Citation Nr: 1439733 Decision Date: 09/05/14 Archive Date: 09/09/14 DOCKET NO. 10-17 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include as due to in-service asbestos exposure. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active service from August 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Louisville, Kentucky. In November 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of this hearing was prepared and associated with the claims file. The Veteran properly withdrew his request for a hearing before a member of the Board in March 2013. 38 C.F.R. § 20.704(e) (2013). This matter was previously before the Board in September 2013, at which time it was remanded for additional development. In January 2014, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. so that the RO could readjudicate the Veteran's claims and issue a Supplemental Statement of the Case. The action specified in the January 2014 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran does not have any current respiratory disorder that had onset in service or that was caused by or related to his active military service, to include asbestos exposure. 2. The Veteran does not have any current low back disorder that had onset in service or that was caused or permanently aggravated by the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disorder, to include as due to in-service asbestos exposure, have not been met. 38 U.S.C.A. §§ 101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also 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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). 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) (2013). A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). For defects, infirmities, or disorders not noted when the veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. Respiratory Disorder The Veteran is seeking entitlement to service connection for a respiratory disorder, which the Veteran contends is due to exposure to asbestos while serving in the Navy. The Veteran has reported that during his active service, he served on the USS Caliente and his bunk was directly underneath asbestos covered pipes. At his November 2009 DRO hearing, the Veteran testified that the USS Caliente underwent retrofitting while he was assigned to the ship and that he was exposed to asbestos at that time since he was still living and working on the ship. The Veteran service treatment records show that in February 1969, he was hospitalized with pneumonia, which was initially diagnosed as pleurisy. However, there is no evidence that these complaints were chronic and a chest x-ray performed prior to the Veteran's discharge from the hospital in February 1969 was negative for any lung pathology. Post-service, there is no evidence of complaints of or treatment for a respiratory disorder for more than thirty years after separation from service. Current VA outpatient treatment records note complaints of shortness of breath and a diagnosis of chronic obstructive pulmonary disease (COPD). In February 2013, the Veteran's claims file was referred for review. The VA examiner opined that it is less likely than not that the Veteran had any respiratory disorder that had onset in service or was caused by or related to the Veteran's active military service. He explained that: The Veteran did not have a chronic respiratory condition diagnosed while in the service. In Feb 1969 he developed an acute bacterial pneumonia that was successfully treated and reso1ved. A repeat chest x-ray at that time was normal. The Veteran does not currently have a diagnosed chronic respiratory condition. He has a significant tobacco abuse history and may presumptively have COPD, but this has not been officially diagnosed. His PFTs in 2007 show a ventilatory restriction due to morbid obesity but no evidence of COPD. His chest x-ray in 2012 was normal. The Veteran has never had any evidence of asbestosis on a chest x-ray. His chest x-ray prior to separation from the service was normal, as was his chest x-ray in 2012. There is no nexus for the Veteran's claim. Even if he was exposed to asbestos in the service in the late 1960s, there is no evidence of any related respiratory condition to this.... In October 2013, the Veteran was afforded a VA examination. This new VA examiner also concluded that it is less likely than not that the Veteran had any current respiratory disability caused by or related to his active military service. He offered the following rationale: The Veteran does not carry a current diagnosis of asbestosis based on his PFTs and his recent CT of the chest (which the radio1ogist reported as specifically not showing asbestosis). The Veteran's stated exposure to asbestos during the service does not appear to have caused him chronic problems while on active duty. There is no evidence that his exposure led to problems near the end of his service and progressed to chronic disability after service. None of this is surprising since asbestos exposure takes decades to show itself as asbestosis. Since there is no current diagnosis of asbestosis, there can be no nexus to exposure during service. The Veteran's lay statements regarding asbestosis exposure have been viewed as competent and credible and have been accepted and considered in the rendering of this opinion. However, his contentions of asbestosis in the face of absence any current evidence of this disease cannot sway the opinion into being favorable for him. In-service treatment for pleurisy has no bearing on the Vet's claim. Pleurisy is an acute and transitory condition, and would not be expected to have chronic effects now, decades later. So far as pneumonia is concerned, it appears to have also been acute and transitory, without chronic effects. His pneumonia was in the left upper lobe in the late 1960's; his 10/2013 CT of the chest does not show any lasting damage, such as scar tissue, from his lung infection in the remote past. So far as smoking is concerned, his history is fairly impressive. It would be expected to have caused COPD, but based on his PFT's, he doesn't appear to have it. The PFT's show restrictive lung disease and his obesity is the most likely cause of this. It should be noted that there are a multitude of problems that can cause the nodules found on the recent CT of the chest; there is no evidence that the Vet's military service led to these small nodules. It should be noted that these would appear to be benign, as the radiologist only wants a follow up CT in a year; when they suspect something significant, they will usually recommend biopsy or at least a follow up CT sooner than one year. Based on all the above evidence, the Board finds that entitlement to service connection for a respiratory condition must be denied. There is no evidence that the Veteran suffered from any chronic respiratory condition in service or for decades after service. The Veteran has currently been diagnosed with restrictive lung disease, but this has been attributed to his obesity by both VA examiners and the Veteran has provided no evidence to the contrary. Although VA and private treatment records note a diagnosis of COPD, the October 2013 VA examiner explained that the Veteran's pulmonary function test results do not actually support this diagnosis. Although the Veteran has purported exposure to asbestos, there is no evidence that the Veteran currently suffers from asbestosis or any other chronic condition related to this alleged in-service exposure. While the Veteran has offered his own opinion as to the cause of his current respiratory complaints, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has asbestosis or some other respiratory condition due to his alleged exposure to asbestos in service is too complex to be addressed by a layperson. Neither the diagnosis nor etiology of the Veteran's respiratory condition is amenable to observation alone. Many illnesses can cause symptoms such as shortness of breath or chest pain. Furthermore, it is common knowledge that the causes of respiratory conditions are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the VA medical opinions of record, which have concluded that there is no evidence of any current respiratory disability related to the Veteran's service. The Veteran has submitted no medical evidence to the contrary. For all the above reasons, entitlement to service connection for a respiratory disorder, to include as due to in-service asbestos exposure, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Low Back The Veteran is also seeking entitlement to service connection for a low back disability. He has alleged that it was caused by his drill sergeant standing on his back during basic training. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. At issue is whether this disability had onset in service or was caused by some event or injury in service. The Veteran's August 1965 enlistment physical is negative for any evidence of a back or spine condition. Service treatment records show that the Veteran complained of low back pain on several occasions in service. The Veteran first complained of low back pain in November 1965 and was prescribed short term muscle relaxers. In December 1965, he again complained of low back pain which sometimes radiated around the left chest area. He claimed that he been experiencing pain in his low back for the last year and a half, which would place onset of his condition prior to enlistment. However, he also reported that his condition had worsened when he fell and struck his back in September. On examination, he had some mild muscle spasm on the left side of his back, but had good range of motion without any evidence of neurological impairment. He was diagnosed with chronic low back pain. In October 1967, the Veteran complained of lower back locking and a sore shoulder of one month duration with onset following lifting heavy objects. An x-ray was ordered. The examining physician noted exaggeration of the dorsal kyphosis and of the lumbar lordosis, as well as possible old Scheuermann's disease of the lower dorsal spine. However, there was no evidence of fracture or degenerative changes. At a November 1967 follow-up appointment, he continued to complain of low back pain, without relief from exercise and bed-board. No further complaints are noted in the Veteran's service treatment records. At a May 1968 discharge and immediate re-enlistment examination, the Veteran's spine was normal, with no complaints of low back pain or injury noted at that time. Post-service, there is no evidence of any complaints of or treatment for a low back disability until more than three decades after separation from service. The Veteran was afforded a VA examination of his low back and spine in April 2009. The examiner gave a negative nexus opinion stating that "there is no evidence of chronic low back pain after military discharge until 2006." This evidence did not, however, contemplate the Veteran's lay statements. Moreover, the examiner did not consider evidence in the Veteran's service treatment records suggesting that his low back condition may have preexisted service and may be attributable to a congenital disease, despite the fact that no back disability was noted at the time of enlistment. In October 2013, the Veteran was afforded a new VA examination. He was noted to have a current diagnosis of degenerative disc disease of the lumbar spine. As an initial matter, the VA examiner concluded that it was less likely than not that the Veteran has a congenital back condition, to include Scheuermann's disease. He noted that many x-rays of the Veteran's back have been taken since service and none of them have mentioned a congenital back condition. Furthermore, there are no other findings or history that are consistent with a congenital back condition. The VA examiner also found that there was clear and unmistakable evidence that the Veteran suffered from low back muscle strain prior to enlistment, based on the Veteran's report in December 1965 that he had been experiencing low back pain for a year and a half, which would place onset approximately a year prior to service. However, he also concluded that the Veteran's low back muscle strain was clearly and unmistakably not aggravated by his military service beyond the natural progression of the disability. The examiner explained that the Veteran's low back problems appeared to have resolved by discharge from service and no further problems with the back were noted until 2006, at which time, the Veteran was diagnosed with degenerative disc disease, not muscle strain, and his muscle strain appears to have resolved. The examiner explained that muscle strain does not cause or lead to degenerative disc disease. Ultimately, the examiner concluded that it is less likely as not that the Veteran's back disorder was incurred in or caused by an in-service event or injury. He explained: The Vet had a chronic muscle strain condition on active duty. There is no indication that he had degenerative disc disease which is his current condition. There is no evidence that he continues to have the back muscle strain he had before and during service. Based on all the above evidence, the Board finds that entitlement to service connection for a low back disorder must be denied. The preponderance of the evidence weighs against a finding that the Veteran's current degenerative disc disease had onset in service or was caused or permanently aggravated by his active military service. An x-ray of the Veteran's back and spine taken in service shows no evidence of degenerative disc disease and he was not diagnosed with this disability until more than three decades after separation from service. The United States Court of Appeals for Veterans Claims (Court) has held that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Here, the Board finds that the absence of any low back complaints during the Veteran's last year of service and for decades after service weighs against the Veteran's assertions that he has suffered from a low back problem since service. While there is evidence that the Veteran suffered from low back muscle strain in service, after November 1967, the Veteran's service treatment records are negative for any further complaints of low back problems and no disability of the back or spine was found when the Veteran's was examined in May 1968. The October 2013 VA examiner found that the Veteran's muscle strain had resolved and that there is no relationship between the Veteran's in-service muscle strain and his current degenerative disc disease, as muscle strain does not cause or lead to degenerative disc disease. While the Veteran feels strongly that his current low back problems are related to his active military service, as the Board noted above, the Veteran is not a medical expert, and his opinion concerning the etiology of his current low back disability is entitled to limited probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).While the Veteran is certainly competent to describe a history of low back pain, the causes of low back pain are myriad and the Veteran is not qualified to offer an opinion concerning the etiology of his current disability. The Board gives greater weight to the opinion of the October 2013 VA examiner, who reviewed the Veteran's claims file and provided a thorough explanation for his conclusions that the Veteran's current disability is not related to service. The Board can find no evidence that any of the Veteran's treatment providers has offered an opinion concerning the etiology of the Veteran's low back disorder which would support the Veteran's claim. For all the above reasons, entitlement to service connection for a low back disorder is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, SSA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at an RO hearing. The hearing was adequate as the DRO who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). ORDER Entitlement to service connection for a respiratory disorder, to include as due to in-service asbestos exposure, is denied. Entitlement to service connection for a low back disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs