Citation Nr: 1337088 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 07-37 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which, inter alia, denied the benefits sought on appeal. This matter was previously before the Board, most recently in June 2011, when the Board remanded for additional development. The Board finds that there has been substantial compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In addition to the issues listed above, in June 2011, the Board remanded the issue of service connection for bilateral hearing loss. While on remand, a September 2012 rating decision granted service connection for this disability. When an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must then be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection. In other words, the grant of service connection during the pendency of an appeal has extinguished the issue before the Board; service connection for bilateral hearing loss is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. The weight of the competent evidence of record is against a finding that the Veteran has a current tinnitus disability that is related to active military service. 2. The weight of the competent evidence of record is against a finding that the Veteran has COPD that is related to active military service. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. COPD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but it does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. 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 the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Correspondence dated October 2005 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In March 2006, the Veteran was provided with notice regarding the degree of disability and effective date pursuant, and the Veteran has been provided with several readjudications of his claim since the time of that notification. The Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the duty to notify has been satisfied, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). The Veteran's service medical records, personnel records, VA medical treatment records, and private treatment records have been obtained, to the extent available. The Board's June 2011 Remand instructed the agency of original jurisdiction to attempt to obtain additional records relating to the Veteran's claimed in-service exposure to asbestos. As will be discussed in further detail below, before such development occurred, the Veteran was afforded with a respiratory examination in August 2011 that concluded that the Veteran's COPD was not an asbestos-related disability. The Board finds that the lack of further development regarding the Veteran's in-service asbestos exposure is harmless to the Veteran, because, pursuant to the August 2011 examiner's conclusion, the Veteran's claim for service connection fails regardless of whether he was exposed to asbestos in service or not. There is no indication that there is any additional relevant evidence that is available and not part of the claims file. The Veteran has been provided with several audiological examinations (most recently in August 2011) and a respiratory examination. The VA examiners reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The opinions are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). With respect to the Veteran's claim of entitlement to service connection for tinnitus, in September 2013, the Veteran's representative argued that the August 2011 audiological examination was inadequate because the examiner did not provide an etiological opinion. The Board does not agree. The Veteran denied experiencing tinnitus at the time of this examination and the evidence of record otherwise contains numerous denials from the Veteran that he experienced tinnitus. Under the circumstances, with no demonstration of a current disability, an etiological opinion is both an impossibility and irrelevant. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Principles of Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2013); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish service connection for the Veteran's claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding the first Hickson element, medical evidence of a current disability, in order to prevail on the issue of service connection, there must be competent evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (finding that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (finding that in the absence of proof of a present disability, there can be no valid claim for service connection because Congress has specifically limited entitlement in this manner). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2013); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2013). A continuity of symptomatology as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither COPD nor tinnitus is listed among these chronic diseases, and service connection for these conditions may therefore not be established based on a continuity of symptomatology alone. Service Connection for Tinnitus Regarding the first Hickson element with respect to the Veteran's claimed tinnitus, the Board notes that tinnitus is "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary (31st ed. 2007). As a "subjective" ailment, the existence of tinnitus is generally determined by whether or not the veteran claims to experience it. Charles v. Principi, 16 Vet. App. 370 (2002). Turning to a review of the evidence in the instant case, the Board finds that the Veteran has both affirmed and denied experiencing tinnitus several times during the course of the appeal. The July 2006 VA examination report indicates that the Veteran repeatedly denied having tinnitus. During the October 2008 VA examination, the Veteran claimed to have tinnitus. During a January 2009 VA examination, however, the Veteran again denied having tinnitus in either ear since leaving service. Therefore, upon review of this evidence, the Board's June 2011 Remand indicated that the Veteran should be provided with an additional audiological examination to clarify whether he experienced tinnitus. The Veteran received an audiological examination in August 2011, at which time the Veteran denied experiencing any tinnitus. The Veteran also indicated at that time that his "chief concern is hearing loss." Upon review of this evidence, notwithstanding the subjective nature of tinnitus, the Board finds that the evidence does not support a finding that the Veteran currently suffers from a tinnitus disability. Since October 2008, the Veteran has denied experiencing tinnitus to VA examiners, including at the time of his most recent examination in August 2011. Accordingly, the Board finds that the first Hickson element, evidence of a current disability, is not met at any time during the appeal period, and the claim fails on this basis alone. As the Veteran has failed to satisfy the first element of Hickson, the Board finds the remaining questions of in-service disease and medical nexus to be irrelevant. Accordingly, the Board finds that the claim of entitlement to service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Service Connection for COPD The Veteran claims that his currently-diagnosed COPD is related to his military service. More specifically, the Veteran claims that he was exposed to asbestos in his barracks at Fort Leonard Wood, Missouri and Fort Benning, Georgia. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, guidelines for considering asbestos compensation claims are provided in the VA Adjudication Procedure Manual. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." Also, an opinion by the VA General Counsel discusses the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). VA must analyze the underlying claim of service connection for a respiratory disorder, due to asbestos exposure, under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, bearing in mind the latency and exposure information pertinent to the Veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Turning to the facts in the instant case, the Veteran's service personnel records have been associated with the claims file and confirm that he was stationed at Fort Leonard Wood and Fort Benning during his military service. These records are negative for information regarding whether the Veteran was exposed to asbestos from any of the barracks he lived in while stationed at these locations or whether any of his military duties involved exposure to the material. Even assuming, however, that the Veteran was exposed to asbestos during active duty service, the medical evidence does not indicate that the Veteran's COPD has developed as a result of such asbestos exposure. The Veteran underwent an examination of his COPD in August 2011. After an extensive review of the Veteran's medical records, the examiner noted that the Veteran had been diagnosed with COPD, which is an obstructive lung disease. To the contrary, asbestosis, the examiner noted, is a restrictive lung disease. Obstructive disease and restrictive disease are two distinct disease processes, and COPD does not result from asbestos exposure. Instead, the examiner noted, the Veteran's COPD is the direct result of the Veteran's long history of cigarette smoking. The examiner found no evidence of asbestos-related disease or asbestos exposure. The examiner noted that x-rays and CT-scans of the chest did not reveal any evidence of pulmonary fibrosis, pleural plaques, or ground glass appearance, all of which must be present with asbestos-related lung disease or asbestosis. The examiner saw no evidence of restrictive changes on pulmonary function testing, which again, is a feature of asbestos-related lung disease. The Board observes no other medical records associating the Veteran's COPD with any incident of his military service. To the extent that the Veteran believes that his COPD is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of COPD, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's COPD is related to his military service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's COPD and his military service, greater probative weight than the lay opinions. Accordingly, the Board finds that the claim of entitlement to service connection for COPD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for tinnitus is denied. Service connection for COPD is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs