Citation Nr: 1235866 Decision Date: 10/16/12 Archive Date: 10/23/12 DOCKET NO. 10-36 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for the residuals of cold injuries to the feet, hands, and ears. 2. Entitlement to service connection for a stomach condition. 3. Entitlement to service connection for a respiratory condition, to include exposure to asbestos. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to February 1953. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered in October 2008 and January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board is aware that the Veteran filed a notice of disagreement in February 2009, and that he indicated he disagreed with the decision made in the October 2008 rating decision. However, the Board further observes that the Veteran submitted additional evidence within the year of the January 2008 rating decision. Therefore, the Board finds that the January 2008 rating decision did not become final. As such, there is no need for new and material evidence to reopen the previously denied claim. See 38 C.F.R. § 3.156(b) (2011). The Veteran requested a hearing before the Board in his August 2010 substantive appeal. However, he subsequently withdrew that request in September 2010. In November 2011, the Board remanded this appeal for further development, which has been completed, and the case has been returned to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Residuals of cold injuries to the feet, hands, and ears did not manifest until many years after service discharge, and the preponderance of the evidence is against a finding that they are related to service. 2. A stomach condition did not manifest until many years after service discharge, and the preponderance of the evidence is against a finding that it is related to service. 3. The Veteran does not have an asbestos-related respiratory disorder. 4. A respiratory disorder did not manifest until many years after service discharge, and the preponderance of the evidence is against a finding that it is related to the service. CONCLUSIONS OF LAW 1. Residuals of cold injuries to the feet, hands, and ears were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). 2. A stomach condition was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). 3. A respiratory disorder was not incurred in or aggravated by active military service, to include exposure to asbestos. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in November 2011. The Board specifically instructed the RO/Appeals Management Center (AMC) to provide the Veteran with notice of the evidence required to substantiate his claim for a respiratory condition as the result of exposure to asbestos; request that the Veteran identify health care providers who treated him for his claimed disorders; obtain any additional VA treatment records from 1975 to the present; develop the case appropriately as one involving exposure to asbestos; schedule the Veteran for VA examinations to determine the nature, extent and etiology of his claimed cold injury residuals, stomach condition, and respiratory condition; and readjudicate the claims. As a result of the remand, the AMC sent the Veteran a letter in April 2012, which outlined the evidence required to substantiate his claim for a respiratory condition as the result of exposure to asbestos. Additionally, the April 2012 letter as well as a letter in December 2011 requested that the Veteran provide information about health care providers who treated him for his claimed disorders; the letters also enclosed VA Forms 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs for the Veteran to fill out and submit. Additionally, all available outstanding VA treatment records were associated with the claims folder and the Veteran's electronic file. Although the RO/AMC attempted to obtain the Veteran's VA records from 1975 to 2005 from various medical centers, they were notified that no such records were available. Furthermore, the Veteran was scheduled for examinations in April 2012 for which he failed to report. Thereafter, his claims were readjudicated in an August 2012 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in August 2008, December 2011, and April 2012, VA satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011). Specifically, VA notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. He was informed of the type of evidence that could be submitted to support his claims. The letters also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in an August 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2011). All identified and available treatment records have been secured. All available evidence pertaining to the Veteran's claims has been obtained. The record reflects that the AMC/RO requested the Veteran's service treatment and personnel records from the National Personnel Records Center (NPRC). In August 2007, November 2007, and December 2011, NPRC advised VA that the Veteran's service treatment and personnel records had been destroyed in a fire in 1973. No Surgeon General's records could be located, and attempts to reconstruct the Veteran's records failed. In a case in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). Additionally, VA attempted to obtain the Veteran's outstanding VA treatment records, specifically those dated from 1975 to the present, from the medical centers in Brecksville, Ohio, Cleveland, Ohio, and Huntington, WV. However, in December 2011, those facilities indicated that no records were available for the specified time period. The Board observes that the April 2012 letter and August 2012 supplemental statements of the case notified the Veteran of the unavailability of his service and VA medical records, and he was afforded an opportunity to supplement the record with additional evidence. To date, he has not submitted additional evidence. Therefore, the Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining those records. Having determined that the September 2008 VA examination was inadequate, the Board specifically remanded the claims in November 2011 to provide the Veteran with a new examination. Although he was scheduled for an examination in April 2012, the Veteran failed to report to that examination. The Board is aware that there is no notification letter reflecting the scheduled examination in the claims folder or in the Veteran's electronic file. However, the Board notes that review of the claims folder clearly demonstrates that the Veteran was given ample notice of his scheduled examination. In the April 2012 notification letter, the AMC stated that the nearest VA facility would contact the Veteran to schedule him for an examination. Additionally, the August 2012 supplemental statement of the case discussed the Veteran's failure to report for his scheduled examination as the basis for the denial of his claims. These documents were sent to the correct address on file and were not returned as undeliverable. In this regard, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has ruled that there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). There is no evidence whatsoever to rebut the presumption of regularity that the Veteran received notification of these letters/documents. Furthermore, there is a note from an AMC staff member that he called the Veteran to determine the reason for his failure to report to his examination but only got an answering machine. Notably, neither the Veteran nor his representative has argued that the Veteran did not receive notification of the scheduled hearing despite having multiple opportunities to raise such an assertion. Significantly, in its September 2012 informal hearing presentation, the Veteran's representative stated that it did not know why the Veteran failed to report to the examination. Therefore, because the Veteran was given ample notification that he would be scheduled for an examination, he failed to report for that examination, and he was given multiple opportunities to provide good cause for his failure to report to his examination, the Board finds that there is no prejudice to proceed with the claims. See 38 C.F.R. § 3.655(a) (2011). Without the Veteran's cooperation, VA cannot obtain the evidence necessary to ascertain the etiology of his current disabilities. While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (noting that a veteran cannot passively wait for help from VA). Because the Veteran has not cooperated in the development of his case, the Board finds that all efforts to obtain the necessary evidence have been exhausted and further attempts would be futile. 38 C.F.R. § 3.159(c) (2), (3) (2011). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2011). The Veteran has declined the opportunity to present testimony before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Residuals of Cold Injuries to the Feet, Hands, and Ears, and a Stomach Condition In the case of a veteran who was involved in combat during service, if an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) . Section 1154(b) allows combat veterans, in certain circumstances, to use lay evidence to establish the incurrence of a disease or injury in service. "However, the provisions of section 1154(b) do not provide a substitute for medical-nexus evidence. . ." Clyburn v. West, 12 Vet. App. 296, 303 (1999). Section 1154(b) serves only to relax the evidentiary burden to establish incurrence of a disease or injury in service. Id. The Board observes that the evidence is indisputable that the Veteran is a combat Veteran. His discharge document reflects that he was awarded the Combat Infantryman Bade, and that he was assigned to Company A, 5th Cavalry Regiment. In August 2008, he submitted a sworn statement describing his experiences while assigned as a machine gunner in a bunker position on Heartbreak Ridge with Company A, 5th Cavalry Regiment, 2nd Infantry Division. He reported he was assigned with three other squad members during the time period in September 1951. VA has recognized his service in combat, and he has been awarded service-connection for posttraumatic stress disorder based on combat-related stressors. In addition, the Veteran attested that he experienced frostbite to his feet, hands, and ears; and that he also had stomach cramps. He swore that he has experienced symptoms of decreased circulation in his hands and feet, and stomach problems from that time to the present. The Veteran's testimony as to his experiences in combat and his symptoms from then to the present is sufficient to establish in-service incurrence of exposure to cold temperatures and experiencing stomach problems and suggests ongoing problems since that service. As noted above, the Veteran's service records are missing and have been destroyed by the 1973 fire, and attempts to reconstruct the Veteran's records failed. However, his statements are consistent, and he is a credible witness. His injuries are also consistent with the circumstances of his service, and the Board finds no reason not to believe that the events occurred as he has testified. Given the Veteran's credibility as a witness, and the lack of complete records, the Board accepts the Veteran's statements concerning his in-service cold exposure and stomach problems, as true. No further verification is needed to establish the in-service occurrence of cold exposure and stomach problems. See supra 38 U.S.C.A. § 1154(b); see also Pentecost v. Principi, 16 Vet. App. 124, 128-9. (2002). The relevant evidence also includes VA and private treatment records reflecting diagnoses of neuropathy and gastroesophageal reflux disease. Therefore, Hickson elements (1), current disability, and (2) an in-service incurrence of a disease or injury are met. As to the final element, a nexus between the claimed in-service disease or injury and the present disability, the only evidence of record is the aforementioned VA examination report which the Board deemed inadequate. As previously noted in the Board's remand, the September 2008 examination report showed periarticular osteopenia in the bilateral feet by X-rays, which the radiologist opined could be seen in association with previous frostbite injury and some arthritides. However, the VA examiner opined that the peripheral neuropathy found in the Veteran's feet was diabetic peripheral neuropathy and not the residuals of cold injury to the feet. There were no findings of peripheral neuropathy in the hands. The examiner's rationale was that review of the Veteran's claims file did not reveal any records indicating any specific treatment for any cold injury, and that there were no service treatment records at all. The examiner stated that a search of weather during the time period from September to October 1951 showed the mean temperature for the days at 60 degrees Fahrenheit, which was too warm for snow or cold injury. In addition, the examiner opined that had the Veteran been exposed to cold severe enough to cause injury, it was not likely that his feet would have been injured but not his hands. The VA examiner was identified as a staff physician. Although the Board has determined that this examination report was inadequate for several reasons, the Veteran failed to report to a scheduled VA examination and there is no other opinion which addresses the etiology of the Veteran's disabilities. Furthermore, the Veteran has submitted no competent nexus evidence. He has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (noting it is a claimant's responsibility to support a claim for VA benefits). As to the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology, the Board notes the Veteran's contentions that he has had decreased circulation in his hands and feet, and stomach problems ever since service. Supporting medical evidence is required to show chronicity and continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (finding that there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. The earliest objective evidence of the claimed disabilities is not until sometime between 2005-2007. However, the Veteran has indicated that he sought treatment at VA medical centers beginning in 1975. Although those treatment records were not found, to afford the Veteran all benefit of the doubt the Board will concede for purposes of this decision only that he began treatment in 1975. This is still two decades following service without treatment or complaint of the claimed disabilities, and weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Accordingly, service connection may not be established via continuity of symptomatology under 38 C.F.R. § 3.303(b) for his claimed residuals of cold weather injury and stomach problems. Respiratory Condition The Veteran contends argued he was exposed to asbestos on board the ship used to transport U.S. Army soldiers to Korea. He attested he was on board for two months, and that his respiratory condition was the result of this exposure. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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). As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. The Veteran's DD 214 shows that he was in the Army and had approximately one and half years of foreign service. The Veteran currently has a diagnosis of black lung disease and COPD was suspected. VA treatment records also shows that the Veteran had a 45 plus year history of intermittent smoking up to one pack of cigarettes a day and that he used to work as a coal miner. After a careful review of the evidence of record discussed above, the Board finds that service connection for a respiratory disability, including as due to asbestos exposure has not been established. Initially, the Board notes that while the Veteran has a pulmonary disorder, he does not have an asbestos-related disorder. See supra M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. As noted above, he has been noted to have black lung disease and COPD. However, there is no competent evidence in the record that the Veteran's pulmonary disorders are related to asbestos or an asbestos related disability. Accordingly, service connection for a respiratory disorder based on exposure to asbestos is unwarranted. The Board will also consider the Veteran's claim as a non-asbestos related respiratory disorder. The Veteran has a current pulmonary disorder, as discussed above. However, there are no service treatment records of record, and even giving the Veteran the benefit of the doubt that he had such a disability in service, there is no evidence of complaints or findings related to such a disability until 2005 (even giving the Veteran the benefit of the doubt and assuming for purposes of this decision only that he had symptoms in 1975, this is still 22 years after service discharge). Supporting medical evidence is required to show chronicity and continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (finding that there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. The earliest evidence of the claimed disability based on the Veteran's statements as to treatment is over two decades following service, which weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Accordingly, service connection may not be established via continuity of symptomatology under 38 C.F.R. § 3.303(b). Other Considerations To the extent that the Veteran himself, or his representative, contends that a medical relationship exists between his current disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, statements as to a possible relationship between the Veteran's current residuals of cold injuries, stomach disability, and/or respiratory disorder and his military service are etiological questions unlike statements as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disabilities. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he experienced during service, he is not competent to ascertain the etiology of his current disabilities, and the causative factor for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In these circumstances, the Board gives more credence and weight to the independent medical evidence of record, which is negative for complaints, diagnoses, or treatment for the claimed disabilities for over two decades following separation from active duty, than the Veteran's claims. Therefore, entitlement to service connection for residuals of cold injuries, stomach disability, and/or respiratory disorder must be denied. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the residuals of cold injuries to the feet, hands, and ears is denied. Service connection for a stomach condition is denied. Service connection for a respiratory condition, to include exposure to asbestos, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs