Citation Nr: 1316683 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-22 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disability (claimed as bad back from injury from US Coast Guard (also claimed as back injury as disability from exposure to asbestos). 2. Entitlement to service connection for a lung disability (claimed as spots on the lungs) as a result of asbestos exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty in the Coast Guard from January 1980 to October 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In his July 2007 VA Form 9, the Veteran requested a Board hearing. In December 2012, he was sent a letter asking if he still desired a hearing. As of this date, the Veteran has not responded to the letter, and he has not requested that another hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2012). The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have a lung disability, to include as manifested by spots on the lungs. CONCLUSION OF LAW The criteria for service connection for lung disability, including spots on the lungs, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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 seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an April 2006 letter, issued prior to the initial adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letters satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claim in a March 2006 letter. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board acknowledges that, unfortunately, all of the Veteran's service treatment records could not be obtained. Only the dental records and pre-induction and entrance physical examinations could be found. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because these records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board notes that, besides the unavailable service treatment records, all pertinent evidence has been obtained in this case. This included VA treatment records from New Orleans and Houston facilities, for the time period August 2009 through December 2012, which are incorporated in the "Virtual VA" filed records, and which considered by the January 2013 Supplemental Statement of the Case. The Board acknowledges that the Veteran has not been afforded a VA examination for his claim. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As noted above, the Veteran's complete service treatment records are not available. However, as discussed below, no competent evidence of a diagnosis or symptoms of a disability manifested by spots on the lungs or any other lung disorder has been submitted. Accordingly, it was not necessary to obtain a medical examination or medical opinion in order to decide the claim for service connection for spots on the lungs. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. 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." 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. See 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). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. 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. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. 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). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. 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. See 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 and/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, keeping in mind the latency and exposure information pertinent to the Veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. 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 related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Veteran's claim of entitlement to service connection for spots on the lungs under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Analysis The Veteran contends that he has spots on the lungs, as a result of exposure to asbestos during active military service. As noted above, all of the Veteran's service treatment records are not available. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because these records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The available service treatment records consist only of dental records and pre-induction and entrance physical examinations. These records are negative for any evidence of complaints, treatment or a diagnosis related to spots on the lungs or any other lung disorder. The post-service medical evidence of record does not show that the Veteran has ever been diagnosed with spots on the lungs or any other lung disorder. In this regard, outpatient treatment records from the VA Medical Center in New Orleans and Houston show that on evaluation from January 2010 to November 2010, lungs were clear to auscultation and percussion bilaterally, and there were no wheezes and crackles heard, and the Veteran denied shortness of breath, cough or wheezing. August 2010 and November 2011 chest x-rays indicated that there was no active pulmonary disease. On evaluation in August 2012, the Veteran again denied shortness of breath, wheezing or coughing. Lungs were again clear to auscultation, bilaterally, and no wheezing or crackles were heard. Lungs were noted to be clear again on evaluation in December 2012. The Board acknowledges a March 2003 clinical record indicates that albuterol inhaler was prescribed, although it did not describe the reason for this prescription. The Board finds, however that this albuterol prescription must have been for an acute and transitory condition rather than any chronic pulmonary ailment. This is because the most recent medical evidence of record, from August 2009 through December 2012, contain multiple lists of his medications, but albuterol (nor other inhalant) is listed has a currently prescribed medication. Indeed, except for the March 2003 record, there is no evidence of any such prescription. Private treatment records are negative for any evidence of treatment for spots on the lungs or any other lung disorder. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). The Veteran is competent to report that he believes he was exposed to asbestos in service and that he subsequently developed a lung disability manifested by spots on the lungs. However, an underlying disability has never been identified. Indeed, the Veteran has not articulated any symptoms, such as difficulty breathing, coughing, etc., that may indicate the presence of a lung ailment. There are no other findings of a spots on the lungs or any other lung disorder in the record. There is also no evidence that the Veteran was exposed to asbestos during service, but even if there was, there remains no competent or credible lay or medical evidence of a current disability emanating from such exposure. In essence, the evidence of a current diagnosis of a lung disability manifested by spots on the lungs or otherwise is limited to the Veteran's own statements. The Veteran is competent to report his symptoms, but his reports are not competent evidence of the claimed disability since laypersons, such as the Veteran, are not qualified to render a medical diagnosis. 38 C.F.R. § 3.159(a)(1),(2) (2012). In light of the absence of any competent evidence of a disability manifested by spots on the lungs in service or thereafter, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for spots on the lungs is denied. REMAND The Veteran contends that he has a current low back disability related to his active military service. Specifically, he has reported that he injured his back in 1980 or 1981 when a car he was working on fell on his back, and that he was hospitalized and treated after the accident for two weeks at the Long Beach Naval Hospital in 1981 or 1982. See January 2006 and October 2008 applications for compensation and/or pension, July 2006 notice of disagreement, and July 2007 VA Form 9.. VA outpatient treatment records dated from 2003 to 2008 show that in November 2008, the Veteran complained of left upper back pain after lifting a heavy weight belt while diving. It was also noted at that time that he had a history of lumbar problems from prior trauma. Treatment records from the Hospital of California Institution for Men in Chino, California and the California Department of Corrections (CDC), show that the Veteran was treated for low back pain and chronic low back pain from 2004-2006, and that a September 2004 lumbar spine X-ray revealed mild degenerative changes from L3 through S-1, with mild disc space narrowing at L-5/S-1. None of these records show that the lumbar spine disability has been linked to the Veteran's active military service. As noted above, all of the Veteran's service treatment records may not be available. Available service treatment records are negative for any evidence of a low back disability or back injury in service. As noted above, the Veteran reported that he was treated for his claimed back injury for two weeks at the Long Beach Naval Hospital sometime between 1980 and 1981. The record reflects that the Veteran was sent a letter in December 2012, informing him that in order for these clinical records to be requested, he needed to submit additional information. However, it is not exactly clear from the record what efforts were already made to obtain these records, and there has been no formal finding that the records are unavailable. While the December 2012 letter indicated that the Veteran had to narrow the dates of hospitalization down a two month period, the Board finds that the Veteran has reasonably identified records that may be available. Under the circumstances of this case, where service department records are missing at no fault of the Veteran, additional efforts are required to search alternative sources covering his entire active duty service from including all of 1980 and 1981. 38 U.S.C.A. § 5103A; see Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that where service treatment records are missing, VA has a duty to search for alternate sources of records). The procurement of potentially pertinent medical records referenced by the Veteran is required. As it appears that there may be available service medical records that are not presently associated with the claims folder, a remand is required. See 38 C.F.R. § 3.159(c)(2). The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. If VA is unable to obtain such records, VA must provide the claimant with oral or written notice of that fact. The notice must contain various information, including an explanation of the efforts VA made to obtain the records and a description of any further action VA will take regarding the claim. 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain a complete copy of the Veteran's service treatment records, including the aforementioned treatment records from the Long Beach Naval Hospital from 1980-1981, through official channels, with any necessary follow up requests. If the records are not available, search alternate sources of records. If the RO or the AMC is unsuccessful in obtaining any such evidence, it should document the efforts to obtain the records, and if the records are unavailable, make a finding to that effect. 2. After completion of the above development, review the claims file and undertake any further development indicated. This shall include obtaining and associating with the claims file updated VA treatment records regarding the Veteran. This also shall include obtaining and associating with the claims file, after securing any necessary proper authorization, any additional pertinent records identified by him during the course of this remand. This finally shall include, if deemed necessary, affording the Veteran an appropriate VA examination to determine the nature, extent, onset, and etiology of any low back disability found to be present. 3. Then readjudicate the remaining claim on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs