Citation Nr: 1305559 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-04 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for any acquired respiratory disability. 2. Entitlement to service connection for a hearing loss disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from August 1965 to May 1969 and from August 1969 to August 1973. This appeal arises to the Board of Veterans' Appeals (Board) from March 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In pertinent part of a March 2009 rating decision, the RO denied service connection for a bilateral hearing loss disability. In pertinent part of a July 2010 rating decision, the RO denied service connection for "an asbestos medical condition." The Board construes that decision to be a denial of service connection for any acquired respiratory disability. In Nocember 2012, the Veteran testified before the undersigned at a personal hearing conducted via Video Conference. A transcript of this proceeding has been associated with the claims folder. FINDINGS OF FACT 1. The Veteran has provided competent evidence of exposure to asbestos during active service. 2. Spirometry in November 2011 showed a restrictive lung disease. 3. Competent evidence links asbestos exposure during active service to a current restrictive lung disease. 4. An upward shift in hearing thresholds did not occur during active service. 5. Competent medical evidence tending to attribute a current bilateral hearing loss disability with noise exposure during active military service has not been submitted. CONCLUSIONS OF LAW 1. It is at least as likely as not that a restrictive airway disease was incurred during active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A bilateral hearing loss disability was not incurred in active service. 38 U.S.C.A. §§ 1110, 1137, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his 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). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, adequate notice letters were sent to the claimant in September 2008 and April 2010, prior to the initial unfavorable rating decisions. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private medical reports. The claimant was provided an opportunity to set forth his contentions during a videoconference hearing before the undersigned. The claimant was afforded VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). The Veteran reported that he was involved in a mortar attack in Vietnam. Research at the Board reflects that his ship, USS Sanctuary, often visited Da Nang Harbor during the Veteran's tour of duty. In March 2009, he reported that he flew into and out of Da Nang and other areas of South Vietnam on helicopters and that he was a coxswain on small boats, LCVPs [Landing Craft Vehicle-Personnel] [called also, Higgins Boats], PBRs [Patrol Boat, River], and other watercraft. It is plausible that he was subject to mortar attacks while there. He will therefore be afforded any consideration due a combat Veteran. Any Acquired Respiratory Disability The Veteran has alleged exposure to asbestos during active service. He has claimed that he had no pre-service or post-service exposure to asbestos. There is no specific regulation concerning what, if any, development is to be performed for alleged exposure to asbestos, nor is there a presumption of service connection for those exposed to asbestos in service. However, the Court has stated that VA must follow certain steps in adjudicating asbestos-related claims, including determining whether exposure has occurred. In McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993), and in Ennis v. Brown, 4 Vet. App. 523, 527 (1993), the Court vacated and remanded a Board decision which had failed to analyze an asbestos-related claim in light of considerations discussed in Department of Veterans Benefits (DVB) Circular 21-88-8. See also Nolen v. West, 12 Vet. App. 347, 351 (1999); VAOPGCPREC 4-2000 (see 65 Fed. Reg. 33422 (2000)). However, DVB 21-88-8 was rescinded by VBA Manual M21-1, Part VI, Change 3, September 21, 1992, and its provisions have been incorporated into VBA Manual M21-1, Part VI. Paragraph 7.21a of VBA Manual M21-1, Part VI, provides that asbestos fibers, when inhaled or swallowed, can produce fibrosis and tumors of the larynx, pharynx, lungs, gastrointestinal tract, and urogenital system. They can produce pleural effusions and pleural plaques. Those exposed to asbestos have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. About 50 percent of those with asbestosis will eventually develop lung cancer. This risk is increased in current cigarette smokers who have asbestos exposure. Paragraph 7.21b of VBA Manual M21-1, Part VI, provides that certain occupations such as work in shipyards, insulation work, demolition of old buildings, and installation of military equipment involve exposure to asbestos. Significantly, the latent period between exposure and the development of disease varies from 10 to 45 or more years, and significant exposure may occur in as brief a period as a month or two, even for an indirect bystander. Paragraph 7.21c of VBA Manual M21-1, Part VI, provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs might include dyspnea on exertion, rales over the lower lobes, pulmonary function test impairment, and emphysema. Paragraph 7.21d. (1) of VBA Manual M21-1, Part VI provides: When considering VA compensation claims, rating specialists must determine whether or not military records demonstrate evidence of asbestos exposure in service. Rating specialists must also assure that development is accomplished to determine whether or not there is preservice and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. VAOPGCPREC 4-2000 includes the following guidance: The determinative issues in an asbestos-related claim would generally include a medical diagnosis and medical causation. For example, the asbestos-related diseases referenced in paragraph 7.21 of VBA Manual M21-1, Part VI, such as asbestosis, pleural effusions and fibrosis, pleural plaques, and mesothelioma of pleura or peritoneum, must first be medically diagnosed and then shown to be medically related to in-service exposure to asbestos. See Nolen, 12 Vet. App. at 351 (finding no medical-nexus evidence between the Veteran's asbestosis and his service exposure). Therefore, although a claimant may provide competent evidence of a current disability and of in-service exposure to asbestos, the claimant would still need to present competent medical evidence of a nexus relating the current disability to in-service exposure to asbestos. As set forth above, the first sentence in paragraph 7.21 d. (1) requires a determination as to "whether or not military records demonstrate evidence of asbestos exposure in service." In the present case, military records do not conclusively demonstrate asbestos exposure. That the Veteran served where asbestos was encountered is simply an assertion of the Veteran and another lay witness. However, as noted above, in VAOPGCPREC 4-2000, VA's General Counsel suggested that a claimant may provide competent evidence of in-service exposure to asbestos. Thus, the Board will resolve any remaining doubt in favor of the Veteran and find that he and another lay witness provided competent evidence of exposure to asbestos during active service. In March 2010, the Veteran requested service connection for "asbestos medical condition." He reported that private X-rays showed lung scarring. He submitted a March 2010-dated private computerized tomography study that revealed pleural calcification that could be due to previous infection or asbestos exposure. According to an August 2010 VA pulmonology consultation report, the assessment was shortness of breath of unclear etiology. The report notes that calcified pleural plaques were most likely consistent with prior asbestos exposure, but there was no evidence of asbestosis or other active lung disease at present. Therefore, it was concluded that it is unlikely that his symptom, that is, shortness of breath, is caused by exposure to asbestos. According to a September 2010 VA bronchoscopy procedure, respiratory tissues appeared normal. December 2010 VA spirometry was normal and according to a December 2010 VA respiratory compensation examination report, the two diagnoses were asbestos exposure and dyspnea of unknown cause. The examiner explained that asbestos exposure would not lead to shortness of breath (dyspnea), but pleural plaques could lead to a restrictive lung disease, which the Veteran did not have. In an April 2012 report, the December 2010 examining physician stated that the Veteran's spirometry was not normal, as it showed, or was suggestive of, a restrictive lung disease. The physician noted that November 2011 spirometry also showed a restriction, but that the restriction was mild and not disabling. In a May 2012 report, the physician then controverted the findings of April 2012. In May 2012, the VA physician dissociated any restrictive lung disease from asbestos exposure, thus creating a medical controversy. The rationale behind the negative nexus opinion of May 2012 is that the 2011 spirometry showed improvement over the 2010 spirometry. The physician did not explain why improved spirometry rules-out an asbestos-related etiology for dyspnea and restrictive lung disease. Thus, the rationale lacks persuasive value. Although the Board may not second-guess a medical expert based upon its own opinion, it cannot accept the opinion of a physician whose opinion is not clear enough for a lay adjudicator to understand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board therefore will not place significant weight on the May 2012 medical opinion. In November 2012, the Veteran testified before the undersigned that he was exposed to asbestos in the Navy shipyards and later, while aboard a naval vessel. He testified that he had no post-service asbestos exposure. In this case, VA and private lung studies agree that there is lung scarring, that is, pleural calcification or pleural plaques, as shown on X-rays and CT study. VA spirometry showed restrictive airway disease. As mentioned above, VBA Manual M21-1 lists "pleural plaques" as an "asbestos-related disease." These plaques were "medically diagnosed" in accordance with the VBA Manual guidance. Satisfactory medical nexus evidence was supplied in the August 2010 VA pulmonology consultation report that notes that calcified pleural plaques are most likely consistent with prior asbestos exposure. In April 2012, a VA physician persuasively associated restrictive airway disease with asbestos exposure. This medical evidence must be accorded weight because it is based on correct facts and is supported by a rationale. Nieves-Rodriguez, 22 Vet. App. at 301. The Board must address the competency, credibility, and probative value of the lay testimony. 38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lay statements are competent evidence with regard to descriptions of symptoms of disease or disability. Where lay evidence is used to establish a diagnosis or etiology, its persuasive value is conditional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent on condition that: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In this case, because the Veteran's claim that his pleural plaques were cause by active service supports a later diagnosis by a medical professional, his testimony will be afforded some weight in the matter. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for restrictive airway disease, due to asbestos exposure, will therefore be granted. Bilateral Hearing Loss Disability Entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385 (2012), which provides: For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In Hensley v. Brown, 5 Vet. App. 155, 159, (1993), the Secretary posited that where the regulatory threshold requirements for hearing disability are not met until several years after separation from service (such as is shown here), the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system, and post-service test results that meet the criteria of 38 C.F.R. § 3.385. VA rating authorities must evaluate available testimony, clinical data, diagnoses, and any medical opinions relevant to the issue. For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometry test results resulting in an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometry testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. In August 2008, the Veteran requested service connection for hearing loss. The RO obtained the Veteran's service treatment reports, which reflect that his hearing was within normal limits in July 1965 at entry into active service. A January 1969 examination report simply notes bilateral 15/15 whispered voice testing. A May 1969 separation examination report again notes bilateral 15/15 whispered voice testing. An August 1969 re-enlistment examination report reflects normal hearing at re-entry into active service and a July 1973 examination report notes normal hearing at separation. According to a November 2008 VA audiology report, the Veteran reported significant noise exposure in combat in Vietnam. Testing revealed sensorineural hearing loss in both ears, worse at the higher frequencies. A September 2008-dated private tympanogram shows similar results. In December 2008, another VA audiologist examined the Veteran's hearing. Again, bilateral sensorineural hearing loss was found. The audiologist compared the current hearing thresholds to those shown at entry and exit from active service. The audiologist made two significant findings: (1) the Veteran's hearing was normal at both entry and exit from active military service; and, (2) no significant upward shift in hearing thresholds had occurred during either period of active service. The audiologist concluded that it is unlikely that noise exposure during active service is related to the current hearing loss disability. The rationale is that there is no evidence of the onset of hearing loss during active service or within a reasonable time post-service. In his March 2009 notice of disagreement (hereinafter: NOD), the Veteran recalled exposure to loud noise during active service from many sources. He named three ships upon which he had served, USS Sanctuary, USS Shangri-La, and USS England. In November 2012, the Veteran testified before the undersigned that he was exposed to much gunfire, helicopter noise, engine-room noise, flight-deck noise, and catapult noise, all without adequate hearing protection. He testified that he had no post-service noise exposure. The medical nexus evidence in this case is negative. Considering the tenets of Hensley, because there is no evidence of an upward shift in hearing thresholds during active service, or evidence of a hearing loss disability that began during active service, the December 2008 VA audiology nexus opinion must be afforded weight. It is based on correct facts and is supported by a rationale. The Veteran's testimony is credible, but it cannot be afforded any weight because no medical professional has agreed that the current hearing loss disability was caused by active military service. Jandreau 492 F.3d at 1377 (lay diagnosis is competent on condition that: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. Service connection for a bilateral hearing loss disability must therefore be denied. ORDER Entitlement to service connection for restrictive airway disease, due to asbestos exposure, is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. ______________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs