Citation Nr: 1318191 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-25 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a lung disability, to include as due to exposure to herbicides and/or asbestos. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to April 1973, to include service in the Republic of Vietnam from January 6, 1969, to January 5, 1970, and from March 28, 2972, to November 13, 1972. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A hearing was held in May 2013 via videoconferencing equipment before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence of record reflects diagnoses of various lung disabilities during the appeal period, to include bilateral atelectasis compatible with pulmonary embolus, pulmonary nodules, and bilateral generalized interstitial fibrosis that are linked to service, as well as frequent and persistent symptomatology congruent with these diagnoses dating back to the Veteran's active duty. 2. The evidence of record reflects diagnoses of various back disabilities during the appeal period, to include lumbago, lumbar spondylosis, multi-level spurring of the lumbar vertebral bodies, multiple bulging discs, osteoporosis, and degenerative changes of the lumbar spine that are linked to service, as well as frequent and persistent symptomatology congruent with these diagnoses dating back to the Veteran's active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for lung disabilities, to include bilateral atelectasis compatible with pulmonary embolus, pulmonary nodules, and bilateral generalized interstitial fibrosis, are met. 38 U.S.C.A. §§ 101(21), (24), 106, 1101, 1110, 1112, 1113, 1116, 1154(a) 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a) (2012). 2. The criteria for service connection for back disabilities, to include lumbago, lumbar spondylosis, multi-level spurring of the lumbar vertebral bodies, multiple bulging discs, osteoporosis, and degenerative changes of the lumbar spine, are met. 38 U.S.C.A. §§ 101(21), (24), 106, 1101, 1110, 1112, 1113, 1116, 1154(a) 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the Veteran's claims to establish service connection, which constitutes complete grants of the Veteran's claims. Therefore, no discussion of VA's duty to notify or assist is necessary. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection - herbicides and asbestos Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means 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). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). VA regulations require that a veteran have set foot within the land borders of Vietnam for presumptive service connection and that a veteran who never went ashore from the ship on which he served in the Vietnam coastal waters was not entitled to presumptive service connection. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Haas, the United States Court of Appeals for the Federal Circuit held that VA's amendment to its Adjudication Procedure Manual excluding veterans who had not set foot in Vietnam was not invalid nor impermissibly retroactively applied. There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Rather, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular has subsequently been subsumed verbatim as § 7.21 of VA manual ADMIN21. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The manual notes that lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. Neither manual VA Adjudication Procedure Manual (M21-1MR) nor the circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In the interest of economy and to avoid redundancy, the Board will discuss the Veteran's claims together. The Veteran asserts that he has experienced frequent and persistent symptomatology attributable to low back and lung disabilities since service. In particular, the Veteran testified at the May 2013 hearing that his initially injured his low back while lifting a mortar out of a truck during basic training, and that he has experienced shortness of breath since his in-service exposure to herbicides in the Republic of Vietnam as well as exposure to asbestos while working on vehicle brakes during service. The Veteran's post-service medical records from Martin Army Hospital reflect multiple complaints of and treatment for symptomatology congruent with lung and low back disabilities between March 1976 and January 2008 as well as varying diagnoses of lung and back disabilities. Specifically, with respect to the Veteran's lungs, X-ray reports dated in March 1976 and April 1981 show bilateral atelectasis compatible with pulmonary embolus, pulmonary nodules, and bilateral generalized interstitial fibrosis, respectively. Since these diagnoses were initially rendered, they have been continued throughout the Veteran's medical history, to include during the appeal period. With regard to the Veteran's back, extensive testing, to include X-ray, magnetic resonance imaging (MRI), computer tomography (CT) and DEXA bone densitometry, reflect diagnoses of lumbago, lumbar spondylosis, multi-level spurring of the lumbar vertebral bodies, multiple bulging discs, osteoporosis, and degenerative changes of the lumbar spine. Accordingly, element (1) has been demonstrated with respect to both claims. The Veteran's service treatment records show complaints of and treatment for symptomatology congruent with lung and low back disabilities. Also, the competent and credible written submissions and testimony of the Veteran and his wife, amply demonstrates in-service lung and low back symptomatology. Washington and Rucker, both supra. Moreover, the Veteran's partial service personnel records reflect service in the Republic of Vietnam as well as a Military Occupational Specialty (MOS) of automotive maintenance, which is an assignment congruent with possible exposure to asbestos.. As such, in-service exposure to herbicides and asbestos is presumed and conceded, respectively. 38 C.F.R. § 3.307(d)(6)(iii); VA Adjudication Procedure Manual, (M21-1MR), IV.ii.2.C.9.f. Accordingly, element (2) has been met with respect to both issues. The Board concludes that service connection cannot be established for a chronic disease under 38 C.F.R. § 3.303(b) and 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Since there is no evidence of a diagnosis of any of the chronic disabilities listed in 38 C.F.R. § 3.309(a) applicable to the Veteran's claims during the presumptive period, no further discussion concerning continuity of symptomatology or chronicity is necessary. Concerning element (3), evidence of a nexus between the Veteran's currently-diagnosed low back and lung disabilities and his in-service symptomatology, there are two nexus opinions of record, both of which are favorable to the Veteran's claims. In a March 2008 statement, Dr. Stavitski recounted the symptomatology associated with the Veteran's diagnosed low back disabilities, and opined that such is "likely the result of his many years of service as an enlisted active duty soldier." Also, in a July 2011 statement, Dr. Rubio opined that the Veteran's diagnosed pulmonary nodules are "very likely to be partially related" to his in-service exposure to asbestos and herbicides, and that his chronic low back pain is "at least as likely as not to have been contributed to by the wear and tear of twenty years of active duty." While these nexus opinions do not cite specific medical evidence or include complimentary rationales, there is no medical evidence to the contrary. Further, as the Veteran's claims are being granted, the Board concludes that a remand to cure these deficiencies by obtaining nexus opinions would constitute unreasonable delay and expenditure of scarce VA resources. 38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478 - 9 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's statutory duty to assist is not a license for a "fishing expedition"). Similarly, the Court has cautioned against seeking an additional medical opinion where favorable evidence in of record. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an Veteran's claim. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Further the Board finds that the March 2008 and July 2011 opinions are congruent with the Veteran's reports of experiencing frequent and persistent lung and low back symptomatology since service. A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."(emphasis added)); see 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Here, there is ample evidence of frequent and persistent symptoms of the Veteran's variously-diagnosed lung and low back disabilities dating from his active duty until the present, as recounted above. Throughout the appeal period, to include at testimony at the May 2013 hearing, the Veteran has asserted that he has experienced frequent and persistent symptomatology attributable to low back and lung disabilities since service. As noted above, the Veteran is certainly competent to report symptoms which he has experienced first-hand. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). Moreover, the Veteran's reports of frequent and persistent symptoms since service are bolstered by the service treatment records, reflecting in-service lung and low back symptomatology, as well as the post-service records from Martin Army Hospital, reflecting ongoing treatment for congruent symptoms for more than 30 years, from 1976 to 2008. Because the reported lung and low back symptoms and medical history conveyed by the Veteran are congruent with the available in-service and post-service medical evidence, the Board finds his statements to be credible and highly probative in establishing frequent and persistent lung and low back symptomatology since service. Washington, supra. Therefore, in view of the March 2008 and July 2011 nexus opinions, the lay and medical evidence of frequent and persistent low back and lung symptomatology since service, and the lack of any evidence to the contrary, the Board finds that there is adequate evidence of record that the Veteran's frequent and persistent low back and lung symptoms during and since his active duty are related to his currently diagnosed lung and lumbar spine disabilities, to include bilateral atelectasis compatible with pulmonary embolus, pulmonary nodules, bilateral generalized interstitial fibrosis, lumbago, lumbar spondylosis, multi-level spurring of the lumbar vertebral bodies, multiple bulging discs, osteoporosis, and degenerative changes of the lumbar spine. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Accordingly, the Board finds that service connection for these disabilities must be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for bilateral atelectasis compatible with pulmonary embolus, pulmonary nodules, and bilateral generalized interstitial fibrosis, is granted. Entitlement to service connection for lumbago, lumbar spondylosis, multi-level spurring of the lumbar vertebral bodies, multiple bulging discs, osteoporosis, and degenerative changes of the lumbar spine, is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs