Citation Nr: 1322643 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-42 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a lung disorder, to include asbestosis or other disorder due to exposure to asbestos, or a lung disorder due to exposure to herbicides or to a hazardous chemical. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to May 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2008 and December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board Remanded the appeal in February 2011. By a rating decision prepared in September 2012 and issued in October 2012, the RO granted service connection for bilateral hearing loss. The claims files and electronic file before the Board do not disclose that the Veteran has disagreed with any aspect of the grant of service connection for hearing loss. Therefore, that claim for service connection, which was addressed by the Board in its February 2011 Remand, is not before the Board for appellate review at this time. In a statement submitted to the Board in January 2013, the Veteran asserted that he was "full of arthritis" as a result of his exposure to an unidentified hazardous chemical, and he continued his assertion that he was exposed to asbestos and herbicides. The Veteran's statement, which may be interpreted as a claim for service connection for arthritis, is referred to the agency of original jurisdiction. The claimant's claims files, including all records obtained during the course of the 2011 Remand, and the electronic (virtual) file, have been reviewed. The Veteran submitted an additional statement in January 2013 essentially reiterating his prior arguments. The statement did not include medical evidence or identify additional medical evidence which should be reviewed. This statement does not require review by the agency of original jurisdiction. In May 2010, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing is of record. FINDING OF FACT The opinion that an abnormality identified in the Veteran's left lung, lower lobe, is not malignant, is not due to exposure to asbestos, and is most likely a non-specific lower lobe scar or non-specific lymphadenopathy, establishes that the abnormality is not a lung disorder which may be linked to the Veteran's service or any incident therein, to include exposure to asbestos, herbicides, or a hazardous chemical. CONCLUSION OF LAW The criteria for establishing service connection for asbestosis or a lung disorder due to exposure to asbestos, herbicides, or an unidentified hazardous chemical, are not met, nor may service incurrence be presumed. 38 U.S.C.A. §§ 101(16), 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2012); Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends, in essence, that he has a current lung disorder which is due to exposure to asbestos or herbicides or an unidentified hazardous chemical. Before addressing the Veteran's claim on the merits, the Board will review whether VA has met its duties or notify and assist the Veteran. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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, 3.326(a). Proper notice from VA must inform the claimant 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 claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the 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. In this case, following the Veteran's submission of claims for service connection in June 2008, the RO issued a June 2008 letter which advised the Veteran of the criteria for service connection. The letter advised the Veteran of the criteria for determining disability evaluation assignments and effective date assignments when any claim for service connection is granted. The Veteran was advised of the evidence he was expected to provide and the evidence that VA was responsible to obtain. Additionally, the letter advised the Veteran that his claim that he was exposed to asbestos was not complete until he identified a disorder which resulted from the alleged exposure to asbestos. Later, the Veteran received numerous post-adjudicative notices following the BVA Remand in February 2011. 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). The Veteran's responses to the letters establish that he understood his responsibility to identify evidence and VA's responsibility to obtain evidence and establish that he understood what types of evidence he might provide to meet the criteria for service connection for his lung disorder on different bases. The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. If any notice deficiency is present in this case, the Board finds that any prejudice due to an error in notice has been overcome in this case by the complete development conducted following the 2011 Board Remand. The record, including the Veteran's testimony before the Board and his numerous statements of record, demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the claim at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). The Board Remanded the appeal in 2011 to obtain a more complete VA examination, and the Veteran was afforded additional VA examination. The July 2011 VA examination report is thorough, and is an adequate basis for a decision with regard to the Veteran's appeal. The Board is satisfied that there has been substantial compliance with the requirements of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). As explained in more detail below, the board also finds that the examination is adequate to address the Veteran's contention that he has a lung disorder resulting from exposure to herbicides or an unidentified hazardous chemical. VA obtained the Veteran's service medical records. VA has obtained the records of the Veteran's VA treatment. The Board Remanded the appeal in 2011, and that Remand discussed at length the criteria for establishing service connection for a disorder due to exposure to asbestos or herbicides. The Veteran has testified on his own behalf, as noted in the Introduction to this decision. The Veteran has specified that he has not obtained any care outside VA for any disorder relevant to the appeal. The Veteran, who is employed, has not indicated that he receives or has applied for disability benefits through the Social Security Administration (SSA). 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 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). Some discussion of the Veteran's hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified at the October 2010 Travel Board hearing. The symptoms of his disability were described in detail. The Veteran's testimony establishes that he understood the criteria for a higher rating for his left arm injury, and comparison of the hearing transcript with the report of the 2011 VA examination demonstrates that the Veteran's lay statements were considered during the 2011 VA examination. 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). In view of the above, the Board finds no further notice or assistance is required to fulfill VA's duty to assist 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). 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) medical, or in certain instances, lay evidence of a nexus between an in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009); 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"). See also 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)): Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 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 diabetes mellitus, 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. Malignant tumors are defined as chronic diseases. 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). "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). Facts and Analysis The Veteran contends that he is entitled to service connection for a lung disorder, variously claimed as asbestosis or "lumps" in the lungs. The Veteran contends that he was exposed to asbestos, to herbicides, and to an unidentified hazardous chemical. The agency of original jurisdiction assumed that the Veteran was exposed to asbestos in service. May 2008 VA inpatient treatment records reflect that a chest x-ray revealed pleural thickening and a nodule in the left lung. Computed tomography (CT) examination was conducted. A 5-mm density was found in the left lung base, and there were lymph nodes seen in the mediastinum, with a prominent lymph node adjacent to the left pulmonary artery. There were emphysematous changes. The Veteran was advised to follow-up with a repeat CT of the chest in three months. In November 2008, a CT of the chest showed that the 5-mm density was unchanged, there were no additional lesions, and no other changes. Repeat CT examinations of the chest in November 2009 and May 2010 were interpreted as showing no significant interval change, with a small left lower lobe nodule seen unchanged in size or configuration. The nodule was described as 4 mm in size in the May 2010 report. Lymph nodes in the mediastinum (described as in the pre-carinal area and the aortopulmonic window, were not pathologic). On VA examination conducted in July 2011, the examiner noted that the Veteran worked in an engine room in a naval vessel and was exposed to asbestos when unwrapping and rewrapping pipes. The examiner stated that a left lung lower lobe nodule was found in 2008. Repeated CT imaging every 6 months for two years showed no changes. The examiner concluded that the Veteran likely had low-level exposure to asbestos in service. The examiner further concluded that the "nonspecific nature of his minor imaging abnormality, and its lack of change over 2 years of observation with CT scanning" made it unlikely that the nodule was a malignancy or other asbestos-related pulmonary parenchymal abnormality. The examiner further opined that it was "most likely" that the Veteran had a non-specific L[eft]L[ower]L[obe] scar and nonspecific lymphadenopathy, rather than a condition caused by asbestos exposure. The Veteran indicates, in a January 2013 statement, that the nodule in his lung "went from 3 cmm - 6 cmm." However, the Veteran did not explain what particular pulmonary symptoms resulted; nor has he provided any medical evidence to support his statement that the nodule increased in size or otherwise indicate that there is an available medical record which would show such a change. Moreover, the VA extensive VA clinical records through July 2011 available in the Virtual VA "e-file" do not contain reference to pulmonary symptoms. The Veteran, as a lay person, is not competent to provide a medical estimate of the size of a nodule in his lung, since that nodule is not observable by a lay person. There is no clinical evidence of record which shows that the Veteran's left lung lower lobe nodule was 3 millimeters in size at any time during the pendency of his claim. Thus, the Veteran's January 2013 statement that the left lung nodule has changed in size from "3 cmm" to "6 cmm" lacks a factual basis. The Veteran has not identified any provider who may have told him that the left lung nodule was 3 millimeters or 3 centimeters in size, nor has the Veteran identified when such size was noted. Since there is no objective evidence in the medical records that a provider estimated the size of the Veteran's left lung nodule as three centimeters or three millimeters in size, the Veteran's statements that the left lung nodule was estimated at this size is not credible. Similarly, the Veteran has not identified any provider who may have told him the left lung nodule was six millimeters or six centimeters size. The Veteran has not identified any provider who may have told him that the left lung nodule was six millimeters or 6 centimeters in size, nor has the Veteran identified when such size was noted. Since there is no objective evidence in the medical records that a provider estimated the size of the Veteran's left lung nodule as six centimeters or six millimeters in size, the Veteran's statements that the left lung nodule was estimated at this size is not credible. The 2011 VA opinion is unfavorable to the Veteran's contention that he has asbestosis, since a diagnosis of asbestosis was considered, and the examiner determined that asbestosis was not present. Moreover, the examiner considered whether a diagnosis of any asbestos-related disorder was present, and that no diagnosis of a disorder related to exposure to asbestos was appropriate. Thus, the opinion is unfavorable to the Veteran's contention that, even if asbestosis is not present, he has a lung disorder due to exposure to asbestos. The examiner clearly states that it is unlikely that the nodule finding on CT scan is asbestos-related. Thus, service connection for the nodule on the left lower lung as a residual of exposure to asbestos is not warranted. Moreover, the examiner's opinion is unfavorable to a claim for service connection for the nodule on any basis, since the examiner has described the nodule as an "imaging abnormality" or a non-specific left lower lobe scar. Since the description of the nodule as an "imaging abnormality" is essentially an opinion that there are no objective symptoms or pathology indicative of disability, the examiner's statement is an opinion that the nodule is equivalent to a laboratory finding. Like an abnormal laboratory finding, an abnormality such as a nodule on the lung disclosed by diagnostic examination that is not pathologic and results in no objective symptomatology is not a disability for VA purposes, since there is no industrial impairment. See 38 C.F.R. §§ 4.1, 4.10; 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses such as hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities, and are not appropriate entities for the rating schedule). The examiner's opinion that there is a non-specific scar and non-specific lymphadenopathy is unfavorable to the claim for service connection for a lung disorder on any basis, since the opinion that the scar and the lymphadenopathy are "non-specific" is, in essence, a determination that those findings cannot be linked to any incident of the Veteran's service, such as claimed exposure to herbicides or to an unidentified hazardous chemical. The examiner's opinion does not provide any basis for linking a non-specific scar or a non-specific lymphadenopathy to the Veteran's service, such as an exposure to herbicides or an unidentified hazardous chemical. The Board notes that VA has located no support for the Veteran's contention that he was exposed to herbicides or an unidentified hazardous chemical. As the AOJ noted in a September 2012 memorandum, the Veteran's DD-214 is silent regarding any service in the waters in Vietnam in a location which would entitle the Veteran to a presumption that he was exposed to herbicides. The Veteran served on board the USS HUGH PURVIS (DD-709). The agency of original jurisdiction was unable to find any information that the USS HUGH PURVIS was deployed to Vietnam at a time when the Veteran served on board. The AOJ also noted that the Veteran's personnel records were inconsistent with a finding that the Veteran was on board during any period of the ship's known deployment to Vietnam. The AOJ also noted that the National Personnel Records Center stated, in response to a February 2012 request for information, that there is no evidence to substantiate any service in Vietnam for the Veteran. Because there is no evidence that the Veteran served in Vietnam, no presumption of exposure to herbicides applies. Nevertheless, the Board must also consider the Veteran's claim for service connection for a disorder due to exposure to herbicides or a hazardous chemical on a direct basis to afford him all possible avenues of entitlement. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). That is to say, the presumptions related to herbicide exposure do not preclude a Veteran from establishing direct service connection with proof of actual direct causation. The United States Court of Appeals for the Federal Circuit noted in Combee that establishing actual causation of a disorder by herbicides "carries a difficult burden of proof." 34 F.3d at 1042. The same burden applies to the Veteran's claim that he was exposed to an unidentified hazardous chemical and has a current disorder due to that exposure. The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). However, the examiner's opinion that the identified findings are "non-specific" fails to support service connection on any basis. The examiner's opinion indicates that medical knowledge provides no basis to link the identified pulmonary findings to any incident of the Veteran's service, to include exposure to herbicides or exposure to other identified hazardous chemicals. There is no medical evidence that exposure to herbicides or to an unidentified hazardous chemical is related to the Veteran's development of an abnormality identified on imaging, or to a non-specific scar or lympthadenopathy. The Board recognizes that the Veteran believes he is entitled to service connection for a "lump" on his left lung. However, as a layperson, the Veteran is not competent to provide a medical opinion regarding the etiology of a lump on a lung, nor is this finding a matter that is observable by a lay person. See Davidson, Jandreau. As such, the Veteran's opinion on this matter is of no probative value. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of medical evidence that the Veteran has asbestosis, or other disorder due to exposure to asbestos, or a lung disorder due to exposure to herbicides or to a hazardous chemical, the preponderance of the evidence is against a finding that the Veteran incurred any such disorder in service. 38 U.S.C.A. § 5017(b). 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 a lung disorder, to include asbestosis or other disorder due to exposure to asbestos, or a lung disorder due to exposure to herbicides or to a hazardous chemical, must be denied. ORDER Entitlement to service connection for a lung disorder claimed as asbestosis or a disorder due to exposure to asbestos, or for a lung disorder due to exposure to herbicides or a hazardous chemical, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs