Citation Nr: 1317708 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-21 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a disability manifested by hoarseness as secondary to service-connected asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to February 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is of record. The Board remanded this matter in May 2012 and January 2013 for further development. Thereafter, the RO continued the denial of the claim as reflected in the March 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's hoarseness was not caused by or aggravated by his service-connected asbestosis. CONCLUSION OF LAW The criteria for service connection for a disability manifested by hoarseness as secondary to service-connected asbestosis have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the duty to notify was satisfied through letters dated in August and November 2007, which preceded the rating action on appeal. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, VA examinations dated in September 2007 and May 2012, a VA opinion dated in February 2013, lay statements from the Veteran and a transcript of the March 2012 Board hearing. The May 2012 VA examination reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiner discussed the relevant evidence of record and documented the results of the evaluation. Following the above, the examiner provided an explanation for her determination that the Veteran's disability manifested by hoarseness was not caused by his service-connected asbestosis. The Board observes that the VA physician in February 2013 reviewed the claims file and documented the pertinent evidence of record. Thereafter, she provided a clear explanation for her opinion that the Veteran's disability manifested by hoarseness was not aggravated by his service-connected asbestosis. Based on the foregoing, the Board finds the May 2012 VA examination and February 2013 VA opinion are adequate for adjudication purposes. This issue was previously remanded in May 2012 in order to provide the Veteran with a VA examination and opinion and in January 2013 to provide a supplemental opinion. The record contains a May 2012 VA examination report that addresses the question of whether the Veteran's disability manifested by hoarseness was caused by the Veteran's service-connected asbestosis that was raised by the Board in the May 2012 remand and it was supported by an explanation. Furthermore, the VA opinion in February 2013 provided an opinion on the issue of whether the Veteran's asbestosis aggravated his disability manifested by hoarseness that was raised by the Board in the May 2012 and January 2013 Board remands and it was supported by a clear rationale. Accordingly, the Board finds that there has been substantial compliance with the May 2012 and January 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran claims that he currently has hoarseness as the result of his service-connected asbestosis. The Veteran clarified in testimony at the March 2012 Board hearing that he was only seeking service connection for hoarseness on a secondary basis. Hearing Transcript at 12. As the Veteran does not contend and the evidence does not otherwise indicate that his claimed disability manifest by hoarseness is related to active military service, the theory of entitlement to service connection for a disability manifested by hoarseness on a direct basis will not be considered. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). In assessing whether the Veteran is entitled to service connection for a disability manifested by hoarseness, the evidence of record must show that the Veteran has a current diagnosis of the claimed disability. In this regard, the medical evidence of record reveals that the Veteran has a current diagnosis of chronic laryngitis based on the Veteran's persistent symptom of hoarseness. Thus, the Veteran has the claimed disability. With respect to whether the Veteran's service-connected asbestosis caused or aggravated the Veteran's current chronic laryngitis, the Board observes that the record contains two negative medical opinions. In this regard, the VA examiner in May 2012 provided the opinion that the Veteran's claimed condition is less likely than not proximately due to or a result of the Veteran's service-connected asbestosis. She explained that the Veteran has shown symptoms likely secondary to chronic mild laryngopharyngeal reflux based on an ENT scope in 2005. Reflux of a gastrointestinal source appears to be causing his hoarseness. This can be a consistent finding with reflux. Past tobacco use also may contribute to this effect of hoarseness as well. The Board obtained another opinion as the examiner did not specifically address whether the Veteran's hoarseness is aggravated by his service-connected asbestosis. A VA physician dated in February 2013 provided the opinion that the Veteran's hoarseness is not at least as likely as not aggravated beyond its natural progression by his service-connected asbestosis. The physician explained that there has been no progression of hoarseness. Asbestosis is not known to cause the condition of either allergic rhinitis or laryngopharyngeal reflux. Per up to date medical reference data base, laryngopharyngeal reflux results from retrograde movement of gastric contents beyond the esophageal sphincter, leading to morphologic and functional changes in the larynx and pharynx. This condition was noted on the laryngoscopy in 2005. In addition, the physical exam findings in the 2007 and 2012 examination as well as the historical background are consistent with a diagnosis of allergic rhinitis which is also a risk factor for development of hoarseness. The physician noted that there is no known association of asbestosis with the involvement of the larynx and vocal cords to cause or aggravate hoarseness or to cause or aggravate laryngopharyngeal reflux or allergic rhinitis per review of the medical literature. The Board finds that the VA opinions in May 2012 and February 2013 are persuasive and probative as the physicians provided a thorough explanation based on the evidence of record, medical literature and medical expertise. The Board recognizes that the Veteran contends that his disability manifested by hoarseness was caused by or aggravated by his service-connected asbestosis. Lay persons can provide an account of observable symptoms, such as hoarseness. See Clyburn v. West, 12 Vet. App. 296, 301 (1999); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the Veteran's lay assertions that his hoarseness is related to his service-connected asbestos have no probative value because this type of opinion requires special medical knowledge. The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current chronic laryngitis and his service-connected asbestosis. In this case, the record does not contain any probative medical evidence or opinion that would indicate the Veteran's current chronic laryngitis is related to his service-connected asbestosis. As discussed above, the persuasive and probative medical evidence of record asserts that the Veteran's chronic laryngitis is not caused by or aggravated by his service-connected asbestosis. Thus, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a disability manifested by hoarseness. Accordingly, the Board concludes that service connection for a disability manifested by hoarseness is not warranted. ORDER Entitlement to service connection for a disability manifested by hoarseness as secondary to service-connected asbestosis is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs