Citation Nr: 1337118	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  07-10 035	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for asbestosis.

2.  Entitlement to service connection for left elbow arthritis. 

3.  Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Rutkin, Joshua M.


INTRODUCTION

The Veteran served on active duty from June 1966 to April 1970.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

As support for his claims, the Veteran and his spouse testified at a videoconference hearing in June 2012 before the undersigned Veterans Law Judge of the Board.

The Board subsequently remanded these claims in September 2012 for further development.  Based on that additional development, which continued to raise questions as to whether the Veteran has a valid diagnosis of asbestosis and, if so, whether it is the result of exposure to asbestos during his service, the Board referred the asbestosis claim in July 2013 for an expert medical opinion.  See VHA Directive 2010-044 (September 29, 2010); 38 U.S.C.A. §§ 5103A, 7109 (West 2002); 38 C.F.R. § 20.901 (2013).  The opinion was provided in August 2013 by a VA pulmonologist.  In August 2013, a copy of the medical opinion was provided to the Veteran and his representative, and they were offered the opportunity to present additional evidence or argument in response, in accordance with 38 C.F.R. § 20.903 (2013); see also Thurber v. Brown, 5 Vet. App. 119 (1993).  The Veteran acknowledged receipt of the medical opinion in an August 2013 statement, but indicated that he had no further argument or evidence to submit.  Accordingly, the Board may proceed with appellate review of this claim.

The Veteran had submitted, however, other additional evidence since the certification of his appeal to the Board.  And in April and August 2013 statements, he had waived his right to have the RO initially consider this additional evidence as the Agency of Original Jurisdiction (AOJ), preferring instead that the Board do so in the first instance.  See 38 C.F.R. § 20.1304(c) (2013) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless the appellant waives this procedural right).  

The claim of entitlement to service connection for a bilateral hearing loss disability requires still further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board, instead, is going ahead and deciding the claims for asbestosis and left elbow arthritis.


FINDINGS OF FACT

1.  The Veteran has not had asbestosis since the filing of his claim for this condition, so at no point during the pendency of this claim, and even assuming a valid diagnosis of asbestosis it is not related to asbestos exposure during his service.

2.  His left elbow arthritis did not manifest during his service or to a compensable degree within one year of his separation from service, and is not otherwise shown to be caused or permanently exacerbated by a disease, an injury, or an event during his service. 


CONCLUSIONS OF LAW

1.  It is not shown he has asbestosis, much less because of disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  Also, arthritis of his left elbow was not incurred during or aggravated by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Procedural Due Process

A.  The Duties to Notify and Assist

VA's duties to notify and assist under The Veterans Claims Assistance Act of 2000 (VCAA), have been satisfied.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Letters dated in August 2003, February 2006, and September 2012 notified the Veteran of the elements of service connection, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claims.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b).  These letters were followed by initial adjudication of the Veteran's claims in a May 2004 rating decision, or by readjudication in a January 2007 statement of the case (SOC) and several supplemental statements of the case (SSOC's), including most recently in April 2013.   See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  Therefore, the duty to notify is satisfied. 

Concerning the duty to assist, the Veteran's service treatment and service personnel records, VA treatment records, and Social Security Administration (SSA) records have been associated with the claims file.  Private treatment records identified by the Veteran have also been added to the file, to the extent possible.  The Veteran has not identified any other records or evidence he wished to submit or have VA obtain.  Thus, the duty to obtain relevant records is satisfied.  See 38 C.F.R. § 3.159(c).  


With regards to the Veteran's asbestosis claim, a VA examination and opinion were provided in March 2013.  A VA pulmonologist's opinion was also obtained in August 2013 to address conflicting evidence.  The VA opinions are based on the clinical findings and the Veteran's medical history, and are supported by thorough explanations that enable the Board to make a fully informed decision on this claim.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  Accordingly, the duty to provide a VA examination or opinion is satisfied.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

A VA examination or opinion has not been provided with regard to the Veteran's left elbow claim.  However, there is no credible evidence that the Veteran's left elbow arthritis manifested until decades after service separation, or that he had any left elbow symptoms until that time.  Moreover, there is no evidence that the Veteran injured his elbow during active service other than his statements in support of this claim, and he has not specified the nature or severity of the injury.  Notably, his upper extremities were clinically evaluated as normal at separation, and the Veteran denied left elbow problems at this time, although he endorsed a number of other medical conditions.  This evidence, in conjunction with the fact that the Veteran reported only a two-year history of left elbow symptoms in a July 2002 private treatment record, strongly indicates that any left injury during service had resolved before separation and is unrelated to his current pathology.  Thus, there is no indication that his left elbow arthritis may be related service, even assuming that he injured his elbow at that time.  While competent evidence is not required, there must still be some credible evidence supporting a possible link to service.  See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a claimant's "conclusory generalized statement that his service illness caused his present medical problems" was not sufficient to entitle him to a VA examination).  Thus, an examination is not warranted.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in pertinent part, that there must be an indication that the current disability may be related to service in order to trigger VA's duty to provide an examination or opinion). 

Accordingly, as there is no indication of prejudicial error with regard to VA's duties to notify and assist, the Board will proceed with appellate review.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

B.  Compliance with Board's Remand Directives

The Board remanded these claims in September 2012 with instructions to send a VCAA notice letter with regard to the left elbow claim, to obtain outstanding VA treatment records dating from at least November 2011, and to obtain a VA examination and opinion regarding the Veteran's asbestosis claim.  The Board finds there has been substantial compliance with these directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  

C.  Compliance with Hearing Officer's Duties

The Veteran testified at a June 2012 hearing before the undersigned.  At the hearing, the undersigned explained the elements of service connection, and that the evidence needed to show a relationship to service.  See Hearing Transcript, pages 8, 12, and 21.  The undersigned also suggested the submission of additional evidence when warranted, such as a favorable nexus opinion from the Veteran's private treating physician with regard to the Veteran's left elbow disorder, and the record was held open for 30 days for this purpose.  See id., pages 23-24.  Finally, the Veteran had an opportunity to provide pertinent testimony as to why he believed his current disorders were related to service, facilitated by questioning from his representative and the undersigned.  Thus, the hearing officer's duties have been satisfied.  See 38 C.F.R. § 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  


Any deficiencies under § 3.103(c)(2) were harmless, as VA has otherwise developed these claims as warranted, to include the provision of a VA examination and opinions regarding the Veteran's asbestosis claim.  See Bryant, 23 Vet. App. at 498-99 (holding that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c)).  Moreover, the record appears to be complete in every respect with regard to the Veteran's left elbow disorder, as private treatment records documenting his left elbow disorder since 2002, when he first sought treatment for it, are in the file, and there is no indication that any evidence exists that may have been overlooked.  As already noted, the undersigned also suggested to the Veteran that he provide a nexus opinion from his treating physician if, as the Veteran initially indicated, the physician in fact believed that the left elbow arthritis was related to service.  Thus, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled.  Id. at 498-99.  Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2).  See id.; see also Sanders, 556 U.S. at 407, 410.

II.  Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a).  

For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), including arthritis, the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," but finding that this subsection only applies to the chronic diseases set forth in § 3.309(a)).  Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service.  If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden.  Walker, 708 F.3d at 1338-39 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"); C.F.R. § 3.303(b).  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period."  Walker, 708 F.3d at 1338-39.

In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for arthritis, as a chronic disease, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  This presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

A.  Asbestosis

The Veteran asserts that he was exposed to asbestos during his service in the Air Force, which subsequently developed into a respiratory condition post service.  Specifically, he asserts that the walls of the hangars where he worked were lined with asbestos.

His service treatment records (STRs) do not reflect a diagnosis of or treatment for a respiratory condition of any sort, but there is an accepted latency allowing for the later manifestation of diseases attributable to asbestos exposure.

There are no specific statutes or regulations pertaining to service-connection claims involving asbestos exposure.  However, the United States Court of Appeals for Veterans Claims (Court) has indicated that claims involving asbestos exposure should be analyzed under the appropriate administrative guidelines.  See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993).  VA has set forth administrative guidelines for compensation claims based on asbestos exposure.  See M21-1, VBA Adjudication Procedural Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 (December 13, 2005).

The manual provides that adjudication of a service-connection claim for disability resulting from asbestos exposure should include determinations as to whether:  1) service records demonstrate the Veteran was exposed to asbestos during service; 2) development has been completed sufficient to determine whether he was additionally exposed to asbestos either before or after service; and 3) a relationship exists between the asbestos exposure during his service and the claimed disease, keeping in mind latency and exposure factors.  M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9, Subsection (H); see also Ashford v. Brown, 10 Vet. App. 120, 124 (1997). 

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.  M21-1 MR, 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.  The Manual also lists some of the major occupations involving exposure to asbestos including 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 foreign 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 be inhaled and swallowed.  Id., at Subsection (b).  Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos related diseases/abnormalities:  Fibrosis (the most commonly occurring of which interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusion 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 guidelines provide that the latency period for asbestos related diseases varies from 10 to 45 years or more between first exposure and development of disease.  VA Manual, paragraph 9(d).  The extent and duration of exposure to asbestos is not a factor for consideration.  Id., at Subsection (D).  Thus, an asbestos-related disease can develop from brief exposure to asbestos or as a bystander.

The guidelines further provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease.  The VA Manual, Paragraph 9(e).  Rating specialists must develop any evidence of asbestos exposure before, during, and after service.

The Board now turns to the relevant facts and circumstances of this particular case.  A July 2002 private X-ray evaluation reflects that a May 2002 X-ray study was interpreted as showing pleural and parenchymal abnormalities "consistent with pulmonary asbestosis, assuming a sufficient environmental exposure history and an adequate latent period."  In a November 2002 private occupational lung disease evaluation, the Veteran reported asbestos exposure in his civilian job at an oil refinery from 1970 to 1983, where he had daily exposure from insulated pipes.  He also reported two weeks of constant direct exposure to block insulation, raw, asbestos, and pipe and boiler insulation without respiratory protection when working as an insulator's helper.  He stated that the asbestos insulation was stripped off daily from the pipes with no barricades in place for protection until the 1980's.  It was noted that prior to working at the oil refinery, he had served in the Air Force, but there was no mention of asbestos exposure at this time. 

A November 2002 private treatment record from a pulmonologist indicates the Veteran had experienced slowly increasing dyspnea for the past ten years, so since 1992 or thereabouts.  A chest X-ray revealed a diffuse interstitial pattern consisting of small irregular linear opacities of size and shapes S/T, ILO profusion 1/1 in the lower lung zones bilaterally.  Examination of the pleural surfaces revealed circumscribed pleural thickening.  There were no pleural calcifications, parenchymal infiltrates, nodules, masses, or interval change compared to an earlier film dated May 29, 2002.  The Veteran was diagnosed with pulmonary asbestosis based on the interstitial changes on the chest X-ray and the exposure history.  The private physician stated, in part, that due to the long latency period between exposure to asbestos and the onset of clinically significant asbestos-related disease, the Veteran was at increased risk for the development of bronchogenic carcinoma, mesothelioma, and certain other cancers, as well as for deterioration in pulmonary function.

In February 2003, however, the Veteran was assessed with "no evidence of pleural or interstitial lung disease radiographically."

A May 2003 private treatment record lists, among other diagnoses, a diagnosis of asbestosis that was stable.  However, this record simply consists of a review of the Veteran's medical history as he was transferring care to a new physician, and does not indicate that asbestosis was actually found at this time on examination, or that imaging studies were conducted.  Thus, this diagnosis appears to be simply carried forward from prior records. 

Conversely, a March 2005 chest X-ray noted no active pulmonary disease.  


Although the VA treatment records reflect the Veteran's history of asbestosis as diagnosed by his private treating physician, they show that the Veteran was found not to have asbestosis based on the clinical findings.  Specifically, a March 2007 VA chest x-ray report revealed minimal pleural thickening with no infiltration or pleural calcification.  A diagnosis of asbestosis was not provided, although the Veteran's reported history of asbestosis was noted.  Moreover, a March 2009 VA treatment record reflects that there was no radiographic evidence of asbestosis, and that a high resolution computerized tomography (HRCT) scan showed no evidence of asbestosis or significant interstitial lung disease.  

December 2007 Social Security Administration (SSA) findings noted mild chronic pulmonary disease, but make no mention of asbestosis. 

In the December 2012 Disability Benefits Questionnaire (DBQ), the VA examiner concluded that there was no clinical evidence of a current respiratory disorder on examination, including based on chest x-rays.  The examiner explained that the chest X-ray had revealed his lungs were free of active disease.  There was no mediastinal or hilar abnormality.  The VA examiner therefore concluded that it was less likely than not (less than 50 percent probability) the Veteran had disability incurred in or caused by the claimed injury, event, or illness in service - referring to the claim of exposure to asbestos.  His rationale was premised on the fact that although the July 2002 chest X-ray had been interpreted as showing asbestosis, a March 2005 chest X-ray had shown "both lungs [were] clear and the C-P angles [were] sharp, no active pulmonary disease."  And, according to the Computerized Patient Record System (CPRS), the chest X-rays on January 18, 2006, May 9, 2007, February 27, 2008, and December 3, 2012 showed that a presence of any active pulmonary disease was not suspected.  He pointed out the computerized tomography (CT) scan was highly sensitive for diagnosing asbestos exposure, and that the March 2009 VA CT scan discussed above (the examiner erroneously provided the date of the scan as December 2008, but was clearly referring to the March 2009 VA CT scan) showed no pleural plaque or pleural calcification with clear lungs.  He thus concluded the Veteran did not have a respiratory condition, much less one related or attributable to his military service, especially to asbestos exposure.

The VA examiner also found that even if the Veteran had asbestosis, it was due to his exposure while working in the oil refinery in his civilian job, as reflected in the November 2002 private treatment record. 

The Veteran submitted a May 2013 statement asserting that he had asbestosis.  He stated that while asbestosis may be detected by chest x-ray, a normal chest 
X-ray study did not rule out the presence of asbestosis, and in fact may support the diagnosis, as lung function impairment with a normal chest x-ray indicated that the impairment was due to the asbestos rather than other pathology more readily detectable via x-ray.  He cited to medical treatises in support of these statements, and also submitted a copy of the study "Toxicological Profile for Asbestos," by the U.S. Department of Health and Human Services, which he referenced as authority that chest x-rays cannot detect asbestos fibers in the lungs. 

In the August 2013 VA pulmonologist's opinion, the VA physician found based on a review of the evidence of record, including the above-cited evidence, that there was no evidence of pulmonary asbestosis, which he stated was an interstitial pulmonary disease with fibrosis of the lung parenchyma.  He also found no evidence of any other respiratory disease that may be related to asbestos exposure.  The physician noted that the Veteran's pulmonary function studies on multiple occasions have been entirely normal, while repeated radiographic examinations of the chest have shown clear lung fields with no pleural abnormalities nor signs of possible neoplasia.  With regard to the diagnosis of asbestosis in 2002, the pulmonologist noted that this diagnosis was based on interpretation of posterioranterior (PA) and lateral chest x-rays using the classification of pneumoconiosis according to the ILO (1980) criteria.  Small irregular linear opacities within the lung parenchyma of the size and shape of S/T, profusion 1/1, which are minimal abnormalities, had been interpreted as evidence of pulmonary asbestosis.  The VA physician also noted that minimal pleural thickening without calcification along the lateral thoracic walls were interpreted as pleural evidence of significant asbestos exposure.  The physician explained that in recent years this method of interpreting asbestos-related lung disorders had been abandoned in favor of advanced chest radiography including computerized tomography, and that all subsequent chest radiographic examinations had been within normal limits.  Finally, and significantly, the pulmonologist stated that asbestos insulation in airport hangar walls was not a significant source of environmental exposure to asbestos. 

The preponderance of the evidence shows that the Veteran has not had asbestosis during the pendency of this claim, notwithstanding the 2002 diagnosis.  As explained in the August 2013 pulmonologist's opinion, the method of interpretation of the 2002 chest x-rays at the time has "been abandoned," and he did not find that these same x-ray studies showed asbestosis or an asbestos-related disease.  He also noted that subsequent chest x-rays likewise did not show asbestosis or asbestosis-related disease.  While the Veteran asserts that chest x-rays do not necessarily detect asbestosis or the presence of asbestos fibers in the lungs, the March 2009 VA high resolution CT scan was also negative for asbestosis, as noted by the December 2012 VA examiner.  Indeed, both the August 2013 VA pulmonologist and the December 2012 VA examiner stated that CT scans are a better imaging tool for detecting asbestosis, and thus the negative March 2009 CT scan further weighs against the presence of asbestosis in the Veteran's case.  

Thus, the findings of the August 2013 VA pulmonologist and the December 2012 VA examiner outweigh the diagnosis of asbestosis in 2002, as they are supported by a much more thorough explanation informed, in part, by numerous subsequent imaging studies, including a CT scan, confirming that the Veteran does not have asbestosis.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  By contrast, the physician who originally diagnosed asbestosis did not have the benefit of these subsequent studies to assess whether his interpretation held true, and based his finding using outdated diagnostic methods, according to the August 2013 VA pulmonologist.  


The VA opinions also outweigh the Veteran's statements, as he is a lay person in the field of medicine absent evidence that he has an appropriate medical background, and the presence of asbestosis is a determination that is too complex to be made based on lay observation alone, as indicated by the August 2013 VA pulmonologist.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994).  They also outweigh the treatise evidence submitted by the Veteran.  This evidence is not specific to the facts of his case, and merely reviews methodology for diagnosing asbestosis.  See Sacks v. West, 11 Vet. App. 314, 317 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)).  By contrast, the opinions of the August 2013 VA pulmonologist and October 2012 VA examiner are specific to the Veteran's case, to include his medical history and the clinical findings of record.  

Accordingly, the preponderance of the evidence shows that the Veteran has not had asbestosis or an asbestos-related lung disorder during the pendency of this claim, notwithstanding the 2002 diagnosis. 

Even assuming that the Veteran had asbestosis or an asbestos-related lung disorder, the competent evidence does not show that it is related to active service.  The August 2013 VA pulmonologist and the December 2012 VA examiner found that asbestos present in the walls of a hangar would not be a significant source of exposure.  The Veteran has not submitted any competent evidence showing otherwise.  Moreover, as a layperson, he does not have the medical or scientific expertise to render a competent opinion as to whether he had asbestos exposure during service merely because it was present in the walls of a hangar.  See id.  The findings of the August 2013 VA pulmonologist and the October 2012 VA examiner outweigh the Veteran's statements on this issue.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question).  


The evidence rather shows that any current asbestosis or asbestos-related lung disorder would be due to civilian asbestos exposure.  Specifically, the November 2002 private occupational lung disease evaluation report reflects findings of significant asbestos exposure in the Veteran's civilian job, and the October 2012 VA examiner found that any diagnosed asbestosis or asbestos-related lung disorder would be due to such exposure rather than to service.  Thus, the preponderance of the evidence weighs against a relationship between any current asbestosis or asbestosis-related disease and the Veteran's period of service.

There is no evidence that any other lung or respiratory disorder manifested during service or until a number of years later, and the Veteran has not argued that he has any such disorders related to service apart from asbestosis or an asbestos-related disease. 

Accordingly, because the preponderance of the evidence shows that the Veteran does not have asbestosis or an asbestos-related lung or respiratory disorder, and that even if he had such a disorder, it is not related to service but rather to his post-service exposure in his civilian occupation, the criteria for service connection have not been satisfied.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1166-67.

Consequently, the benefit-of-the-doubt rule does not apply, and service connection for asbestosis is denied.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

B.  Left Elbow Arthritis

Service connection for the Veteran's left elbow disorder, which the private treatment records reflect has been diagnosed as arthritis, is not warranted.  The Veteran stated at the June 2012 Board hearing that he injured his elbow in a fall injury during active service.  He further testified that he did not notice that something was wrong with his elbow until five or six years after service separation.  However, in a May 2013 statement, the Veteran indicated that he experienced "discomfort" of the elbow during subsequent years which progressively worsened into pain.  

While the Veteran is competent to report that he injured his elbow in service, there is no credible evidence of ongoing elbow symptoms since the injury occurred.  The service treatment records appear to be complete, and make no mention of a left elbow injury or left elbow symptoms.  Indeed, the Veteran has never stated that he was treated for the injury or that it was severe.  Moreover, the Veteran's upper extremities were clinically evaluated as normal at separation.  Significantly, the Veteran denied a painful or "trick" elbow in the report of medical history at separation, although he endorsed a history of a number of other medical conditions.  It is implausible that the Veteran would have denied elbow symptomatology or impairment at this time had it been present, when he reported other medical conditions.  

The post-service treatment records also weigh against the credibility of the Veteran's statements.  The earliest documentation of left elbow problems is a July 2002 private treatment record, at which time the Veteran reported a two-year history of episodic catching or locking of the elbow associated with giving way.  There is no mention in this or subsequent treatment records pertaining to the elbow of an earlier history of left elbow symptoms or treatment, or of a prior injury.  The Veteran has not stated that he was treated prior to this time for his elbow.  In his August 2003 claim, the Veteran indicated that he was first treated for his left elbow problems in 2002. Thus, because the Veteran's statements in support of this claim conflict with more probative evidence in the form of contemporaneous treatment records showing that his left elbow symptoms began around 2000, the Board finds that they are not credible with regard to the history of his left elbow symptoms.  See Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding contemporaneous evidence has greater probative value than history as reported by the claimant). 


The Veteran's statements are also in conflict with each other.  In his August 2003 claim, he stated that his left elbow symptoms began three to five years earlier, which would be about three decades after he separated from service in April 1970.  This statement conflicts with his later suggestion in the May 2013 statement that he had experienced left elbow discomfort ever since service, which in turn conflicts with his statement at the Board hearing that he did not notice left elbow problems until five or six years after service.  Moreover, when he initially described his in-service fall injury in an August 2003 statement, he made no mention of his elbow.  He did not state that his elbow had also been injured in the fall until the June 2012 Board hearing.  Thus, the fact that the Veteran's statements conflict with each other as well as with the contemporaneous treatment records further weighs against their credibility.  Madden, 125 F.3d at 1480 (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect.").   

The statements from the Veteran's wife also lack credibility, as they conflict with the contemporaneous service treatment records and post-service treatment records, and with the Veteran's own statements.  Moreover, her understandable bias in helping him support a claim for benefits is an additional basis for finding her statements not credible in light of the other conflicting evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). 

The Veteran initially indicated at the June 2012 Board hearing that his private treating physician had opined that his current left elbow arthritis is related to service.  However, when further questioned as to whether his doctor had expressed such an opinion, the Veteran replied "no," and stated that his doctor merely inquired into whether there was an earlier injury.  Cf. Hearing Transcript, p. 22.  Thus, the Board does not find it credible that the Veteran's physician believed that the left elbow arthritis is related to service.  As noted above, he was provided an opportunity to obtain such an opinion, but has not submitted one.  

In summary, there is no credible evidence to support a possible relationship between an alleged left elbow injury that occurred during active service and the earliest evidence of the Veteran's current left elbow arthritis three decades after separation.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder).

Because the Veteran is a lay person in the field of medicine, his opinion that his current left elbow arthritis is related to an alleged left elbow injury that occurred decades earlier, with no credible evidence of symptoms or pathology in the interim, is too complex to be made based on lay observation alone.  See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309.  Indeed, as the separation examination report and medical history show that the Veteran's left elbow was normal at discharge, there is no indication that such a relationship may exist.

Accordingly, the nexus element has not been satisfied, and thus service connection is not warranted under § 3.303(a).  See Walker, 708 F.3d at 1338-1339; Shedden, 381 F.3d at 1166-67.  Likewise, as the preponderance of the evidence shows that the Veteran's arthritis did not manifest in service or until around three decades later, service connection is also not warranted under the relaxed evidentiary provisions of § 3.303(b) and § 3.307.  See Walker, 708 F.3d at 1338-1339. 

Thus, the benefit-of-the-doubt rule does not apply, and service connection for left elbow arthritis must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER

The claim of entitlement to service connection for asbestosis is denied. 

The claim of entitlement to service connection for left elbow arthritis also is denied.


REMAND

The Board previously remanded the Veteran's hearing loss claim in September 2012 for a supplemental opinion.  The basis for that remand was that a February 2009 VA audiologist's opinion was not supported by any explanation apart from a recitation of data, without any comment as to why the data supported the conclusion reached.  In the March 2013 addendum obtained on remand, the audiologist simply stated that the claims file was reviewed and there was "no change in the report."  The examiner again did not provide any explanation or commentary.  So even the addendum is not responsive to the Board's remand directive, which required an explanation for the initial opinion.  

Accordingly, this remaining claim is REMANDED for the following actions:

1.  Obtain another supplemental opinion from a VA audiologist concerning whether the Veteran's current hearing loss disability is related to noise exposure during his service from machine guns and mortar explosions in Vietnam and from aircraft noise near the flight line.  The claims file must be made available to the audiologist and the audiologist must indicate that it has been reviewed.  The Veteran need not be scheduled for another examination unless deemed necessary for the opinion.
A. The audiologist should assume in-service hazardous noise exposure.
B. The audiologist should comment on any puretone threshold shifts during service, if found to be clinically significant. 
C. The audiologist must convert the puretone thresholds in the July 1966 enlistment examination report from ASA to ISO units, as was done in the December 2008 VA examination report.
D. Most importantly, the audiologist must provide an explanation for the opinion stated.  It is not sufficient merely say the claims file was reviewed or even to cite to pertinent evidence in it without also explaining why the evidence supports or does not support a relationship to service.

2.  Review the VA audiologist's supplemental opinion to ensure, unlike previously, an adequate explanation has been provided.  If not, return the opinion for further discussion in accordance with the Board's remand directives.  38 C.F.R. § 4.2.

3.  Then readjudicate this remaining claim for bilateral hearing loss in light of this and all other additional evidence.  If this claim continues to be denied, send the appellant and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs