Citation Nr: 1322065 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-28 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for asthma, to include as secondary to herbicide and/or asbestos exposure. 2. Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide and/or asbestos exposure. 3. Entitlement to service connection for joint disease of the hands and knees (claimed as bone disease), to include as secondary to herbicide and/or asbestos exposure. 4. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide and/or asbestos exposure. 5. Entitlement to service connection for positional vertigo, to include as secondary to herbicide and/or asbestos exposure. 6. Entitlement to service connection for hypoactive thyroid, to include as secondary to herbicide and/or asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, denying the claims currently on appeal. These issues were previously remanded by the Board in May 2011. In an August 2011 statement, the Veteran listed his "problem list," which included a number of disabilities not on appeal. Specifically, the Veteran listed the following: (1) a skin disorder, (2) osteoarthritis of the spine/chronic low back pain, (3) chronic neck pain, (4) loss of 50 percent of upper body strength, (5) elevated prostate specific antigen (PSA), (6) diverticulitis, (7) hypertension, (8) septoplasty and bilateral turbinate reduction, (9) restless leg syndrome, (10) prostatic hypertrophy with urinary obstruction, (11) albuminuria, (12) history of a torn meniscus, (13) dyslipidemia, (14) allergic rhinitis, and (15) PTSD rated as 50 percent disabling. It is unclear from the Veteran's statement whether he was intending to file claims regarding these issues. Therefore, they are referred to the Agency of Original Jurisdiction (AOJ) for any necessary follow-up and subsequent appropriate action. FINDINGS OF FACT 1. The Veteran's exposure to asbestos during active military service is conceded. 2. The Veteran's asthma manifested as a result of exposure to asbestos during active military service. 3. The evidence of record fails to confirm that the Veteran was exposed to Agent Orange or other herbicidal agents during his active military service. 4. The Veteran's peripheral neuropathy is secondary to a work-related injury and did not manifest during, or as a result of, active military service, to include as due to exposure to asbestos and/or herbicides. 5. The Veteran's claimed joint disease of the hands and knees did not manifest during, or as a result of, active military service, to include as due to exposure to asbestos and/or herbicides. 6. The Veteran's diabetes mellitus did not manifest during, or as a result of, active military service, to include as due to exposure to asbestos and/or herbicides. 7. The Veteran does not have a diagnosis of vertigo and the evidence of record fails to demonstrate that such a disability arose during, or as a result of, active military service, to include as due to exposure to asbestos and/or herbicides. 8. The Veteran's hypoactive thyroid did not manifest during, or as a result of, active military service, to include as due to exposure to asbestos and/or herbicides. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for asthma as secondary to exposure to asbestos have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicides or asbestos, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for establishing entitlement to service connection for joint disease of the hands and knees, to include as due to exposure to herbicides or asbestos, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 4. The criteria for establishing entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides or asbestos, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 5. The criteria for establishing entitlement to service connection for positional vertigo, to include as due to exposure to herbicides or asbestos, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 6. The criteria for establishing entitlement to service connection for hypoactive thyroid, to include as due to exposure to herbicides or asbestos, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Letters sent to the Veteran in January 2004, April 2004, and August 2007 addressed all notice elements listed under 3.159(b)(1). The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. While the Veteran was not provided with all necessary notice until after the initial adjudication of the claims, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records and personnel records. Also, an independent medical opinion was obtained in December 2012, and VA has obtained a copy of this report as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records and Social Security Administration (SSA) records have also been obtained and incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its May 2011 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) contacted the Veteran and asked him to identify any additional evidence pertinent to his claims. He was also asked to provide VA with specific information regarding his alleged in-service knee injury and when he was first treated for asthma. Additional records have since been incorporated into the claims file. All reasonable efforts were also undertaken in an attempt to verify the Veteran's reported exposure to Agent Orange and his inland service while on "beach detachments." Finally, a medical opinion pertaining to all issues on appeal was obtained in December 2012. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Alleged Exposure to Asbestos Initially, the Board will address the Veteran's alleged exposure to Agent Orange during his active military service. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), but does not include cancer of the tongue. 38 C.F.R. § 3.309(e). The Board notes that of all of the disabilities currently on appeal, only diabetes mellitus is a disease listed above. While peripheral neuropathy is noted, this is only in the case of "acute or subacute peripheral neuropathy." In the present case, the Veteran has been diagnosed with chronic peripheral neuropathy. Acute or subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e) (Note 2). Also, as will be discussed in a subsequent section, the record contains affirmative evidence linking the Veteran's neuropathy to a post-service occupational injury. As such, even if there were evidence of herbicide exposure in this case, the presumption would not apply to the claims of entitlement to service connection for asthma, chronic peripheral neuropathy, joint disease of the hands and knees, positional vertigo or underactive thyroid. See id. A veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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(a)(6)(iii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f). "Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). (VA's requirement that a Veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for Agent Orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in Vietnam). In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Also, the Department of Defense (DOD) has confirmed that the herbicide, Agent Orange, was used from April 1968 through July 1969 along the Korean demilitarized zone (DMZ) to defoliate the fields of fire between the front line defensive positions and the south barrier fence. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. There is no indication that the herbicide was sprayed in the DMZ itself. Both the 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was being used. Field artillery, signal and other engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange. The estimated number of exposed personnel is 12,056. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003 (http://vbaw.vba.va.gov/bl/21/publicat/Letters/Other/AoKorea.doc). The Veteran's DD-214 reflects that he served in the US Navy and that he received the Vietnam Service Medal and the Vietnam Campaign Medal as a result of his service. The Veteran served with Attack Squadron 27 and was a maintenance technician. The Veteran has reported that he was on a "beach detachment" in South Vietnam while serving aboard the USS Constellation. He reported that A-7 aircraft were used to drop bombs and provide ground air support over South Vietnam. He also indicated that when these planes landed on emergency runways or had mechanical problems, the beach detachment did inland repairs so the planes could fly back to the carrier. The Veteran alleged that there was a shortage of trained A-7 mechanics at the time requiring a beach detachment from both VA-97 and VA-27. The Navy History and Heritage Command did not have Command History Reports from either Attack Squadron VA-27 or VA-97 for 1969 through 1970. However, they were able to supply the Command History Report from the USS Constellation for 1970. This failed to reflect any service on the shores of Vietnam or in the inland waters for any crew members. The history of the USS Constellation from 1969 was not located. The record also contains a memorandum dated May 2009 from the US Army & Joint Services Records Research Center (JSRRC). This reflects that upon reviewing numerous official military documents, ship histories, deck logs and other sources of information, the JSRRC had found no evidence indicating that Navy or Coast Guard ships transported tactical herbicides from the US to the Republic of Vietnam, or, that ships operating off the coast of Vietnam used, stored, tested or transported tactical herbicides. Additionally, the JSRRC could not document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. Therefore, the JSRRC could provide no evidence to support a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. An Agent Orange Verification Review Memorandum was prepared in October 2012. It was determined that there was a formal finding of a lack of information required to corroborate the Veteran's allegation of exposure to herbicides. In September 2011, the National Personnel Records Center (NPRC) was contacted. The NPRC provided copies of the Veteran's service personnel records in October 2011, reflecting that he was assigned to Attack Squadron 27 aboard the USS Constellation from August 1969 to October 1970. These do not reflect that the Veteran had service on the land or inland waters of Vietnam. The Naval History and Heritage Command was contacted in September 2011, who notified VA in December 2011 that records reflected the USS Constellation performed operations at Yankee Station. This station was considered to be blue water. Deck logs did not mention any multi-squadron "beach detachments" that repaired planes on land in Vietnam. It was also noted that while the Veteran alleged unloading barrels of Agent Orange from planes aboard his ship, the JSRRC had found no evidence to support a claim of herbicide exposure based solely on shipboard service or from planes and/or equipment that flew over Vietnam. Finally, in June 2012, the JSRRC informed VA that deck logs did not document any personnel assigned to any ships' beach detachment in Vietnam. The above evidence demonstrates that exposure to herbicidal agents on the part of the Veteran cannot be conceded. Despite the information provided by the Veteran, VA has been unable to corroborate that he in fact stepped foot in Vietnam during his military service. Rather, the evidence suggests that the Veteran's service was onboard the USS Constellation in the deep waters offshore of Vietnam. In his original report of exposure provided to VA in February 2004, the Veteran made no mention of flying into Vietnam to work on aircraft. Rather, he alleged Agent Orange exposure from sanding and painting planes that were running flight operations in South Vietnam. The evidence of record tends to support this assertion, as VA has been unable to corroborate service in Vietnam itself. As noted above, the JSRRC has been unable to find evidence to support herbicide exposure based on exposure to planes or equipment that were over Vietnam. As such, exposure to herbicidal agents is not conceded in this case. The Veteran has alleged that the evidence of record in fact demonstrates he was exposed to Agent Orange. In a statement received in March 2013, he argued that his exposure to Agent Orange had been verified. In support of this assertion, he noted that he was added to the Agent Orange Registry in 2003. The Veteran has also submitted a letter pertaining to his VA medical benefits, suggesting he was "Determined to be a Vietnam-era herbicides-exposed Veteran." While these records may on their face appear to suggest a history of Agent Orange exposure, there is no evidence that any efforts were undertaken by the examining physicians to verify actual exposure. The mere recitation of a veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). Therefore, notations of exposure to Agent Orange exposure in medical records are not in and of themselves evidence sufficient to demonstrate that the Veteran actually had qualifying service in Vietnam. Finally, the Veteran argued in March 2013 that his receipt of the Vietnam Campaign Medal and Vietnam Service Medal meant that service in the Republic of Vietnam had to be conceded. In support of this assertion, the Veteran cited Haas v. Nicholson, 20 Vet. App. 257 (2006). However, this decision was reversed in 2008 and it was held that in order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). As such, the Veteran's reliance on the 2006 Haas decision is in error. In summary, there is no evidence to corroborate that the Veteran was exposed to herbicidal agents such as Agent Orange during his service in Vietnam. As such, the theory of entitlement to service connection for the Veteran's claims as due to Agent Orange exposure will not be further discussed. Asthma The Veteran contends that he is entitled to service connection for asthma. Specifically, the Veteran has alleged that this disability is due to either exposure to herbicides such as Agent Orange or exposure to asbestos. As discussed above, the evidence of record fails to reflect that the Veteran was exposed to herbicidal agents such as Agent Orange. However, the evidence does suggest that he was in fact exposed to asbestos. The evidence of record further suggests that the Veteran's currently diagnosed disability of asthma is related to this exposure. As such, service connection for asthma is warranted. The Veteran's service treatment records do not reflect treatment for asthma during active military service. However, according to an October 1977 private treatment record, the Veteran was suffering from a productive cough and shortness of breath. He was diagnosed with bronchial asthma at this time. Subsequent records continue to reflect intermittent treatment for asthma. A November 2003 VA outpatient treatment record notes that the Veteran reported being diagnosed with asthma at the age of 29 or 30 after his discharge from military service. He had since had off and on trouble for years. A July 2010 VA treatment record also notes a history of asthma for the past 40 years. Finally, in December 2012, an independent medical opinion regarding this claim was obtained. It was noted that the evidence of record, including the Veteran's service records, were reviewed and considered. It was also noted that exposure to asbestos was conceded by VA in March 2012. The examining physician opined that it was at least as likely as not that the Veteran's claimed asthmatic condition was due to an asbestos related disease. The examiner explained that major symptoms associated with exposure to asbestos include persistent cough that produces mucus, chest tightness, cough and shortness of breath - all symptoms related to the Veteran's condition. The examiner explained that since the symptoms for asbestosis and asthma are similar, it was at least as likely as not that the "cross over" of symptomatology was one in the same. The examiner also related the Veteran's hypertension and unspecified skin condition (eczema) to his asthma and his asbestos exposure. However, these issues are not presently before the Board. In a December 2012 addendum, it was noted that it was less likely than not that the Veteran's appealed issues of peripheral neuropathy, joint disease of the hands and knees, diabetes mellitus, positional vertigo and underactive thyroid were related to asbestos exposure. The examiner explained that there was a lack of scientific evidence in the medical and scientific literature to support a nexus or etiology of these diseases and exposure to asbestos. When resolving all reasonable doubt in favor of the Veteran, the Board finds that the above evidence demonstrates that service connection for asthma is warranted. While there is no specific evidence of this condition during military service, exposure to asbestos has been conceded. The December 2012 physician opined that, in light of the conceded exposure to asbestos, it was at least as likely as not that the Veteran's currently diagnosed asthma was due to an asbestos related lung disease. Therefore, the claim of service connection for asthma is granted. Peripheral Neuropathy The Veteran also contends that he is entitled to service connection for peripheral neuropathy. Again, the Veteran has asserted that this arose either due to exposure to herbicidal agents or due to exposure to asbestos. As already discussed, the evidence of record fails to reflect exposure to Agent Orange or other herbicides. As such, the Board will not revisit this contention. Also, while there is evidence of asbestos exposure in this case, the preponderance of the evidence of record fails to relate the Veteran's peripheral neuropathy to asbestos exposure or military service in general, but rather to a post-service work injury. As such, service connection for peripheral neuropathy is not warranted. The Veteran's service treatment records do not reflect any treatment for peripheral neuropathy or any associated symptomatology during active military service. Also, an evaluation of the neurological system performed as part of the Veteran's release to inactive duty examination of September 1970 was deemed to be normal. The first post-service evidence of neuropathy are records from 2002 following an occupational lifting injury to the neck. An April 2002 private treatment record notes that the Veteran suffered a lifting injury approximately 8 days earlier. He now complained of neck pain, with pain in his right forearm and some tingling in the first four digits of the right hand. According to an August 2002 record from the Lexington Clinic, the Veteran was being seen at the request of his Workman's Compensation group. It was noted that on March 26, 2002, the Veteran was a truck driver who was involved in a lifting injury while opening the back door of a tractor-trailer. The door jammed as the Veteran was pushing it up and he sustained neck pain that extended into the right upper extremity and the first 4 digits. The pain briefly got better, but within 2 weeks it had returned and was severe. Examination revealed significant evidence consistent with a possible cervical radiculopathy. An electromyograph (EMG) and nerve conduction study were performed, revealing evidence consistent with a right C7 radiculopathy. These findings were noted to be new when compared to previous studies. A September 2002 record from the Associates in Neurology reflects diagnoses of cervical spondylosis and C-7 radiculopathy. An August 2002 record from the same facility notes that the Veteran's neck pain began suddenly following an incident at work in March 2002. This pain radiated to the trapezius, shoulders, upper arm, elbow, and forearm of the right side only. There was no mention of a prior history of neck pain or any injury during military service. A June 2002 record does note that the Veteran had some old ruptured biceps on the left, with no new symptoms, and no prior back or leg trouble except for some arthritis in the knees. A July 2004 VA outpatient treatment record notes that the Veteran had a history of compression fractures to the cervical spine. He also reported a 75 percent loss of function of the upper extremities as a result of his cervical spine problems. According to an April 2006 record, the Veteran had been experiencing neck pain with radiation into the arms, bilaterally, for about 5 years. This condition had worsened over the past year. According to an April 2005 VA psychiatric note, the Veteran suffered a compression fracture of the cervical spine in March 2002 in an on the job injury. The Veteran reported that this resulted in loss of upper body strength and right arm and right hand nerve damage. He also endorsed muscle spasms in the right leg. Finally, the Veteran reported that he ruptured his left biceps as a result of this accident. An April 2006 magnetic resonance image (MRI) revealed positive Spurlings on the right with radiation into the right arm. The Veteran was diagnosed with cervical polyneuropathy due to neural foraminal stenosis at the C4-5, C5-6 and C6-7 levels. According to a July 2010 VA treatment record, the Veteran was complaining of burning pain and itching in the bilateral upper extremities and legs. No specific diagnosis was assigned at this time but it was noted that extremity movement and strength were equal bilaterally. An October 2010 record notes a history of neck and muscle spasms of the left arm for many years. Finally, in December 2012, an independent medical opinion regarding this claim was obtained. It was noted that the evidence of record, including the Veteran's service records, were reviewed and considered. It was also noted that exposure to asbestos was conceded by VA in March 2012. In a December 2012 addendum, it was noted that it was less likely than not that the Veteran's appealed issues of peripheral neuropathy, joint disease of the hands and knees, diabetes mellitus, positional vertigo and underactive thyroid were related to asbestos exposure. The examiner explained that there was a lack of scientific evidence in the medical and scientific literature to support a nexus or etiology of these diseases and exposure to asbestos. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for peripheral neuropathy. There is no evidence of this condition during active military service. In fact, the first evidence of symptomatology associated with neuropathy is the Veteran's March 2002 work-related lifting injury. This is more than three decades after separation from active duty. The record does not reflect that the Veteran has alleged that he suffered from radiculopathy prior to this injury. In fact, the Veteran reported in his December 2003 VA Form 21-526 that his neuropathy first manifested in 2002. The Board recognizes that the Veteran has related this condition to either Agent Orange exposure or asbestos exposure. However, there is no evidence of Agent Orange exposure and the December 2012 physician explained that there was no scientific or medical evidence relating asbestos exposure to neuropathy. Rather, the evidence of record demonstrates that the Veteran's peripheral neuropathy developed as a result of an occupational injury to the neck sustained in 2002 and not because of military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for peripheral neuropathy, to include as secondary to exposure to Agent Orange or asbestos, must be denied. Joint Disease of the Hands and Knees The Veteran also contends that he is entitled to service connection for joint disease of the hands and knees. Again, the Veteran has asserted this arose either due to exposure to herbicidal agents or due to exposure to asbestos. As already discussed, the evidence of record fails to reflect exposure to Agent Orange. As such, the Board will not revisit this contention. Also, while there is evidence of asbestos exposure in this case, the preponderance of the evidence of record fails to relate the Veteran's joint disease to asbestos exposure or military service in general. As such, service connection for joint disease of the hands and knees is not warranted. The Veteran's application for enlistment noted that he had marks or scars of the right hand, both knees and both elbows prior to enlistment. The nature of these scars is not clear. There are no further complaints pertaining to the joints during active military service, aside from an injury sustained when the Veteran dropped a weight on his right great toe. He has not claimed service connection for any chronic disability associated with this incident. Also, according to the Veteran's September 1970 release to inactive duty examination, an evaluation of the musculoskeletal system, the upper extremities and the lower extremities was deemed to be normal. The first post-service evidence of joint symptomatology is a September 2002 record from the Associates in Neurology noting a diagnosis of osteoarthritis. The specific joints affected were not noted. A December 2004 VA outpatient treatment record also reflects a complaint of bilateral knee pain "for several years," with the left knee being worse than the right. Another December 2004 record notes that the Veteran sprained his left knee the previous day while bending over to plug in Christmas tree lights. The record reflects that the Veteran reported during a March 2003 VA Agent Orange Registry Examination that he had a history of trauma to the knees while in the military. He indicated that his "kneecaps were put back in place." The record contains no medical evidence regarding this alleged incident. The Veteran also underwent a left total knee arthroplasty (TKA) in January 2007. An earlier record dated May 2005 reflects a left knee arthroscopy with meniscal debridement and chondroplasty. Another May 2005 record reflects left knee pain with the left knee having given way in December 2004. The Veteran subsequently underwent a right TKA in December 2008. VA X-rays from 2009 confirm that the Veteran was status post-TKA, bilaterally. None of these records relate the Veteran's current knee problems to military service. In December 2012, an independent medical opinion regarding this claim was obtained. It was noted that the evidence of record, including the Veteran's service records, were reviewed and considered. It was also noted that exposure to asbestos was conceded by VA in March 2012. In a December 2012 addendum, it was noted that it was less likely than not that the Veteran's appealed issues of peripheral neuropathy, joint disease of the hands and knees, diabetes mellitus, positional vertigo and underactive thyroid were related to asbestos exposure. The examiner explained that there was a lack of scientific evidence in the medical and scientific literature to support a nexus or etiology of these diseases and exposure to asbestos. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for joint disease of the hands and knees. There is no evidence of any injury or symptomatology associated with these joints during active military service, and an evaluation of the Veteran's musculoskeletal system, lower extremities and upper extremities was deemed to be normal during his September 1970 release to inactive duty examination. The first post-service evidence of joint symptomatology is from 2002 - more than three decades after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). The absence of any evidence of complaints or treatment involving the joints for more than 30 years tends to suggest that a joint condition had not existed since military service. The record contains no competent or credible evidence linking a joint condition to military service, and according to the December 2012 VA physician, it was less likely than not that a joint condition was related to the Veteran's conceded exposure to asbestos. As such, the preponderance of the evidence of record demonstrates that service connection for a joint condition is not warranted. The Board recognizes that the Veteran currently has a diagnosis of joint problems and that he informed the March 2003 VA physician that he suffered an injury to the knees during military service requiring his knee caps be put back in place. An October 2005 VA treatment record also indicates a history of a right knee scope in 1969. While the Board has considered this evidence, it does not find it to be credible. The Veteran's service treatment records do not reflect any injury to the knee and there was no mention of such a history upon separation in 1970. There is no subsequent evidence regarding the knees for another 3 decades, and the Veteran only reported a history of knee pain for "several years" in December 2004. If the Veteran had suffered from knee problems since 1969, it seems highly unlikely that he would refer to a "several" year history. Finally, the Veteran himself admitted in an August 2011 statement that he was no longer sure when he in fact injured his right knee. As such, the Board does not find the references to in-service knee symptomatology to be credible evidence relating the Veteran's current knee disabilities to military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for joint disease of the hands and knees must be denied. Diabetes Mellitus The Veteran also contends that he is entitled to service connection for diabetes mellitus type II. Again, the Veteran has asserted this arose either due to exposure to herbicidal agents or due to exposure to asbestos. As discussed already, the evidence of record fails to reflect exposure to Agent Orange and the Board will not revisit this contention. Also, while there is evidence of asbestos exposure in this case, the preponderance of the evidence of record fails to relate the Veteran's diabetes mellitus to asbestos exposure or military service in general. As such, service connection for diabetes mellitus is not warranted. The Veteran's service treatment records do not reflect a diagnosis of diabetes mellitus during military service. Also, according to the Veteran's September 1970 release to active duty examination, a urinalysis revealed albumin and sugar to be negative. There is no further evidence of diabetes mellitus for more than 30 years following separation from active duty. According to an August 2003 VA outpatient treatment record, the Veteran reported that he was diagnosed with diabetes mellitus in January 2003. A March 2003 VA Agent Orange Registry Examination report reflects that the Veteran reported being diagnosed with diabetes in 2001. An October 2010 VA treatment record again confirms a diagnosis of diabetes mellitus type II. In December 2012, an independent medical opinion regarding this claim was obtained. It was noted that the evidence of record, including the Veteran's service records, were reviewed and considered. It was also noted that exposure to asbestos was conceded by VA in March 2012. In a December 2012 addendum, it was noted that it was less likely than not that the Veteran's appealed issues of peripheral neuropathy, joint disease of the hands and knees, diabetes mellitus, positional vertigo and underactive thyroid were related to asbestos exposure. The examiner explained that there was a lack of scientific evidence in the medical and scientific literature to support a nexus or etiology of these diseases and exposure to asbestos. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for diabetes mellitus. There is no evidence of this condition during active military service. In fact, his September 1970 release to inactive duty examination specifically noted that a urinalysis revealed sugar and albumin to be negative. There is no further evidence of diabetes mellitus for more than 30 years when the Veteran reported being diagnosed with this condition in 2001. The Board recognizes that the Veteran has related this condition to Agent Orange exposure. However, as already discussed, the evidence fails to demonstrate that the Veteran was exposed to herbicides such as Agent Orange during his active duty. Also, while he has asserted that his diabetes mellitus may also be due to exposure to asbestos, the December 2012 VA physician concluded that it was less likely than not that diabetes manifested as a result of exposure to asbestos. Therefore, since there is no evidence of this condition in service or any competent evidence relating the currently diagnosed disability to military service, service connection for diabetes mellitus is not warranted. The Board recognizes that the Veteran believes he is entitled to service connection for diabetes mellitus. However, the evidence of record fails to reflect that the Veteran has the requisite training or expertise to relate his currently diagnosed diabetes mellitus to his military service more than 30 years earlier. When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana, 24 Vet. App. at 428; see also Jandreau, 492 F.3d at 1377. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for diabetes mellitus, type II, must be denied. Positional Vertigo The Veteran also contends that he is entitled to service connection for positional vertigo. Again, the Veteran has asserted this arose either due to exposure to herbicidal agents or due to exposure to asbestos. However, the preponderance of the evidence of record also fails to relate the Veteran's reported symptomatology to asbestos exposure or military service in general. As such, service connection for positional vertigo is not warranted. The Veteran's service treatment records fail to reflect any treatment for vertigo or any associated symptomatology. Records from November 1969 do reflect right ear complaints. The ear canal was cleaned and the record does not reflect further treatment. A January 1970 record also reflects complaints of nausea with diarrhea. However, the records fail to reflect that any chronic condition was diagnosed and the Veteran's removal to inactive duty examination makes no mention of vertigo or any associated symptomatology. Post-service treatment records also fail to reflect that the Veteran suffers from a chronic disability manifested by vertigo symptomatology that began during, or as a result of, active military service. In April 2008, the Veteran did report a history of dizziness for the past 1 month. However, a January 2007 VA treatment record reflects that the Veteran denied dizziness. A December 2008 VA treatment record also indicates that the Veteran denied suffering from vertigo at this time. He also denied suffering from dizziness, numbness or weakness upon treatment in June 2010. In December 2012, an independent medical opinion regarding this claim was obtained. It was noted that the evidence of record, including the Veteran's service records, were reviewed and considered. It was also noted that exposure to asbestos was conceded by VA in March 2012. In a December 2012 addendum, it was noted that it was less likely than not that the Veteran's appealed issues of peripheral neuropathy, joint disease of the hands and knees, diabetes mellitus, positional vertigo and underactive thyroid were related to asbestos exposure. The examiner explained that there was a lack of scientific evidence in the medical and scientific literature to support a nexus or etiology of these diseases and exposure to asbestos. The preponderance of the above evidence demonstrates that service connection for positional vertigo is not warranted. Initially, the Board notes that the record does not reflect a confirmed diagnosis of vertigo. There must be a current diagnosis of a disorder for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999). The Board recognizes that the Veteran has reported symptomatology of dizziness in the past - something that he is certainly competent to offer testimony about. However, the Veteran has been inconsistent in his reports, denying vertigo in December 2008 and denying dizziness in January 2007. The record contains no competent evidence relating the Veteran's symptomatology to military service, and the December 2012 VA physician opined that it was less likely as not that this condition was due to exposure to asbestos. As such, the record fails to demonstrate a nexus between the Veteran's subjective symptomatology and military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for positional vertigo must be denied. Hypoactive Thyroid Finally, the Veteran contends that he is entitled to service connection for a hypoactive thyroid. Again, the Veteran has asserted this arose either due to exposure to herbicidal agents or due to exposure to asbestos. As discussed in the first section, the evidence of record fails to reflect exposure to Agent Orange. Also, while there is evidence of asbestos exposure in this case, the preponderance of the evidence of record fails to relate the Veteran's hypoactive thyroid to asbestos exposure or military service in general. As such, service connection for a hypoactive thyroid is not warranted. The Veteran's service treatment records fail to reflect treatment or complaints for a hypoactive thyroid or any associated symptomatology. There is also no post-service evidence of this condition for more than 30 years after separation from active duty. A January 2004 VA treatment record reflects that the Veteran was suffering from stable hypothyroidism. Subsequent records continue to reflect a diagnosis of this condition. However, none of these records relate this condition to military service. In December 2012, an independent medical opinion regarding this claim was obtained. It was noted that the evidence of record, including the Veteran's service records, were reviewed and considered. It was also noted that exposure to asbestos was conceded by VA in March 2012. In a December 2012 addendum, it was noted that it was less likely than not that the Veteran's appealed issues of peripheral neuropathy, joint disease of the hands and knees, diabetes mellitus, positional vertigo and underactive thyroid were related to asbestos exposure. The examiner explained that there was a lack of scientific evidence in the medical and scientific literature to support a nexus or etiology of these diseases and exposure to asbestos. The preponderance of the above evidence demonstrates that service connection for a hypoactive thyroid is not warranted. There is no evidence of this condition during military service and an evaluation of the endocrine system as part of the Veteran's September 1970 release to inactive duty examination was deemed to be normal. Likewise, there is no evidence of this condition for more than 30 years after separation from active duty. Finally, the record contains no competent evidence linking this condition to military service, and the December 2012 VA physician opined it was less likely as not that this condition arose as due to exposure to asbestos. The Board recognizes that the Veteran believes this condition is secondary to exposure to herbicidal agents such as Agent Orange. However, the evidence of record fails to demonstrate that the Veteran was exposed to any herbicidal agents in conjunction with his military service. As there is no competent evidence relating the present diagnosis to military service, service connection is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for hypothyroidism must be denied. ORDER Service connection for asthma is granted. Service connection for peripheral neuropathy, to include as secondary to exposure to herbicides and/or asbestos, is denied. Service connection for joint disease of the hands and knees, to include as secondary to exposure to herbicides and/or asbestos, is denied. Service connection for diabetes mellitus type II, to include as secondary to exposure to herbicides and/or asbestos, is denied. Service connection for positional vertigo, to include as secondary to exposure to herbicides and/or asbestos, is denied. Service connection for hypoactive thyroid, to include as secondary to exposure to herbicides and/or asbestos, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs