Citation Nr: 1218142 Decision Date: 05/22/12 Archive Date: 05/31/12 DOCKET NO. 09-41 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for pulmonary sarcoidosis, including as due to asbestos exposure. 2. Entitlement to service connection for a dental disorder for purposes of receiving Department of Veterans Affairs (VA) outpatient dental treatment. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to August 1972. This appeal to the Board of Veterans' Appeals (Board) is from a November 2008 rating decision of the VA Regional Office (RO). The Veteran testified at a hearing at the RO in October 2011before the undersigned Veterans Law Judge of the Board (Travel Board hearing). During the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT 1. The Veteran did not contract a respiratory disease or sustain relevant injury during his military service, did not experience chronic symptoms of a lung disorder during service, and did not continuously from the time of his separation from service in August 1972 until the initial diagnosis of sarcoidosis some 5 years later in 1977. 2. He also did not file a claim for treatment for a dental condition within one year of his discharge in August 1972, and the record does not include evidence of dental trauma as a result of combat wounds or other injury in service, nor is there evidence of circumstances that would qualify him for VA dental treatment under any additional category providing for such treatment. CONCLUSIONS OF LAW 1. A respiratory disorder, claimed as pulmonary sarcoidosis, was not incurred in or aggravated by service - including from exposure to asbestos - and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 2. The criteria also are not met for entitlement to service connection for a dental disorder for purposes of receiving VA outpatient dental treatment. 38 U.S.C.A. §§ 1712, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate his claim. See 73 FR 23353 (Apr. 30, 2008). These VCAA notice requirements apply to all five elements of a service-connection claim: (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), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the Veteran, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, October 2008, January 2009, and February 2009 letters were sent. Complete notification was not provided to the Veteran prior to initially adjudicating his claim in the November 2008 decision at issue in this appeal. These letters informed him of the evidence required to substantiate his claim for service connection and of his and VA's respective responsibilities in obtaining this supporting evidence. He also was advised of the downstream disability rating and effective date elements of his claim. And although complete information was sent after the initial adjudication of his claim, so not in the preferred sequence, his claim since has been readjudicated in the August 2009 SOC so since providing this additional notice letter, in turn meaning the timing defect in the provision of this additional letter, since it did not precede the initial adjudication of the claim, has been rectified ("cured"). See again Mayfield IV and Prickett, supra. The Court has held that VA must analyze a claim for service connection for asbestosis or asbestos-exposure-related disabilities under the appropriate administrative guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The RO wrote the Veteran in February 2009 in accordance with a DVB Circular and the M21-1 guidelines regarding his claimed exposure to asbestos while in service, as well as prior to or since his service. He was instructed that to substantiate his claim, medical information was needed establishing that he had an asbestos-related disease. He was requested to submit the evidence within 30 days; however, he could take longer than 30 days but should try to ensure that it was received within one year from the date of the RO's July 2010 letter. He submitted post-service medical treatment records, lay people's statements, and an internet article about sarcoidosis; but he failed to provide, identify or cite to any evidence regarding his claimed exposure to asbestos while in service, and VA's duty to assist him with his claim is not a one-way street where he has or has knowledge of putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As for the duty to assist him with his claim, in addition to the evidence mentioned that he submitted personally, the RO obtained his service treatment records (STRs) and private medical records. The Board realizes that, to date, he has not been provided a VA compensation examination for an etiology opinion. In this regard, in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in service-connection claims, VA must provide a VA medical examination 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 that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 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 indicates an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, though, there is no such suggestion of an association between the claimed disability, sarcoidosis, and the Veteran's military service - and particularly to his claimed exposure to asbestos. He also has not established that he was exposed to asbestos during his service, so has not shown the claimed precipitating event occurred. Therefore, having him examined would in effect place the examiner in the role of fact finder, and VA adjudicators, not examiners, making findings of fact, whereas the examiners make the medical findings based on established facts. So this case is not unlike the situation in Charles v. Principi, 16 Vet. App. 370 (2002), discussing how requesting an examination without proof of the claimed injury in service - which again, here, is exposure to asbestos - would have the effect of placing the designated examiner in a role that is beyond his competence. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (Where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). As such, a VA examination is not "necessary" to decide this claim, and no further development is required to obtain additional etiology information. Id. Thus, as there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. With respect to the Veteran's dental claim, the Board observes that there is no debate as to the relevant facts underlying this issue. The claim turns on a simple application of the law to these facts (i.e. whether the Veteran meets the criteria for any of the classes of available dental treatment under 38 C.F.R. § 17.161). Whether the Veteran is entitled to such treatment is wholly a matter of interpretation of the pertinent statute and regulations. Therefore, VA's duties under the VCAA do not apply to this claim. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000) (holding that the VCAA is inapplicable to matters of pure statutory interpretation). Based on the foregoing, the Board finds that VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Analysis A. Sarcoidosis Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated in the line of duty during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, establishing entitlement to direct service connection requires: (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 his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible of a nexus or link between the in-service disease or injury 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). Certain diseases - including sarcoidosis - are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from 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). If chronicity (i.e., permanency) 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). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). 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 of disease or injury in service and, in turn, link the currently claimed 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). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Turning now to the facts of this particular case. As explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent evidence of the existence of the currently claimed disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). Here, the Veteran and three of his friends have stated that he was diagnosed with sarcoidosis around 1977 or 1978, and current private medical treatment records confirm that he has residuals of pulmonary sarcoidosis. So there is no disputing he has this claimed condition. In addition, the Board accepts his and his friends' statements that he was diagnosed with sarcoidosis in 1977 or 1978, even absent any actual medical records confirming as much since reportedly no longer available. See Jandreau, Davidson, supra. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (wherein the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Indeed, both in Buchanan and other precedent cases, the Federal Circuit Court recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Moreover, if a disability is not alleged to have been incurred in combat, Buchanan is distinguishable; the lack of documentation in service records and since must be weighed against the Veteran's statements. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In cases involving combat, VA is prohibited from drawing an inference from silence in the STRs. But in cases where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011). In this circumstance, however, the Board must make two preliminary findings in order to rely on this inference (see Kahana): (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence." See Kahana, at *15. See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues." See Kahana, at *15. The Board therefore, in the appropriate circumstance, may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. 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). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence that demonstrated continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). So, here, the determinative issue is whether the sarcoidosis, even assuming it was first diagnosed as alleged in 1977 or 1978, is attributable to the Veteran's military service, which had earlier ended in 1972, and especially to exposure to asbestos. 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."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). There is no specific statutory guidance with regard to asbestos-related claims, nor has the VA 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 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). Subpart ii of M21-1MR Part IV, lists some of the major occupations involving exposure to asbestos including 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 and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. This particular Veteran, however, did work in any of these occupations while in service. And even assuming his initial diagnosis of sarcoidosis was in 1977 or 1978, that still was about 5 to 6 years after the conclusion of his service in 1972, when he supposedly had been exposed to asbestos, so beyond the one-year presumptive period that had expired in August 1973 requiring that his sarcoidosis have initially manifested to a compensable degree of at least 10-percent disabling. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). There remains for consideration, however, the accepted latency between the time of exposure to asbestos and the eventual development of disease, which, as mentioned, can range from 10 to 45 or more years. And service connection is permissible for any disease initially diagnosed after service, if the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). With respect to claims involving asbestos exposure, 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 in service and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). VA satisfied these requirements by obtaining the Veteran's service personnel files, which confirmed his military occupational specialty (MOS) as packager of passenger and household goods. The pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGPREC 4-2000. Setting aside for the moment the question of whether the Veteran was exposed to asbestos during his military service in the manner alleged, he first has to establish that his claimed condition is an asbestos-exposure-related disease. The medical evidence of record does not show, nor does he allege, that he has been diagnosed with an asbestos-related disease. M 21-1MR, Part IV, subpart ii, Chapter 2, Section C, supra. His STRs are unremarkable for any complaints or treatments relating to his lungs or pulmonary functioning as might warrant service connection on the basis of an in-service incurrence. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). His STRs do note that he was treated for a swollen gland in his neck. His throat was sore. There was no lymphadenitis or sinus tenderness. He was given an antibiotic. In the history section of his separation examination report dated in July 1972, he described his health as "excellent." He checked "yes" to the questions regarding whether he ever had or then currently had ear, nose and throat trouble and hay fever. He denied having all other conditions on the list. Specifically, he checked "no" to the questions regarding whether he ever had or then currently had asthma, shortness of breath, pain and pressure on his chest, and chronic cough. It was also noted that he had been treated for hay fever in service, that he was allergic to dust and certain odors, but that there were no complications or sequelae of the condition. The entire physical examination was grossly normal, including the nose, sinuses, mouth, throat, lungs and chest portions. He contends that his barracks in service was old and that, as a consequence, asbestos particles leaked from the ceiling. He believes that is why he developed pulmonary sarcoidosis, which he claims initially manifested during his service and persisted until the initial diagnosis in 1977 or 1978. He also asserts that his treatment during service for a sore throat and hay fever, and that his mention that he was allergic to dust and certain odors, proves that his pulmonary sarcoidosis initially manifested during his service. "Sarcoidosis is a chronic, progressive, systemic granulomatous reticulosis of unknown etiology, involving almost any organ or tissue, including the skin, lungs, lymph nodes, liver, spleen, eyes, and small bones of the hands and feet." Carbino v. Gober, 10 Vet. App. 507, 508 (1997). The Veteran is competent, even as a layman, to proclaim having been exposed to asbestos while in service. See Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent). But the key words are factual matter, so even his firsthand knowledge of something does not necessarily mean it is true and, in fact, occurred. So it is one thing to say he believes he was exposed to asbestos during his service, in the manner alleged, and quite another to have actual proof of this. And, in any event, he is not competent to also establish that his sarcoidosis either began in service or is a residual of the asbestos exposure he claims to have experienced in service. 38 C.F.R. § 3.159(a)(2). See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Pulmonary sarcoidosis simply is not the type of condition that is readily amenable to mere lay comment regarding its diagnosis and etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). Moreover, with respect to the internet article from the Mayo Clinic submitted by the Veteran about the nature of sarcoidosis, normally medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). In this instance, the Veteran apparently contends that the information contained in this article supports his supposition that his sarcoidosis is related to his military service and claimed exposure. The article notes that some people may have a genetic predisposition for developing the disease, which may be triggered by exposure to specific bacteria, viruses, dust or chemicals. The article does not relate information that is specific to the Veteran's history, that he was treated for a sore throat and hay fever in service, he was allergic to dust and certain odors, and first diagnosed with sarcoidosis approximately 5 years after service. The article's use of the equivocal terms "may" when referring to the possible causes of sarcoidosis also renders the statement sufficiently speculative in nature so as to not warrant granting service connection. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). There also is no other competent and credible evidence of record which would tend to establish that his currently diagnosed respiratory disorder, pulmonary sarcoidosis, is etiologically related to his military service - including especially to any exposure to asbestos he may have had. And it is for this reason, a lack of supporting medical nexus evidence, that his claim ultimately fails, not because of any finding regarding whether he was exposed to this toxin while in service, although, as mentioned, he also has not established that either. In addition, the evidence of record does not support a finding that he has continuously experienced symptoms of pulmonary sarcoidosis since he left the military in August 1972. If, as here, there is no showing of chronic, i.e., permanent disability in service, or this is legitimately questionable, then evidence of continuity of symptoms after discharge 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 show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The essence of § 3.303(b) is continuous symptoms, not continuous treatment. There is no such evidence in this particular instance, however, both inasmuch as the Veteran has not accounted for the 5 or so years after service preceding the initial diagnosis of sarcoidosis in 1977 or 1978 when there is no indication he experienced continuous symptoms and insofar as attributing those symptoms, even if experienced, to pulmonary sarcoidis. It is worth reiterating that, according to the holding in Savage, 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. For these reasons and bases, the preponderance of the evidence is against this claim, in turn meaning there is no reasonable doubt to resolve in the Veteran's favor, and that his claim must be denied. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). B. Dental Claim Review of the Veteran's STRs, including especially his dental records, show no teeth were found to have been missing at the time of his entrance into service. Several cavities were filled, and a pulopotomy was performed on one tooth in service. At the time of separation, his four third molars (teeth numbers 1, 16, 17 and 32) were found to have been missing, and teeth numbers 2, 19, and 31 were found to be restorable. He submitted a private dental payment receipt showing that 9 teeth were extracted in 1997, and he was fitted with dentures. He contends that dentists in service tried to fix his dental problems but, due to his relatively brief period of service, much of the dental work was not completed. He therefore asserts that many of his teeth eventually had to be extracted after service because the dental work was not completed in service, thus entitling him to VA outpatient dental treatment to fix these consequent problems. Disability compensation may be provided for certain specified types of service-connected dental disorders (Class I). See 38 C.F.R. § 17.161(a) (2011). There is no time limitation for making application for treatment and no restriction as to the number of repeat episodes of treatment. The types of dental disorders that may be compensable include irreplaceable missing teeth, and disease or damage to the jaw. 38 C.F.R. § 4.150, Diagnostic Codes 9900-16 (2011). Diagnostic Code 9900 contemplates chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. Diagnostic Codes 9901 and 9902 address loss of the mandible. Diagnostic Codes 9903 and 9904 concern nonunion and malunion of the mandible, respectively. Diagnostic Code 9905 addresses temporomandibular articulation and limited jaw motion. Diagnostic Codes 9906 and 9907 contemplate loss of the ramus, and Diagnostic Codes 9908 and 9909 address loss of the condyloid process. Diagnostic Codes 9910 and 9910 concern loss of the hard palate. Missing teeth may be compensable for rating purposes under Diagnostic Code 9913 ("loss of teeth, due to loss of substance of body of maxilla or mandible without loss of continuity"). However, the Note immediately following states, "these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." 38 C.F.R. § 4.150, Diagnostic Code 9913. Loss of the maxilla is addressed under Diagnostic Codes 9914 and 9915. Finally, Diagnostic Code 9916 concerns malunion or nonunion of the maxilla. There is no competent evidence that the Veteran has irreplaceable missing teeth or that his loss of teeth is the result of loss of substance of body of maxilla or mandible. In fact, the post-service evidence shows that these extracted teeth were replaced by dentures. There is no competent evidence, nor does the Veteran contend, that he suffered inservice injury or disease of the jaw, or any of the other conditions listed as compensable dental and oral conditions under the rating schedule. See 38 C.F.R. § 4.150. Therefore, he is not eligible for compensation or Class I treatment for any dental disorder. For other types of service-connected dental disorders, the claimant may receive treatment only, not compensation. See 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161 (2011). Those Veterans having a service-connected, noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma (Class II(a)) may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. See 38 C.F.R. § 17.161(c). Replaceable missing teeth may be considered service connected solely for the purposes of determining entitlement to dental examination(s) or outpatient dental treatment. Simington v. West, 11 Vet. App. 41 (1998). The significance of finding that a dental condition is due to service trauma is that a Veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c) (Class IIa). Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting sustained a sudden trauma; for these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service. 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97; see also Nielson v. Shinseki, 607 F.3d 802, 808-09 (2010) (holding that "service trauma" in 38 U.S.C. § 1712(a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice). The Veteran does not contend, nor does the record indicate, that he experienced any such dental trauma in service. Therefore, he is ineligible for Class II(a) treatment. Service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment, if they are manifested after 180 days of service, in accordance with 38 C.F.R. § 17.161(b) (Class II). In determining service connection, the rating activity will consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in the line of duty during active service. When applicable, the rating activity will determine whether the condition is due to combat or other in-service trauma, or whether the Veteran was interned as a prisoner of war. 38 C.F.R. § 3.381(b). The condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. 38 C.F.R. § 3.381(c). The following principles apply to specific dental conditions noted at entry and treated during service: (1) Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service. (2) Teeth noted as filled at entry will be service-connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service. (3) Teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service-connected. (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service-connected if extraction was required after 180 days or more of active service. (5) Teeth noted at entry as non-restorable will not be service-connected, regardless of treatment during service. (6) Teeth noted as missing at entry will not be service-connected, regardless of treatment during service. 38 C.F.R. § 3.381(d) (2011). The following will not be considered service-connected for treatment purposes: (1) calculus; (2) acute periodontal disease; (3) third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and (4) impacted or malposed teeth, and other developmental defects, unless disease or pathology of those teeth developed after 180 days or more of active service. 38 C.F.R. § 3.381(e). Finally, teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service. 38 C.F.R. § 3.381(f). For veterans discharged prior to October 1981, the application for this one-time dental treatment must have been submitted within one year after service discharge. See 38 C.F.R. § 17.161(b)(2)(i)(B). The Veteran applied for dental treatment in 2008, almost 36 years after separation from service. See Woodson v. Brown, 8 Vet. App. 352, 355 (1995) affirmed in part, dismissed in part by 87 F.3d 1304 (1996) (for veteran's who were discharged prior to October 1, 1981, the applicable time limit to file a dental claim cannot be tolled based on the service department's failure to notify a veteran about his right to file such a claim). Therefore, he is not eligible for Class II treatment. A veteran is also entitled to VA outpatient dental treatment if he qualifies under one of the other categories outlined in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. The evidence does not demonstrate that the Veteran can avail himself of any of the other categories by which VA dental treatment can be provided. Class II(b) and Class II(c) treatment require that the claimant be a prisoner of war, a status not accruing to the Veteran. See 38 C.F.R. § 17.161(d), (e). Class IIR (Retroactive) eligibility requires that a veteran who had made prior application for VA dental treatment within one year of April 5, 1983, received dental treatment from the VA for noncompensable dental conditions, was denied replacement of missing teeth which were lost during service, and that existing VA records reflect the prior denial of the dental claim. See 38 C.F.R. § 17.161(f). He has not sought VA dental treatment prior to the current claim. The Veteran is not in receipt of service connection for service connection for any disability, so there is no evidence demonstrating that the Veteran has a dental condition that impairs or aggravates a service-connected disability (Class III). See 38 C.F.R. § 17.161(g). So he does not have service connected disabilities which are rated as 100 percent disabling by schedular evaluation or due to individual unemployability (Class IV), nor is he a Chapter 31 vocational rehabilitation trainee (Class V). See 38 C.F.R. § 17.161(h), (i). He is also not receiving, or is scheduled to receive, VA care and treatment under 38 U.S.C.A. Chapter 17 (Class VI). See 38 C.F.R. § 17.161(j). Accordingly, service connection for the purposes of entitlement to VA outpatient dental treatment must be denied as a matter of law. In essence, the facts of this case are not in dispute and the law is dispositive as to this issue. Accordingly, the claim will be denied because of the absence of legal merit. See Sabonis, 6 Vet. App. at 430. ORDER The claim of entitlement to service connection for a respiratory condition, including pulmonary sarcoidosis, is denied. The claim of entitlement to VA outpatient dental treatment also is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs