Citation Nr: 1310490 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 07-05 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for atrial fibrillation to include as due to radiation exposure. 2. Entitlement to service connection for a pulmonary disability manifested by shortness of breath to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1964. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Regional Office (RO) in Winston-Salem, North Carolina. In November 2010, the Board denied the Veteran's claim of entitlement to service connection for atrial fibrillation and remanded the claim of entitlement to service connection for a pulmonary disability manifested by shortness of breath for additional development. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In January 2012, the Court granted a Joint Motion for partial remand and vacated the portion of the November 2010 decision that denied entitlement to service connection for atrial fibrillation and remanded that matter for further development. As the claim of entitlement to service connection for a pulmonary disability manifested by shortness of breath was remanded in the November 2010 decision for additional development that issue was not before the Court on appeal. After completing the requested development on the claim for service connection for a pulmonary disability manifested by shortness of breath, the RO/AMC continued to deny the claim and returned the matter to the Board for further consideration. Accordingly, both issues listed on the title page are before the Board on appeal. In July 2012, the Board remanded both issues for further development. The issue of entitlement to service connection for a pulmonary disability manifested by shortness of breath to include as due to asbestos exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Atrial fibrillation was initially demonstrated many years after service discharge and is not related to the Veteran's active service. CONCLUSION OF LAW Atrial fibrillation was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in correspondence dated in April 2005 and August 2005 of the information and evidence needed to substantiate and complete a claim of entitlement to service connection, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. Although the letters provided adequate notice with respect to the evidence necessary to establish a claim for service connection, they did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). A subsequent July 2012 letter provided notice of the type of evidence necessary to establish a disability rating or effective date. The case was then readjudicated in February 2013 and accordingly the duty to notify has been met. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and identified private treatment records. This case was remanded in July 2012 for further development to include affording the Veteran a VA examination. The Board finds that the examination is adequate to make a determination on the issue on appeal as it was thorough, the findings reported were detailed, and the opinions offered were responsive to the questions posed. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (the probative value of a medical opinion comes from when there is a factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). LEGAL CRITERIA Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for disability based on exposure to ionizing radiation can be demonstrated by three different methods. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected when they occur in "radiation-exposed Veterans." 38 U.S.C.A. § 1112(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(d) (2012). Second, "radiogenic diseases" may be service connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311 (2012). Third, service connection may be granted under 38 C.F.R. § 3.303(d) (2012) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation exposed Veteran" is one who while serving on active duty or on active duty for training or inactive duty for training, participated in a radiation-risk activity. "Radiation-risk activity""is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States Forces during the period beginning on August 6, 1945, and ending July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki during the period beginning on August 6, 1945, and ending on July 1, 1946. 38 C.F.R. § 3.309. Diseases subject to presumptive service connection based on participation in a "radiation-risk activity" are the following: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myelomas; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; (xv) cancer of the urinary tract; (xvi) bronchial alveolar carcinoma; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and (xxi) cancer of the ovary. 38 C.F.R. § 3.309(d) (2) (2011). 38 C.F.R. § 3.311 provides instruction in the development of claims based on exposure to ionizing radiation. Pursuant to 38 C.F.R. § 3.311 "radiogenic disease" is defined as a disease that may be induced by ionizing radiation including those enumerated under the regulation, including stomach cancer, and "any other cancer." 38 C.F.R. § 3.311(b)(2) (xxiv). ANALYSIS The Veteran appeals the denial of service connection for atrial fibrillation. The Veteran contends that his heart problems which led to atrial fibrillation and breathing problems during sleep started aboard the USS Shangri-La in the photographic laboratory. According to the Veteran, he developed atrial fibrillation as a result of in-service duties in a photo laboratory working with many chemicals developing film, photographs, and storage of supplies containing radioactive materials. He alleges that he worked in darkrooms that did not have the proper ventilation and spent many nights sleeping in the laboratories exposed to these chemicals and materials stored in the supply room. He further alleges that he served on a ship that had signs posted indicating that there were radioactive materials. Based on a review of the record, the Board finds that service connection for atrial fibrillation is not warranted. To the extent that the Veteran alleges radiation exposure in service, the Board notes that the Veteran does not contend and the evidence does not show that he participated in a radiation-risk activity, as that term is defined by VA regulation. The Veteran also does not have any of the listed diseases in 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Thus, he is not a radiation exposed Veteran, and atrial fibrillation is not subject to presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Furthermore, the list of radiogenic diseases found under 38 C.F.R. § 3.311(b)(2) does not include atrial fibrillation. As the Veteran does not have a radiogenic disease, he must submit or cite competent scientific or medical evidence to show that the disorder is a radiogenic disease. 38 C.F.R. § 3.311(b). The Veteran has not submitted any such evidence, other than his own assertions that he developed atrial fibrillation as a result of in-service exposure to radioactive materials. In this case, there is no competent evidence showing that atrial fibrillation is a radiogenic disease. Accordingly, service connection for atrial fibrillation is not warranted under 38 C.F.R. § 3.311. While service connection for atrial fibrillation based on exposure to ionizing radiation is not warranted, direct service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed conditions and service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, the evidence of record clearly documents diagnoses of atrial fibrillation. Accordingly, the Veteran has a current diagnosis and the remaining questions are whether there is evidence of an in-service occurrence of an injury or disease, and medical evidence of a nexus or relationship between the current disability and the in-service disease or injury. Service treatment records are negative for complaints, treatment and/or diagnoses for the heart. Significantly, the Board notes that at separation clinical findings for the heart were normal. However, as noted above, the Veteran has contended that he was exposed to several hazards, including photography related chemicals, materials in the supply room and even asbestos. The service personnel records reflect he was trained as a photography mate and accordingly the Board will consider his exposure to chemicals as an inservice event. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). What is missing is competent evidence of a nexus between the current atrial fibrillation and the exposure to chemicals or any other event during service. None of the medical evidence of record links the atrial fibrillation to service and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such opinion. In fact, the January 2013 VA examiner found the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event or illness. The VA examiner explained that the service treatment records do not show any evidence of cardiac dysrhythmia specifically a fibrillation during active duty. He noted that dysthymia had an onset of 1999 several years after the Veteran's discharge from service. The VA examiner further explained that atrial fibrillation is usually associated with some underlying heart disease including atrial/ventricular hypertrophy, elevated atrial pressure, infiltration/inflammation of the atria, valvular/hypertensive and ischemic heart disease, heart failure and cardiomyopathy all predisposes a fibrillation. The Veteran denied all except hypertension according to the examiner. The Board finds the opinion of the VA examiner particularly probative. The opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The examiner reviewed the records, which included the Veteran's contentions, and conducted a complete physical examination. The opinion is well reasoned and supported by the historical record, and there is nothing in the record suggesting that it was based on any inaccurate factual premise. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board recognizes that the Veteran has related that he was exposed to radiation and other chemicals in service and that after he was discharged from service he had shortness of breath and a lack of energy. Since that time, he contends he has been in and out of normal heart rhythm. As a lay person, the Veteran is competent to report on that which he has personal knowledge, i.e. shortness of breath and fatigue. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, to the extent to which the Veteran provides an opinion as to the etiology of his atrial fibrillation, the Board finds he is not competent to render such an opinion as the evidence does not demonstrate that he possesses the ability, knowledge, or experience to provide such an opinion in this case. Unlike some disorders, the etiology of atrial fibrillation goes beyond a simple and immediately observable cause-and-effect relationship and would require review and interpretation of clinical tests and knowledge of the workings of the heart and diseases which affect it. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The Board has also considered the medical literature submitted by the Veteran. Standing alone, however, this literature is simply too general to make a causal link between atrial fibrillation and the Veteran's service. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The evidence provided in this case is not specific to the Veteran and the findings were not based on his particular history and circumstances. Nor does it discuss relationships with such certainty that there is at least a plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Wallin v. West, 11 Vet. App. 509, 513 (1998). The Board notes that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, crucially, the literature is general in nature and do not specifically relate to the facts and circumstances surrounding this particular case and therefore it is not probative on this inquiry. Finally, the Board notes that the Joint Motion specifically remanded the claim for the Board to consider whether a VA examination was warranted in light of the Veteran's lay statements of continuity of symptomatology. The Federal Circuit in Walker made it clear that service connection based upon a theory of continuity of symptomatolgoy is only available for a finite set of chronic diseases identified in §3.309(a). As the Veteran seeks to establish service connection for atrial fibrillation, a disease that is not listed as a chronic disease in §3.309(a), the provisions of §3.303 (b) are inapplicable to this case. Walker, 2013 WL 628429, at * 5. Furthermore, in response to the Joint Motion, the Board obtained a VA examination in January 2013. As discussed above, the VA examiner explained that there was no evidence of cardiac dysrhythmia during service and the onset was in 1999 and provided a negative nexus opinion. For the reasons stated above, the preponderance of the evidence is against entitlement to service connection for atrial fibrillation. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for atrial fibrillation, to include as due to radiation exposure, is denied. REMAND The Veteran appeals the denial of service connection for a pulmonary disability manifested by shortness of breath. The Veteran's DD 214 shows that he served abroad the USS Shangri La. The Veteran contends that he has a pulmonary disability due to his asbestos exposure on the naval ship to include exposure to asbestos materials dispersed during ship overhaul in dry dock. According to the Veteran, he had shortness of breath and a lack of energy following his active service. A February 2008 CT scan found a linear left lower lobe pulmonary nodule. It was determined, however, that such was too small to characterize. It was indicated that a follow up CT scan would be conducted in a year. In light of the lay assertions of record, the February 2008 findings and the arguments set forth by the Veteran's representative, the Board finds that a VA examination is warranted to properly adjudicate the claim for service connection. In this regard, the record contains lay assertions of in service asbestos exposure and pulmonary problems resulting from such exposure. The Veteran has not been afforded a VA examination to determine if he has a pulmonary disability and, if so, whether such is related to service. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a pulmonary examination at an appropriate VA medical facility. His claims folder and all pertinent records from Virtual VA must be made available for the physician's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. Based on a review of the claims file and the clinical findings of the examination, the examiner should specifically diagnose any pulmonary disability found and opine whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed disorder had its onset in service or is otherwise etiologically related to his period of service. The physician is to address, if the Veteran was exposed to asbestos, whether there a relationship between any diagnosed pulmonary disability and the claimed asbestos exposure. A complete rationale must be given for all opinions and conclusions expressed. 2. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. The RO/AMC should take any additional development action it deems proper with respect to the claim. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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). ____________________________________________ HOLLY SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs