Citation Nr: 1343467 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-02 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for disability manifested by granulomas of the lungs, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who served on active duty (AD) from March 1972 to July 1972 and from January 2005 to July 2006. He also had periods of National Guard service from December 1971 to February 2011, presumably with active duty training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In August 2008, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO. This appeal was before the Board in November 2011, at which time the Board denied initial ratings for service connected left leg muscle injury. The Board remanded the issues regarding service connection for tinnitus and granuloma of the lung. During the remand period, in November 2012, the Appeals Management Center (AMC) granted service connection for tinnitus. Since the Veteran did not, in response, appeal either the rating or effective date assigned for that disability it is no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDING OF FACT There is no competent and credible evidence of record linking a respiratory disorder to include granulomas of the lungs or an asbestos-related respiratory disorder to the Veteran's military service. CONCLUSION OF LAW The Veteran does not have asbestosis or granulomas of the lungs due to disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the current appeal, a pre-decisional letter dated in August 2006 complied with VA's duty to notify the Veteran of what he needed to substantiate his claim for service connection for disability manifested by granuloma of the lung. Specifically, this letter apprised the Veteran of what the evidence needed to show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from him, what evidence VA was responsible for getting, and what information VA would assist in obtaining on his behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, adequate notice has been provided to the Veteran that complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist a claimant in the development of his/her claim. This duty includes assisting him/her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO and AMC have obtained all records that he has identified as possibly pertinent, including his service treatment records (STRs) and post-service VA and private medical evaluation and treatment records. The Board also, remanded the claim to obtain medical nexus opinion concerning the determinative issue of the etiology of his claimed disability and specifically insofar as the likelihood it is related to his military service. The VA compensation examiner designated to provide the medical nexus opinion responded in a November 2011 examination report with findings and opinions that are responsive to this determinative issue of causation so, there was compliance with this remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As noted above, in August 2008, the Veteran testified at a personal hearing before a DRO at the RO. Relevant to these proceedings, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the [DRO] who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the DRO did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claim, nor suggest the submission of evidence that may have overlooked. However, as detailed above the Board has already determined that the Veteran received adequate notification which apprised him of the elements necessary to substantiate his claim, and which requested he identify any relevant evidence not of record. Moreover, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the appellate claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of this hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. Thus, the duty to assist the Veteran with this claim also has been satisfied. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. II. Statutes and Regulations Governing Claims for Service Connection The Veteran contends that his lung granulomas are related to exposure to asbestos as well as toxins he experienced during his periods of service. Service connection is granted for disability resulting from a disease or an injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Notwithstanding the above, service connection may be granted for disability shown after service, when the evidence, including that pertinent to service, shows the disability was incurred in service or if pre-existed service was aggravated therein. 38 C.F.R. 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). If the condition was not directly incurred in service, then it must be determined whether it pre-existed the Veteran's service and, if so, whether it was aggravated by his service beyond its natural progression. But different standards of proof apply depending on whether the condition in question was "noted" when entering service; meaning detected at the time of his enlistment examination, and also governs who bears this burden of proof, him or VA. See VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A review of the Veteran's personnel records shows that the Appellant had periods of National Guard service from December 1971 to February 2011. Active military service includes disability resulting from injury or disease incurred in or aggravated during AD and ACDUTRA and disability resulting from injury (but not disease) incurred in or aggravated during INACDUTRA. 38 U.S.C.A. §§ 101(21)-(24), 106; 38 C.F.R. § 3.6(a), (d). There are no presumptions of soundness and aggravation concerning claims premised on ACDUTRA and INACDUTRA service. See Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. So to the extent the Veteran is alleging that his pulmonary granulomas are a result of injury or disease incurred or aggravated during his time in the National Guard, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., his periods of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for the Veteran to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during his INACDUTRA. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). There is no specific statutory guidance with regard to asbestos-related claims; nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos-related disease. VAOPGCPREC 04-00 (April 13, 2000). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. III. Analysis In the present case, the STRs from his first period of AD service do not reflect complaints, findings, or diagnoses regarding a respiratory disorder. The reports of his December 1971 enlistment and July 1972 release from active duty (REFRAD) examinations show that his respiratory system was within normal limits. The claims file contains May 1998 and January 1999 private radiology reports of the lungs. The May 1998 report noted a few scattered nodular densities consistent with old granulomatous disease. This report also noted that there were no significant changes from an earlier report. There was no active disease. The January 1999 report noted that the chest X-ray was clear with no evidence of TB. In handwriting, it was also noted that he evidentially had prophylactic treatment with INH (isoniazid) for 6 months. In May 2006, during his second period of service, the Veteran underwent out processing examination on return from Kuwait. Radiological studies revealed lesion (scar) tissue and a nodule of the left upper lung. At that time, the Veteran reported a history of a positive PPD test and treatment with INH for six months in 1999. On examination, he did not have chest pain, difficulty breathing, or any other pulmonary abnormality. He was cleared with no restrictions. A chest x-ray performed during the Veteran's January 2007 general VA examination revealed scattered granulomas. .In light of the Veteran's medical and service history, to include reports of exposure to environmental toxins, as well as tobacco use, the Board remanded the case to obtain an opinion regarding the relationship, if any, between the lung granulomas and service. In a report of November 2011 VA examination, the nurse practitioner noted the Veteran's medical history as outlined above which included a 15 year history of smoking three packs of cigarettes per day. The examiner noted that a current X-ray revealed scattered granuloma (without change). She also reported background information that included a definition of granuloma: Small area of inflammation in tissue due to injury, such as from an infection...they typically cause no signs or symptoms and are found incidentally on X-ray done for some other reason. Although granulomas are noncancerous (benign), they may resemble cancer on x-ray if they aren't obviously calcified. The most common cause of lung granulomas in the United States is histoplasmosis, a fungal infection that primarily affects the lungs....Most granulomas don't require treatment. In giving her opinion, she acknowledged that the exact cause of the granulomas involving his lungs could not be definitively determined. She reiterated that the exact cause of granuloma is not known but is most often due to an infection or inflammatory process. For example in the Mid-West, histoplasmosis (fungal disease) is a common source. She went on to note that the individual may not know that they have this condition. She pointed out that the Veteran had granulomatous disease at the time of the first X-ray in 1998 and repeated in 1999. The clinician noted that the Veteran reported a history of exposure to a relative who had active TB and thereafter receiving prophylactic treatment in 1998, which was all prior to his entrance into service. In explaining the various reported pulmonary findings; she noted that the nodule that was suspected in 2006 would be expected to be the granulomatous disease, but was read by a radiologist who did not have a comparison X-ray. Also, the reported scar tissue was consistent with his pre-existing history of granulomatous. She concluded that the pulmonary granulomas were not related to his deployment, noting that they were present on entrance into service and were at baseline in 2005-2006. She further noted that they did not undergo significant change. She concluded that it was less likely than not the claimed disability was incurred or aggravated by the claimed in-service injury (exposure to chemicals and toxins). More importantly, she added that the Veteran's pulmonary condition was asymptomatic and benign. She also stated that the Veteran has no known lung pathology. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (the absence of proof of a present disability there can be no valid claim). A disability for VA compensation purposes refers to an impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See e.g., Allen v. Brown, 7 Vet. App. 439, 448 (1995). At the very least, the evidence must show that, at some point during the appeal period the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Here, based on the May 1998 and January 1999 chest X-rays and the Veteran's civilian status at that time, it is evident that the Veteran had granulomas of the lungs prior to his entrance into his second period of active service. Notwithstanding evidence of granulomas prior to service, the granulomas identified on chest X-ray during and after service do not represent the presence of a disability according to the November 2011 VA examiner. Allen, supra. In addition, the evidence does not reflect any current disability manifested by granulomas of the lung. In this regard, as noted above, the granulomas have been reported as being consistent with old TB exposure. The Veteran currently does not have TB or a diagnosed granulomatous disease. While the Veteran appears to have had a positive purified protein derivative of tuberculin (PPD) test in 1998-1999, this is not a disability, only an incidental clinical finding. There is no evidence of pulmonary symptoms or underlying disability related to the granulomas in the lungs. Moreover, even if his granulomas were considered a disability, there is no competent evidence, medical or otherwise, to etiologically relate his lung granulomas to military service. First of all, two medical professionals have stated that his pulmonary abnormalities are not asbestosis or a lung disorder that is otherwise related to asbestos exposure. Secondly, the November 2011 VA nurse practitioner specifically concluded that the Veteran's pulmonary granulomas were otherwise unrelated to his military service. She noted that he entered his second period of service with pre-existing pulmonary granulomas and there was no evidence of aggravation, pointing out the absence of a baseline change. In light of the discussion above, the Board finds a lack of competent evidence of a current disability upon which to predicate a grant of service connection for disability manifested by granuloma of the lung. Brammer, supra. In so finding, the Board notes that 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 issue in this case-whether the Veteran has a current disability manifested by granuloma of the lung and whether such disability is related to his period of service, falls outside the realm of common knowledge or the expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Accordingly, based on this evidentiary record, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for disability manifested by granulomas of the lungs. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for disability manifested by granulomas of the lungs is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for disability manifested by granuloma of the lung is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs