA compensation examination performed to determine what, if any, lung or respiratory condition he has and whether it is the result of exposure to asbestos during his military service (if said exposure first is confirmed). Accordingly, the claims are REMANDED for the following additional development and consideration: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) letter in compliance with DVB Circular and M21-1, Part VI, regarding his alleged exposure to asbestos while in the military. Then take appropriate action to develop any evidence of the Veteran's potential exposure to asbestos before, during, and after his military service. 2. Schedule a VA compensation examination to determine the current diagnosis and etiology of the Veteran's gastrointestinal disorder, especially in terms of the likelihood (very likely, as likely as not, or unlikely) his GERD is directly related or attributable to his military service or dates back to his service. In making these necessary determinations, the examiner should comment on the Veteran's treatment during service for gastroenteritis and any statements he makes in terms of continuing symptoms since service. This term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. Also schedule a VA compensation examination to determine the current diagnosis and etiology of the Veteran's heart disorder. (i) first determine whether the Veteran clearly and unmistakably had pre-existing heart disorder when he entered military service, including especially on account of a systolic murmur. (ii) If it is determined the Veteran clearly and unmistakably had a pre-existing heart disorder, regardless of the severity of it, is there also clear and unmistakable evidence this pre-existing heart disorder was not aggravated during or by his military service beyond its natural progression. (iii) If, instead, it is determined the Veteran did not have pre-existing heart disorder, then what is the likelihood (very likely, as likely as not, or unlikely) his current heart disorder: (1) initially manifested during his military; (2), alternatively manifested within the one-year presumptive period following his service; or (3) is otherwise related or attributable to his service. In providing this medical opinion, the designated examiner must remain mindful of the differing standards of proof. "Clear and unmistakable evidence" means with a much higher certainty than "as likely as not" or "very likely". See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). 4. As well schedule the Veteran for a VA examination by an appropriate specialist to determine the nature and etiology of his current COPD. The examination is to include a review of the Veteran's history and current complaints, as well a comprehensive evaluation of his lungs, and any tests deemed necessary. (Please note: the Veteran is competent to attest to asbestos exposure in service and any continuity of symptoms thereafter). The Board will have the responsibility of assessing his credibility to, in turn, determine the ultimate probative value of his lay testimony concerning this and other matters related to this claim. The examiner is asked to offer an opinion responding to the following questions: (i). Does the Veteran currently have any residuals of asbestos exposure? (ii). Please specify the diagnosis (or diagnoses) of any current respiratory disorder, including COPD. (iii). The examiner is asked to furnish an opinion as to likelihood (very likely, as likely as not, or unlikely): (1) that any current condition had its onset during the Veteran's period of military service; or, (2) that such condition was caused by any incident or event that occurred during such service, including especially asbestos exposure (assuming it is confirmed said exposure in fact occurred)? All necessary diagnostic testing and evaluation needed to make these determinations should be performed. The designated examiners must review the claims file, including a complete copy of this remand, for the Veteran's pertinent medical and other history. The examiners must discuss the rationale of their opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The Veteran is hereby advised that failure to report for these medical examinations, without good cause, may have adverse consequences on these pending claims. 5. Then readjudicate these claims in light of all additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to submit written or other argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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 Supp. 2011). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).