Citation Nr: 1310162 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 11-00 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a respiratory disability to include as due to exposure to asbestos. 2. Entitlement to a compensable disability rating for hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from November 1956 to November 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). The scope of a claim should be construed based on the reasonable expectations of a non-expert, self-represented claimant, and the evidence developed during the claims process. Therefore, if a Veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the Veteran's claim must be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of these considerations, and consistent with the Veteran's assertions, the present service connection claim is not limited to a claim of service connection for COPD alone, but also encompasses a claim of service connection for respiratory disorder other than COPD. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2013. A transcript of that hearing is of record. The claim for increase for hearing loss is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT A respiratory disorder, chronic obstructive pulmonary disease or asthma, is not related to service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, chronic obstructive pulmonary disease or asthma, are not met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter in August 2009. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, and VA and private medical records. The Veteran was afforded a VA examination in June 2012. As the examination report was based on review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The showing of a chronic disease in service requires 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In this case, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because neither chronic obstructive pulmonary disease nor asthma is a chronic disease enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb. 21, 2013). (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases). 38 C.F.R. §§ 3.303(b), 3.309(a). 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 that 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's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Adjudication Manual contains guidelines for the development of asbestos exposure cases. They indicate 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). The Adjudication Manual also acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in the manufacture and servicing of friction products, such as clutch facings and brake linings. Also noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief as little as a month or two or by indirect exposure. The Adjudication Manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service 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. See VAOPGCPREC 4- 2000 (April 13, 2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that a veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). Additionally, the pertinent parts of the Manual guidelines on service connection in asbestos-related cases are not substantive rules, and that there is no presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Finally, a disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service if it resulted from injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. Facts and Analysis The service treatment records are silent as to a complaint or treatment of any respiratory abnormality. In November 1960 on separation examination the respiratory system was normal and a chest X-ray was within normal limits. After service, private medical records in March 2003 show a chronic cough and frequent wheezing. The Veteran drove a school bus and he had a lot of allergies. The Veteran had been treatment for pneumonia. In October 2003, the Veteran had a chronic cough, which was a variant of asthma. It was noted that the Veteran had a two pack per day smoking history for thirty years and that he stopped smoking seventeen years earlier. In January 2004, the Veteran was shown to have a chronic cough which was found to be most likely a combination of the Veteran's gastroesophageal reflux disease, post nasal drainage, and asthma. The Veteran submitted a statement in support of his claim in August 2009. The Veteran explained that in the Navy he welded using sheets of asbestos regularly. He stated that over the year, or maybe within the first year after being discharged, he began to see blood in his spittle. He explained that thereafter his breathing seemed to deteriorate. He stated that he did smoke between his mid-twenties and 1985 but that he did not smoke excessively because of his inability to breathe normally. In June 2012 on VA examination, the Veteran was found to have asthma and chronic obstructive pulmonary disease by X-ray. In July 2012, X-rays did not show asbestosis. The VA examiner expressed the opinion that it was less likely than not that the respiratory conditions were caused by service because asthma and chronic obstructive pulmonary disease were not conditions related to asbestos exposure and the Veteran did not have findings of asbestosis on chest x-ray. In January 2013, the Veteran's friend, L.C., stated that his brother and the Veteran worked together carrying sheets of asbestos to prevent hot metal sparks from damaging floor tile and paint on bulk heads. He stated that the Veteran coughed often and that he remembered a moment prior to the Veteran's discharge in which the Veteran spit up blood. In February 2013, the Veteran testified that he worked with asbestos regularly as it was used as a fire retardant. He described spitting up phlegm while in service and that a friend had suggested that he go to sick bay but that he wanted to go home and would seek treatment after service. Although the Veteran's statements and testimony about exposure to asbestos is credible, the preponderance of the evidence indicates that the Veteran's respiratory disorders, chronic obstructive pulmonary disease or asthma, are not related to service or asbestos exposure. The Veteran's service treatment records are completely silent as to any respiratory disorder in service. And the in-service incurrence of a respiratory disorder has not been demonstrated. Chronic obstructive pulmonary disease and asthma are not conditions under case law that have been found to be capable of lay observation and the disability is not a simple medical condition, capable of lay observation. The determination as to the presence or diagnosis of such a disability therefore is medical in nature and competent medical evidence is needed to substantiate the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), and the Veteran and a friend commented on the Veteran's coughing, the issue of whether the symptoms were due to an in-service respiratory disorder or exposure to asbestos, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). And no factual foundation has been established to show that the Veteran or his friend are otherwise qualified through specialized education, training, or experience to identify the presence or diagnosis of the current respiratory disability. To the extent the Veteran asserts a causal relationship between his current disability and exposure to asbestos, the assertion constitutes the Veteran's opinion, but such an opinion would require specialized education, training, or experience, which has not been factually established. For this reason, the Veteran's lay opinion and the opinion of L.C. are not competent evidence and is not admissible as evidence favorable to claim under 38 C.F.R. § 3.303(d). As the Veteran's statements are not competent evidence, the Board need not address credibility. The competent medical evidence weighs against the Veteran's claim. Neither the VA examiner nor the Veteran's private physician related a respiratory disorder to service or to asbestos exposure. The VA examiner stated that it was less likely than not that chronic obstructive pulmonary disease or asthma was related to asbestos exposure. In sum, there is no medical evidence favorable to claim and the lay evidence is not competent evidence on the diagnosis or cause of chronic obstructive pulmonary disease or asthma. As the competent medical is persuasive evidence against the claim, the preponderance of the evidence is against the claim of service connection and there is no doubt to be resolved and service connection is not warranted. ORDER Service connection for a respiratory disability, chronic obstructive pulmonary disease or asthma, is denied. REMAND In February 2013, the Veteran testified that his hearing loss had increased in severity since he was last examined by VA in September 2009. As the Veteran's asserts that his symptoms are worse, reexamination under 38 C.F.R. § 3.327 is warranted. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA audiology examination to determine the current level of hearing impairment. 2. Thereafter adjudicate the claim. If the benefit sought is denied, provide the Veteran and his representative a supplemental statement of the case to and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim 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. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs