Citation Nr: 1328502 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-09 400 ) DATE ) ) On appeal from the Department of Veterans Affairs in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant served in the Air National Guard between February 1952 and August 1993, with active duty for training (ACDUTRA) from May 8, 1957 to May 13, 1957, from September 28, 1957 to October 4, 1957, and from March 15, 1958 to March 17, 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Cleveland, Ohio. Jurisdiction over the appellant's claims file was subsequently transferred to the RO in Providence, Rhode Island. In July 2013, the appellant was afforded a videoconference hearing the undersigned Veterans Law Judge. FINDING OF FACT The evidence of record does not demonstrate that the appellant has a shoulder disability, a knee disability, hypertension, or a respiratory disability, that was caused by his service. CONCLUSION OF LAW A shoulder disability, a knee disability, hypertension, and a respiratory disability, were not caused by the appellant's service. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.6 (2012); REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The appellant asserts that he is entitled to service connection for a shoulder disability, a knee disability, hypertension, and a respiratory disability. He asserts that he injured his right shoulder while removing his "B-4 bag" from his car after a deployment to Andrews Air Force Base. He also argues that he sustained a left rotator cuff tear. He has stated that both injuries occurred while he was on active duty in 1991. See appellant's statement (VA Form 21- 4142), received in December 2011; VA Form 21-4138, received in July 2011. However, in his claim (VA Form 21-526), received in December 2010, the appellant indicated that he injured his shoulders in 1990, and during his July 2013 hearing, he testified that he injured his shoulder in 1992. With regard to the claims for a bilateral knee disability, and hypertension, the appellant indicated that these conditions began in 1975. Id. With regard to his claim for a respiratory disability, the appellant has indicated that this condition began in 1985, and that it is related to exposure to asbestos while training airmen in firefighting duties. Id.; appellant's statements (VA Form 21-4138s), received in January and February of 2011. However, during his July 2013 hearing, he testified that it happened "out of the blue," about 30 years ago; he testified that he has never been told that he has asbestosis. The Board notes that during the appellant's July 2013 hearing, it was argued that the appellant received private treatment for his shoulders shortly after his claimed injuries, and it was conceded that these records had not been associated with the claims file. It was agreed that the record would be held open for 30 days to allow the appellant to obtain and submit this evidence. However, there is no record to show that any medical evidence was ever received. In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 2002) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated by inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002 & Supp. 2012). Under 38 U.S.C.A. § 101(22) (a) and (c) ACDUTRA means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the Army National Guard or Air National Guard of any State. A service connection claim based on a period of ACDUTRA must be based on a showing that a disease or injury was incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101(2)-(24); Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998). For any period of INACDUTRA, there must be a showing of an injury incurred in or aggravated in line of duty. Id. The VA General Counsel has held that it was the intention of Congress when it defined active service in 38 U.S.C.A. § 101(24) to exclude a period of INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90, 56 Fed. Reg. 45,712 (1990). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA or an injury that was incurred in or aggravated by a period of INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of the ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. Pursuant to applicable law, disability compensation may also be recognized for "travel status-training duty," whereby the claimant has become disabled or died from an injury or covered disease incurred while proceeding directly to or returning directly from ACDUTRA or INACDUTRA. In this instance, VA will determine whether such individual was so authorized or required to perform such duty, and whether the individual was disabled or died from an injury or covered disease so incurred. In making such determinations, there shall be taken into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for, or on which the individual ceased to perform, such duty; the method of travel performed; the itinerary; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this paragraph, the burden of proof shall be on the claimant. 38 C.F.R. § 3.6(e). Presumptive periods do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). To the extent that a claim has been presented based on exposure to asbestos during service, 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, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The date of this amended material is December 13, 2005. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines "asbestos" as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture 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. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The appellant's service records include a "report of separation and record of service" (NGB Form 22), which states that he had 32 years of service, and that his primary specialty number included "fire protection supt." The appellant's service treatment reports show that in October 1977, he was noted to complain of headaches, and to have blood pressure of 160/100. Service treatment reports include a number of examination reports, dated between 1955 and 1990, which show that the appellant was first noted to have hypertension in August 1978, at which time he was noted to use diazide for mild essential hypertension. In a number of associated "reports of medical history" the Veteran indicated that he did not have shoulder or knee symptoms. The two most recent examination reports, dated in November 1986 and November 1990, do not note hypertension, and show that his blood pressure was 126/82 (November 1986) and 150/90 (November 1990). In the associated "reports of medical history" to the November 1986 and November 1990 examination reports, the appellant indicated that he had a history of high or low blood pressure, and he denied having shoulder or knee symptoms. None of the service examination reports show that the appellant was found to have a shoulder, knee, or respiratory disorder. In this regard, a November 1986 pulmonary function test notes a history of smoking one PPD (pack per day), quit 15 years before. Several notations, dated between 1977 and 1980, note that annual toxic solvents examinations showed that no evidence of toxicity was found by history or upon examination. As for the non-service medical evidence, it consists of VA and non-VA reports, dated between 2002 and 2013. This evidence shows that the Veteran was repeatedly noted to have BA (presumably bronchial asthma) beginning in 2003. It includes a number of PFTs which note a history of smoking, 11 pack/years, quit in 1963. A September 2007 chest X-ray was negative. Reports, dated beginning in 2010, show that the Veteran was treated for a right shoulder disorder, and that he was noted to have hypertension. In October 2011, the Veteran was treated for left shoulder symptoms, and was diagnosed with RCT (rotator cuff tear). The report notes, "Never had treatment." The Board finds that the claims must be denied. With regard to the claim for a bilateral knee disability, there is no medical evidence to show that the appellant currently has a knee disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). For all claims, there are no line of duty reports of record. In addition, there is no medical evidence to show that the appellant sustained any relevant injury during service, let alone during any of the verified periods of ACDUTRA. Although the appellant has asserted, in essence, that he injured his shoulders while traveling at some point between 1990 and 1992, during a qualifying period of service, no such injury, or qualifying service, is shown. To the extent that the Veteran has asserted that he has a respiratory disability due to exposure to asbestos, even assuming such exposure, there is no medical evidence linking his asthma to exposure to asbestos. Finally, although the appellant was noted to have hypertension during his service, there is no evidence to show that he became disabled as a result of hypertension that was incurred or aggravated in the line of duty during the period of ACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan. In summary, there is no evidence to show that a disease or injury involving the appellant's shoulders, knees, respiratory system, or hypertension, was incurred or aggravated in the line of duty. 38 U.S.C.A. § 101. Accordingly, the claims must be denied. With regard to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issues on appeal are based on the contention that a shoulder disability, a knee disability, hypertension, and a respiratory disability, are related to a qualifying period of service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the foregoing, the Board finds that the service records, and the medical evidence, outweigh the appellant's contentions to the effect that he has a shoulder disability, a knee disability, hypertension, and a respiratory disability, due to his service. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Duties to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in January 2011. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and non-service records relevant to the issues on appeal have been obtained and are associated with the appellant's claims files. The RO has obtained the appellant's VA and non-VA medical records. The appellant has not been afforded VA examinations, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. With regard to the claims for shoulder and knee disabilities, and a respiratory disability, the appellant's service treatment reports do not show any relevant complaints, treatment, or findings, providing evidence against the claims. These reports note the existence of hypertension, however, the appellant is not shown to have active duty service, and there is no evidence to show that the appellant became disabled as a result of hypertension that was incurred or aggravated in the line of duty during the period of ACDUTRA. Therefore, the second McLendon criterion is not satisfied. With regard to the third McLendon criterion, the earliest medical evidence of hypertension is dated no earlier than 1978, the earliest medical evidence of asthma is dated no earlier than 2003, and the earliest evidence of a shoulder disability is dated no earlier than 2010. There is no competent or credible lay or medical evidence to show that the appellant has a knee disorder. There is also no competent or credible lay or medical evidence to show that any of the claimed disabilities are related to any period of ACDUTRA or INADCUTRA service, and there are no relevant line of duty reports of record. Therefore, an examination and an etiological opinion need not be obtained for any of the claims. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a shoulder disability, a knee disability, hypertension, and a respiratory disability, is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs