Citation Nr: 1313202 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 06-13 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure. 3. Entitlement to service connection for a gastrointestinal (GI) disability, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1958 to September 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2009 and June 2011, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. When the case was previously before the Board, the issues on appeal included entitlement to service connection for a chronic respiratory disability. In a February 2013 rating decision, service connection was granted for restrictive and obstructive pulmonary disease with staged ratings assigned effective May 24, 2005. This constitutes a full award of the benefits sought on appeal and the claim for service connection for a chronic respiratory disability is no longer before the Board. In its April 2009 and June 2011 remands, the Board referred the issue of entitlement to service connection for a cardiac disability to the Agency of Original Jurisdiction (AOJ) for appropriate action. The record does not indicate that this issue has been developed or adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it and it is once again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's chronic skin disability, diagnosed as onychomycosis, is etiologically related to active duty service. 2. The Veteran's obstructive sleep apnea was first demonstrated many years after service and is not etiologically related to exposure to asbestos or other disease or injury during active duty service. 3. The Veteran's GI disability, diagnosed as gastroesophageal reflux disease (GERD), a hiatal hernia, and chronic abdominal pain, was first demonstrated many years after service and is not etiologically related to exposure to asbestos or other disease or injury during active duty service. CONCLUSIONS OF LAW 1. The Veteran's onychomycosis was incurred in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Obstructive sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 3. A chronic GI disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Skin Disability The Veteran contends that service connection is warranted for a fungal infection of the finger and toe nails as it was incurred during active duty service. The record establishes the presence of a current disability; the Veteran was diagnosed with onychomycosis of the finger and toe nails upon VA examination in September 2011. A December 2006 dermatological consultation at the Detroit VA Medical Center (VAMC) also noted the presence of onychodystrophy of the finger and toe nails. Service treatment records document complaints related to the skin of the Veteran's feet. The Veteran's skin and extremities were normal upon examination for separation in July 1959, but the examining physician noted a history of fungus of the feet, currently asymptomatic. The Veteran also reported foot trouble and foot fungus on the accompanying report of medical history. The evidence therefore demonstrates the first two elements of service connection-a current disability and in-service injury. With respect to the third element of service connection, a nexus between the current disability and in-service injury, the record contains medical and lay evidence in support of the claim. The Veteran has credibly reported a long history of dystrophic nails of the fingers and toes dating from service, both to his treating VA dermatologist and upon VA examination in September 2011. Onychomycosis is not a chronic disease listed in 38 C.F.R. § 3.309(a), but the Veteran is competent to report continuous symptoms of a fungal infection since service and these credible statements support the claim for service connection under 38 C.F.R. §§ 3.303(a) and (d). Although the record also contains a negative medical opinion from the September 2011 VA examiner weighing against the claim, the Board notes that this opinion was predicated on the examiner's finding that service records were negative for evidence of a skin disability. As discussed above, the Veteran's July 1959 separation examination clearly documents the presence of a fungal infection of the feet and the probative value of the September 2011 VA examiner's opinion is severely lessened. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board finds that the service and post-service medical records, as well as the Veteran's lay statements, establish that the Veteran's onychomycosis had its onset during active duty service. All three elements of service connection are present, and the claim is granted. Sleep Apnea and GI Disability The Veteran contends that sleep apnea and a chronic GI disability were incurred due to active duty service and asbestos exposure through his duties as a mechanic. The record establishes the presence of current disabilities. The Veteran was diagnosed with obstructive sleep apnea following a November 2006 sleep study at the Detroit VAMC. A September 2005 esophagogastroduodenoscopy (EGD) at the VAMC also confirmed the presence of diffuse gastritis, a small hiatal hernia, and esophageal erythema. Additionally, the Veteran was diagnosed with sleep apnea, GERD, a hiatal hernia, and chronic abdominal pain of unknown etiology upon VA examination in August 2011. The Board therefore finds that the record establishes the presence of obstructive sleep apnea and chronic GI disabilities. The Veteran contends that his disability is the result of asbestos exposure during active service with the Army. There is no specific statutory guidance concerning asbestos claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has also held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Manual at Subsection (h). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. The Veteran's service records confirm that he had some exposure to asbestos during service. His DD-214 does not contain a military occupational specialty (MOS), but the Veteran has reported that he served as a mechanic with exposure to asbestos through various vehicle parts such as brakes. The Veteran also reported during the August 2011 VA examination that his post-service employment included work as a crane operator. VA attempted to verify the Veteran's asbestos exposure with the National Personnel Records Center (NPRC) in March 2011, but the NPRC responded that the Veteran's personnel records are not available for procurement due to destruction in a fire. Despite the lack of personnel records, service treatment records include a notation verifying the Veteran's duties as a service mechanic. The VA Manual notes that the servicing of friction products, such as clutch facings and brake linings, involves exposure to asbestos. Manual at subsection (f). The Board will therefore resolve all doubt in favor of the Veteran and find that he was exposed to asbestos during active duty service. The presence of an in-service injury is demonstrated. The Board must now determine whether the Veteran's claimed disabilities are etiologically related to his in-service exposure to asbestos. Service treatment records do not indicate such a relationship; they are negative for evidence of sleep apnea or a chronic GI disability. The Veteran has reported that he was treated for appendicitis during service and relates his current GI conditions to this treatment. While the Veteran was admitted for inpatient care of suspected appendicitis in January 1959, no active disease was found. The Veteran was seen at an Army clinic in January 1959 with complaints of worsening abdominal pain. An upper respiratory infection (URI) was initially diagnosed along with possible gastroenteritis and suspected appendicitis. The Veteran was admitted for observation, but showed improvement and was discharged with final diagnoses of a common cold and no disease of the appendix. His systems were normal at the July 1959 examination for separation and he denied experiencing any trouble sleeping or stomach or intestinal trouble on the accompanying report of medical history. There is also no objective evidence of the sleep apnea until 1984, almost 15 years after service, when the Veteran reported undergoing treatment for sleep apnea at a private facility in Detroit. The earliest evidence of a chronic GI disability dates from June 2005, 45 years after service, when the Veteran was admitted to the Detroit VAMC for treatment of chronic abdominal pain and an abdominal aortic aneurysm (now resolved). There is also no competent medical evidence in support of the claims. The only medical opinions of record, those of the August 2011 VA examiner, weigh against the claims. After reviewing the claims file and physically examining the Veteran, the VA examiner concluded that neither sleep apnea nor any chronic GI disabilities were etiologically related to active duty service. The examiner also found that the Veteran's chronic abdominal pain of unknown etiology was more likely chronic constipation. The examiner's opinion was based on the lack of findings during active duty service, to include the failure to diagnose a chronic condition at the time of the Veteran's January 1959 admission for suspected appendicitis. The examiner also noted the absence of complaints or treatment for the claimed disabilities following the Veteran's discharge from service. The Board finds that VA medical opinions are well-supported and are entitled to substantial probative value. See Nieves, supra. The Board has considered the Veteran's statements connecting his sleep apnea and GI disabilities to active duty service and asbestos exposure. The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377 (lay persons not competent to diagnosis cancer). The Veteran is competent to testify as to observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. Furthermore, the Board notes that the Veteran has not reported a history of continuing symptoms since service. While receiving treatment for abdominal pain at the VAMC in July 2005, the Veteran stated that he had experienced other episodes of severe abdominal pain in the past, including an incident when he was 18 and presumably during active service. However, these episodes were characterized by the treating physician as intermittent and it is clear that the Veteran has not reported a history of continuous abdominal pain since service. The Board discusses the Veteran's reported symptoms in the context of using lay evidence to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d), but not 38 C.F.R. § 3.303(b). See Davidson, 581 F.3d 1313; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In sum, the weight of the competent evidence of record is against a nexus between the Veteran's obstructive sleep apnea, GERD, hiatal hernia, chronic abdominal pain, and his active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claims and they are denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the claim for entitlement to service connection for a chronic skin disability, VA has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. Regarding the other claims on appeal, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a June 2005 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in a March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were readjudicated in the February 2013 SSOC. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran was provided a proper VA examination and medical opinion in August 2011 in response to his claims. VA has also obtained all available records of treatment reported by the Veteran, including service treatment records and records of VA treatment. With respect to VA treatment, the Veteran reported receiving care at the Detroit VAMC from January 2002 to October 2003. In December 2010, the RO issued a memorandum detailing attempts to obtain records from the Detroit VAMC during this period, but concluded that such records were not available. A May 2010 response from the VA facility also specified that they had no records pertaining to the Veteran during the period prior to October 2003. Regarding private treatment, the Veteran has reported undergoing some private treatment for the claimed disabilities; he submitted medical release forms in May 2009 for two private facilities to allow VA to obtain records of treatment on his behalf. One of the facilities, Pulmonary and Critical Care, responded to VA's request for information in August 2010 by stating that they had no records pertaining to the Veteran. VA made multiple attempts to obtain records from the other doctor identified by the Veteran, Dr. Clifford Weldon, but no response was received. In an August 2010 statement, the Veteran instructed VA to proceed with adjudicating his claims without additional attempts to obtain the identified records as they did not contain information relevant to the claims for sleep apnea or a chronic GI disability. The Board therefore finds that VA has obtained all available records of VA and private treatment. The Board also finds that VA has complied with the April 2009 and June 2011 remand orders of the Board. In response to the Board's remands, efforts were made to obtain the private and VA records identified by the Veteran. As discussed above, these efforts were not successful and the Board has determined that all available treatment records have been procured. The Veteran's claims were also developed in accordance with the provisions of the VA Manual pertaining to claims based on asbestos exposure. The record documents VA's efforts to verify the Veteran's exposure during service, including a February 2013 RO memorandum concluding that the Veteran was exposed to asbestos during active duty service. The Veteran was also provided a VA examination in August 2011 with a medical opinion addressing the nature and etiology of the claims on appeal. The case was then readjudicated in the February 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a skin disability, currently diagnosed as onychomycosis, is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a GI disability, currently diagnosed as GERD, a hiatal hernia, and chronic abdominal pain, to include as due to asbestos exposure is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs