Citation Nr: 1320425 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 12-00 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a respiratory disability. ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Vietnam Era Veteran served on active duty from September 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The RO characterized the issue as a service connection claim for sleep apnea; however, the Veteran asserts that he has respiratory issues other than sleep apnea. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a disability claim includes any disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). In compliance with the Court's holding in Clemons, the Board has recharacterized the issue as reflected above, on the first page. FINDING OF FACT There is no evidence of record that the Veteran has a respiratory disability that is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met. 38 U.S.C.A. §1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING 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 matter, substantially compliant notice was sent in June 2010 to the Veteran. In response to the June 2010 VCAA notice, the Veteran provided a statement in support of his claim in which he details how he was exposed to asbestos in service and how he uses a breathing machine during the night. With regard to the duty to assist, the RO obtained service treatment records (STRs), personnel records, and post-service medical records, including medical records from the VA. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file and the Veteran has not contended otherwise. Medical opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was not afforded a VA examination; however, the Board finds that a medical opinion on the question of service connection for a respiratory disability is not required. The Board's finding rests on the complete lack of evidence indicating that the Veteran has a respiratory disability that may be associated with service. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). Furthermore, sufficient competent medical evidence is of record to decide the claim. Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to notify or to assist that was unmet. II. Legal Criteria Service Connection 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). 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). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence includes 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, 492 F.3d at 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In McGinty v. Brown, the Court observed that there has not been any 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). However, 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 was subsumed verbatim as § 7.21 of M21-1, Part VI. (This has now been reclassified in a revision to the M21-1, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The manual guidelines note that that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce various other cancers and tumors particularly in the chest and throat. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9; see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of various cancers, including cancers of the lung, bronchus, larynx and pharynx. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, that an asbestos-related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. Id. The Court has also held that neither the manual 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 to 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. The M21-1MR lists occupations involving mining; milling; working in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacturing and servicing of friction products, such as clutch facings and brake linings; and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment as some of the major occupations involving exposure to asbestos. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9.f. III. Factual Background The Veteran contends that his respiratory disability was acquired due to exposure to asbestos during his military service. In this case, there is no evidence showing that the Veteran has been diagnosed with asbestosis or any other disease associated with exposure to asbestos. The Veteran's STRs, which span from September 1965 through September 1969, provide no indication of in-service respiratory complaints, symptoms, treatment, or diagnosis of a respiratory disability. In reports from the Veteran's September 1965 enlistment exam and from the Veteran's August 1969 pre-separation examination, it is noted that x-rays of the Veteran's chest indicated no defects. The Veteran's September 1965 enlistment examination indicates that the Veteran's lungs and chest were observed as normal and the Veteran affirmatively denied having had the following respiratory conditions: asthma, shortness of breath, pain or pressure in chest, or chronic cough. The Veteran's September 1969 separation examination records also denote that his lungs and chest were observed as "normal." See Veteran's Service Treatment Records. The Veteran's service records and the Veteran's May 2010 statement indicate that the Veteran served as boatswain's mate in the United States Navy aboard USS Pluck and also served aboard the USS Salisbury Sound and the USS Implicit. See Veteran's Service Records; see also Veteran's May 2010 Statement. Post-service, VA treatment records indicate that cardiac stents were placed in the Veteran's arteries in February 2009 and in July 2009, the Veteran received treatment for diagnosed obesity. In October 2009, the Veteran reported experiencing shortness of breath and chest pressure after walking for 45 minutes, but after resting for one to two minutes, the symptoms subsided. The Veteran also reported a history of smoking up to two packs per day, but indicated that he quit smoking in 1990. See VA Treatment Records. VA treatment records indicate that in February 2010, the Veteran was advised of the health risks associated with obesity, including sleep apnea. Also in February 2010, the Veteran underwent a respiratory therapy initial evaluation and was diagnosed with sleep apnea. The respiratory therapy technician noted that the goal of the therapy was "1) symptomatic relief of shortness of breath; 2) increased exercise tolerance; and 3) prevent complications of chronic hypoxemia." The Veteran's sleep apnea was treated with a continuous positive airway pressure (CPAP) machine in which he was instructed to wear while sleeping. See VA Treatment Records February 2010. In March 2010, the Veteran reported to the Marion, Indiana VA Medical Center with "cold symptoms" that he reportedly experienced for three weeks prior to his visit. The Veteran also reported nasal drainage and right ear pain; he specifically reported experiencing "a cough with yellow phlegm; a raw feeling in the sinuses, and sinus congestion." The Veteran denied, specifically: "fever, vomiting, bleeding, wheezing, or shortness of breath." The Veteran was diagnosed with bronchitis. See VA Treatment Records March 2010. In May 2010, the Veteran reported to a VA Medical Center for a follow up appointment and denied experiencing shortness of breath or chest pain; it is also noted that the Veteran failed to attend a follow up appointment with his dietitian. The Veteran has a history of a tobacco use disorder, but the disorder was in remission on the date of the record. The Veteran continued treatment for sleep apnea, no connection to service was provided with diagnosis. The Veteran submitted a statement in support of claim in June 2010, in which he asserts that the Fort Wayne VA has medical evidence regarding his breathing problems and that he was in dry dock from November 1965 through March 1966 refurbishing the USS Salisbury Sound. The Veteran also states that he was exposed to fumes from sea planes and performed painting, sanding, and unloaded cargo while in service; he mentions that a person died as a result of the plane fumes. The Veteran also indicates that he worked in the construction field post-service. See June 2010 Veteran's Statement. In an August 2010 statement, the Veteran stated his disagreement with the decision made by the RO to deny his claim for service connection for breathing problems associated with exposure to asbestos and stated that he suffers from "other breathing problems," in addition to sleep apnea. The Veteran also requested an examination to determine his lung capacity. The Veteran's representative also submitted a letter in August 2010 reiterating the Veteran's August 2010 statement. In November 2010, the Veteran provided a statement which detailed the work that he performed aboard the USS Salisbury Sound. The Veteran asserts that the boilers and steam lines, "covered with asbestos," were replaced on the ship and that he was required to clean the area. The Veteran also reinserted that he unloaded cargo from ships in Vietnam and was exposed to asbestos. Neither the Veteran's STRs nor his post-service treatment records indicate a nexus between military service and his respiratory disability. IV. Analysis The Veteran contends that exposure to asbestos while in service has resulted in his respiratory disability. Upon a full review of the record, the Board must deny the Veteran's claim. Based on the Veteran's reported in-service work cleaning during the refurbishing of the USS Salisbury Sound and service records confirming that the Veteran was assigned to the USS Salisbury Sound during the time period reported by the Veteran, the Board concedes that it is possible that the Veteran was exposed to asbestos during his US Naval service. However, exposure to asbestos, in and of itself, is not a disability for which VA grants service connection. Without competent medical or lay evidence of a disability, the claim must fail. As mentioned above, the 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. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The RO obtained all medical evidence indicated by the Veteran, including records from VA Fort Wayne, Indiana, and there is no medical evidence that the Veteran was diagnosed with an asbestos-related disease. While the Veteran has a current diagnosis of sleep apnea, there is no indication of a correlation between the Veteran's service and his sleep apnea. Rather, the Veteran's VA treatment records appear to indicate that the Veteran's sleep apnea may be due to his obesity. As discussed above, records dated in February 2010 show that sleep apnea was considered to be a risk factor of obesity. Regardless of the actual etiology of the Veteran's sleep apnea, the fact remains that none of the Veteran's treatment records indicate that it is related to his military service, to include his possible asbestos exposure. Therefore, the Board reiterates that the evidence fails to show a nexus between sleep apnea and the Veteran's military service. The Board also acknowledges the Veteran's contention that he has breathing problems other than sleep apnea. However, the pertinent medical evidence of record does not reveal a diagnosis of any other respiratory disability. While the Veteran is competent and credible to report that he has respiratory symptoms other than those associated with sleep apnea, without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The Court held that symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) In this case, as discussed above, the evidence shows a current diagnosis of sleep apnea, but of no other respiratory disability to account for the Veteran's complaints of other breathing problems. Therefore, to the extent that the Veteran contends having a respiratory disability other than sleep apnea, the evidence fails to show a disability for which service connection may be granted. The Board acknowledges that the Veteran is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of sleep apnea, and other unestablished breathing respiratory disabilities, fall outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). As such, the Veteran's own assertions as to etiology have no probative value. In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory disability is denied. ____________________________________________ Michael Martin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs