Citation Nr: 1330024 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-40 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, to include as secondary to a lung disorder and/or hepatitis C. 2. Entitlement to service connection for hepatitis C, to include as secondary to claimed herbicide exposure. 3. Entitlement to service connection for a spontaneous pneumothorax, claimed as a lung disorder, to include as secondary to claimed asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1972 to December 1978. This appeal to the Board of Veterans' Appeals (Board) initially arose from a January 2010 rating decision in which the Regional Office (RO), in pertinent part, denied the Veteran's claim for service connection for a lung condition. In addition, the Veteran appeals from a March 2010 rating decision which denied his claims for service connection for an acquired psychiatric condition and hepatitis C. In July 2013, the Veteran testified at a RO hearing before the undersigned. A hearing transcript has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals a copy of the Veteran's July 2013 hearing transcript. In July 2013, the Veteran submitted additional evidence in support of his appeal as well as a waiver of RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2012). However, this evidence is duplicative of evidence that had been previously submitted by the Veteran, including a statement submitted in June 2010 that had been construed as a notice of disagreement. As a final preliminary matter, the Board notes that the Veteran detailed his objection to the denial of the claim for service connection for a lung condition in a June 2010 notice of disagreement. While an August 2010 statement of the case (SOC), as well as in subsequent supplemental SOC (SSOC), did not specifically list this issue as a pending claim, the text of such decisions addressed the merits of this claim. The Board has therefore determined that this claim is on appeal and has characterized it as a separate claim on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for an acquired psychiatric disorder, to include depression, claimed as secondary to a lung condition and/or hepatitis C, and a spontaneous pneumothorax, claimed a lung disorder, to include as secondary to claimed asbestos exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Hepatitis C is not shown to be causally or etiologically related to any disease, injury or incident during service, to include purported secondary exposure to herbicides. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by the Veteran's active duty service and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations 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, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a pre-rating letter dated in June 2009, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection. This letter provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The March 2010 RO rating decision reflects the initial adjudication of the claim after the issuance of the June 2009 letter. In addition, the pre-rating letter dated in June 2009 provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, service personnel records and Social Security Administration (SSA) records as well as VA and private treatment records. Finally, there are various written statements provided by the Veteran, and by his representative, on his behalf. The Board notes that VA has also attempted to obtain records from multiple private providers, as requested by the Veteran. However, in various responses received in June 2009, July 2009 and September 2009, some of the providers stated that the requested records related to had either been destroyed or that there were no such records available. The Veteran was provided notice of the same in decision documents. To the extent the record shows non-full compliance with 38 C.F.R. § 3.159(e), the Board notes that there is no prejudice. Notice to the Veteran of the unavailability of certain records was followed by multiple subsequent decision documents, including the supplemental statement of the case in November 2012. The Veteran has had ample opportunity to respond and provide any relevant documents he may have had in his possession. The Veteran was afforded a VA examination and an opinion with the respect to that portion of the Veteran's theory of entitlement (exposure to contaminated blood) that triggered the duty to assist. In this regard, the Board notes that the VA examiner offered a nexus opinion as to the claimed disorder and based his conclusion on a review of the record, to include interviews with the Veteran and full examinations. Moreover, such opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinion proffered by the VA examiner is sufficient to assist VA in deciding the claim for service connection for hepatitis C. In regard to the other portion of the Veteran's theory of entitlement (exposure to herbicides), the Board does not find that the duty to provide a medical opinion is triggered. The record only contains the Veteran's conclusory generalized statement that his hepatitis C is caused by herbicide exposure. Thus, the low threshold of an "indication" that hepatitis C has a causal connection to herbicide exposure has not been met. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Additionally, in July 2013, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2013 hearing, the undersigned enumerated the issues on appeal and explained why the RO had denied the claims. Also, information was solicited regarding the etiology of the Veteran's disabilities, to include the Veteran's allegations that it was related to his military service. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While psychosis, liver cirrhosis and sarcoidosis are listed as chronic diseases under 38 C.F.R. § 3.309(a), depression, hepatitis C and a pneumothoraxes are not listed as chronic diseases. Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Hepatitis C The Veteran initially contended that he contracted hepatitis C during service as a result of herbicide exposure while working on vehicles that had been in Vietnam. See Report of Contact in June 2009. The Veteran later added on that he was exposed to hepatitis C from possible blood exchanges with others related to injuries sustained while working on these vehicles and from the airgun immunizations administered at service entrance. While the Board is not bound by Department manuals, circulars, or similar administrative issues, see 38 U.S.C. § 7104(c), the Board recognizes that the Veterans Benefits Administration (VBA) has indicated that the risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a healthcare worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Fast Letter 98-110 (Nov. 30, 1998). The following guidance has been published for adjudicating hepatitis C claims, which states in part as follows: * Population studies suggest hepatitis C can be sexually transmitted. However, the chance for sexual transmission of hepatitis C is well below comparable rates for HIV/AIDS or hepatitis B infection. . . . * The hepatitis B virus is heartier and more readily transmitted than hepatitis C. While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an airgun transmission. * The source of infection is unknown in about 10 percent of acute hepatitis C cases and in 30 percent of chronic hepatitis C cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications. CONCLUSION: The large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of hepatitis C with airgun injectors, it is biologically plausible. . . . VBA Fast Letter 04-13 (June 29, 2004). A veteran also may have been exposed to hepatitis C during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. Id. There was no test available to detect the presence of hepatitis C until 1989. See VBA Fast Letter 98-110. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. Effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202-53216 (August 31, 2010). The above-cited provisions specifically apply to Vietnam Era veterans, and have been extended to veterans who served near the Korean demilitarized zone (DMZ). See 38 C.F.R. § 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6) (iii)-(iv). However, as the Veteran does not contend that his exposure is related to actual service in Vietnam or Korea, he is not entitled to a presumption of herbicides exposure (to include Agent Orange). Id. That notwithstanding, service connection for a disability claimed as due to herbicide exposure may also be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Service treatment records contain a diagnosis of rule-out hepatitis in October 1972; however, no subsequent record shows a positive finding of hepatitis. The September 1978 service discharge examination was negative for any relevant abnormalities and the Veteran denied suffering from, or that he had ever suffered from, hepatitis in an accompanying RMH. A February 2010 VA examination report noted the Veteran's contention that he had contracted hepatitis C during service either from exposure to herbicides on vehicles or from airgun vaccinations and that two other members of his unit had been diagnosed with hepatitis C. The examiner indicated that the Veteran was diagnosed with hepatitis C in May 2009 and that he has not received any treatment. The Veteran reported that he had received a blood transfusion at birth and that he had snorted cocaine on one occasion ten years ago but he denied intravenous drug use or known potential sexual exposure. Following a physical examination and a review of the Veteran's claims file, the examiner opined that the Veteran's hepatitis C was less likely as not due to or a result of service as there was no documentation of exposure during service. In a December 2010 VA examination report, the examiner noted that there was significant evidence of ongoing illicit drug use and abuse in the Veteran's clinical records. Specifically, the examiner referenced an April 1996 private treatment note in which the Veteran reported a history of cocaine use in his teens as well as more recent records documenting concern about the use and abuse of prescription narcotics. The examiner opined that the Veteran's hepatitis C was not due to or aggravated by his service as his greatest risk of hepatitis C was exposure from drug use and abuse over many years. The examiner based his opinion on the Veteran's history of struggles with pyschostimulant use dating back to teenage years, the ongoing struggles with chemical use and abuse, and the lack of history that the Veteran acknowledged chemical dependency concerns and sought treatment. The Veteran's ongoing struggles with illicit drug use was more likely than not an ongoing issue from early teenage years to current to include his time in the military service and after military service. Moreover, the examiner found that the Veteran's reported history of the one-time use of cocaine was suspected as being under reported in light of the larger picture of events. The examiner noted that illicit drug use with or without intravenous use was associated with the increased risk of infectious diseases such as hepatitis C. The examiner maintained that the use of air guns had been shown to be minimal to no risk of hepatitis C exposure. Therefore, more likely than not, the behavior that posed the greatest risk of hepatitis C exposure was the drug use and abuse over many years. Thus, the hepatitis C was not due to or aggravated by the Veteran's time on active duty status. With regards to consideration of the medical literature, the December 2010 VA examiner noted that there were multiple and varied risk factors for the development of hepatitis C. The most important risk factors for hepatitis C are injectable drug use and a person with hemophilia that was treated with products made prior to 1987. The examiner noted that it would be relatively uncommon for individuals with hemophilia to be in the military population as such individuals would not have been accepted into service. Therefore, injectable drug use posed the greatest risk for individuals presenting for VA examinations in the examiner's opinion. The examiner noted that the common behaviors that are reported by individual veterans included the sharing of razors, sharing of tooth brushes, tattooing, immunizations with airguns, multiple sexual partners and exposure to blood due to battle field trauma. While these behaviors do pose some risk of developing hepatitis C, the examiner opined that the risk is substantially less than the risk of developing hepatitis C through injectable drug use. Therefore, if an individual has a history of injectable drug use as well as other or all of the additional risk factors noted above, taking into account the risk stratification as outlined by the Centers for Disease Control, the injectable drug use would be the greatest risk factor and more likely than not, would be the cause of the individual's hepatitis C in the examiner's opinion. The examiner further opined that, if no history of injectable drug use was present, then the other risk factors would be a possibility, with the lowest risk from tattooing and the use of airguns and would be the least likely of the other risk factors to cause hepatitis C. During the July 2013 hearing, the Veteran testified that he sustained little cuts or wounds while working on vehicles during service. He denied drug use, intravenous drug use, or tattoos. He was not treated for any cuts during service. He alleged being exposed to herbicdes while working on vehicles that had been used in Vietnam while stationed in Okinawa. Two letters from individuals who had served with the Veteran were submitted in July 2013. Both letters described the process of repairing engines in the rebuild shop, including finding debris and live ammunition in vehicles which had been used in Vietnam. One individual described receiving cuts from handling the machinery. The Board has first considered whether service connection is warranted on a presumptive basis. The Veteran did not serve in Vietnam and has not alleged serving in Vietnam but rather has alleged exposure from working on vehicles that had been located in Vietnam. However, there is no presumption of "secondary exposure" based on being near, working or handling equipment once used in Vietnam. Moreover, the Veteran's diagnosed hepatitis C is not a disease for which service connection may be granted due to herbicide exposure on a presumptive basis. As such, service connection due to herbicide exposure on a presumptive basis is not warranted for hepatitis C. 38 U.S.C.A. §§ 1101, 1112, 1116; 38 C.F.R. §§ 3.307, 3.309. Also, hepatitis C is not an enumerated "chronic disease" under 38 C.F.R. § 3.309, and so entitlement to service connection based on a theory of continuity of symptomatology is not for consideration. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is also no competent evidence that otherwise shows that the Veteran's hepatitis C is due to herbicide exposure, and therefore, service connection on a direct basis is not warranted. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, while the medical evidence of record shows that the Veteran has a diagnosis of hepatitis C, the probative evidence of record demonstrates that the Veteran's hepatitis C is not related to his service. In this regard, the Board places great probative weight on the December 2010 VA examiner's opinion that the Veteran's hepatitis C was not due to service as his greatest risk of contracting hepatitis C was from exposure as a result of drug use and abuse over the years. The opinion had a clear conclusion and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. The VA examiner's opinion is persuasive. The Veteran has not always provided a consistent history of his hepatitis C risk factors, and therefore, the Board unfortunately cannot find that his statements in this regard are reliable. For example, during his July 2013 hearing, the Veteran denied intravenous drug use or other drug use. See Transcript page 5. Many years earlier, however, the Veteran reported a history of cocaine use in his teens and that he smoked marijuana. See April 1996 Saint Joseph Hospital record. These April 1996 statements were made during the course of medical treatment for another disorder (lung injury), and years prior to the filing of the instant claim. At the February 2010 VA examination, however, the Veteran reported use of cocaine "approximately 10 years ago." In a January 2009 private treatment note from Cromwell Medical Clinic, the Veteran denied recreational drug use, but reported marijuana use "many years ago." A July 2010 Cromwell Medical Center record showed that the Veteran reported that he engaged in occasional recreational drug use of marijuana. A September 2010 VA treatment record showed the Veteran only reported marijuana use which he last used in the 1990s. An April 2011 record from Dr. B.W. showed the Veteran reported that he used marijuana back in 1970 but no longer used. A March 2010 VA treatment record noted that the Veteran reported a history of intranasal cocaine use (as well as history of multiple sex partners in the 1960s and a blood transfusion as a baby). Thus, the Board is persuaded by the VA examiner's clinical finding that the Veteran's ongoing struggles with illicit drug use was more likely than not an ongoing issue from early teenage years to current to include his time in the military service and after military service, and the VA examiner's clinical finding that the Veteran's reported history of the one-time use of intranasal cocaine was suspected as being under reported. The Board also finds significant that in opining that the Veteran's hepatitis C was not due to service, the VA examiner found that immunizations with air guns posed the lowest risk of hepatitis C exposure and that "[i]llicit drug use with or without IV use is associated with increased risk of infectious diseases such as hepatitis C." Indeed, as noted above, VA has recognized both IV drug use and intranasal cocaine use as risk factors. For these reasons, the Board finds the VA examiner's opinion persuasive and therefore, probative on the nexus issue. There is no medical opinion of record to the contrary. Accordingly, as the probative evidence of record demonstrates that the current hepatitis C is not likely related to in-service immunizations with air guns and possible exposure to another individual's contaminated blood, service connection is not warranted. In so finding, the Board recognizes that although lay persons like the Veteran and his two buddies 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's hepatitis C is likely etiologically related to in-service risk factors, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Indeed, the probative medical evidence of record shows that there is no likely relationship between the Veteran's hepatitis C and his military service. For all the foregoing reasons, the claim for service connection for hepatitis C must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for hepatitis C, to include as secondary to claimed herbicide exposure, is denied. REMAND The Veteran contends that his current lung disorder is the result of his exposure to asbestos during service while working on engines and while using asbestos blankets. With regards to claims involving service connection for asbestos-related disease, there are no special statutory or regulatory provisions. In McGinty v Brown, 4 Vet. App. 428 (1993), the Court, noting the absence of specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, observed that some guidelines for compensation claims based on asbestos exposure were published in the Department of Veterans Benefits, Veterans Administration,(DVB) Circular 21-88-8, dated May 11, 1998. The DVB Circular was subsequently rescinded but its basic guidelines are now found in the Veteran's Benefit Administration Manual M21-1, Part VI. These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancer of the bronchus, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9-b; see also Ennis v. Brown, 4 Vet. App. 523 (1993). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. 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. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29-a. The Board is cognizant that the RO noted that the Veteran was an auto repairman while in service and that based on his military occupation, it was at least as likely as not that the Veteran was exposed to asbestos while servicing friction products such as clutch facings and brake linings. Post-service clinical records document that the Veteran sustained multiple pneumothroaxes (two in 1996 and one in 1999). While an August 2000 private treatment note indicated that the Veteran's last chest X-ray was "relatively normal," records from the SSA included a summary that indicated that an April 3, 2000 biopsy of apical lung tissue revealed pleural scarring. Also, June 2011 records from Dr. B.W./LCMSC showed that a CT scan noted an impression of right pleural based thickening that most likely represented pleural-based scarring. As there is evidence of pleural based thickening and pleural-based scarring, and evidence that suggests that the Veteran was exposed to asbestos during service, the Board finds that the Veteran should be afforded a VA examination and a nexus opinion. If the Veteran is clinically found to have an asbestos related disease, then a nexus opinion should also be obtained on whether the Veteran has depression or dysthymia secondary to the asbestos related disease. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA examination in connection with his lung disorder claim. All indicated tests and studies are to be performed. Request that the examiner review the claims file and note the review in the examination report. Request that the examiner provide an opinion on whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's lung disorder, including multiple pneumothroaxes (two in 1996 and one in 1999) and pleural based thickening and pleural-based scarring found on biopsy of apical lung tissue in April 2000 and CT scan in June 2011, is etiologically related to exposure to asbestos. For purposes of this opinion only, the examiner is to assume that the Veteran was exposed to asbestos during his military service. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 2. If, and only if, the Veteran is diagnosed with a lung disorder attributable to in-service exposure to asbestos, schedule the Veteran for an appropriate VA examination in connection with his psychiatric disorder claim. All indicated tests and studies are to be performed. Request that the examiner review the claims file and note the review in the examination report. Request that the examiner provide an opinion on whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's psychiatric disorder, including depression and dysthymia, is (a) caused by or (b) aggravated by the service related lung disorder. If such aggravation is found, the examiner should address the following medical issues: (i) the baseline manifestations of the Veteran's psychiatric disorder found prior to aggravation; and (ii) the increased manifestations that are proximately due to the lung disorder. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. 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). ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs