Citation Nr: 1404130 Decision Date: 01/30/14 Archive Date: 02/10/14 DOCKET NO. 11-02 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for chronic bronchitis. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The evidence of record, particularly medical evidence showing a bilateral hearing loss disability as well as the positive nexus opinion from a VA audiologist, shows that bilateral hearing loss is as likely as not related to the Veteran's military service. 2. Chronic bronchitis was not present during service and did not develop as a result of any incident during service. 3. COPD was not present during service and did not develop as a result of any incident during service, including exposure to asbestos. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. Chronic bronchitis was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. COPD was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to 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). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In light of the fully favorable determination as to the issue of service connection for bilateral hearing loss, no discussion of compliance with VA's duty to notify and assist is necessary with respect to that issue. As for the other issues, the Veteran was notified in a letter dated in April 2008 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and Social Security Administration (SSA) records. The Board finds that medical opinions on the questions of service connection for chronic bronchitis and COPD are not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that the Veteran incurred an event, injury or disease other than asbestos exposure and that chronic bronchitis and COPD may be related to his military service, to include being due to asbestos exposure. See Duenas v. Principi, 18 Vet. App. 512 (2004). Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition (e.g., sensorineural hearing loss) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., sensorineural hearing loss) may be also presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2013). The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss that is due to in-service noise exposure. See, e.g., March 2008 claim. A review of the Veteran's STRs shows no treatment for, or diagnosis of, bilateral hearing loss. His March 1966 pre-induction and July 1968 discharge examinations both failed to show a bilateral hearing loss disability as defined by VA. In his reports of medical history for those examinations, he denied symptoms such as hearing loss. His DD 214 shows that his military occupational specialty (MOS) was that of a general vehicle repairman. Accordingly, in-service acoustic trauma is conceded. A January 2009 VA examination reveals a bilateral hearing loss disability as defined by VA. Occupational and recreational noise exposure was denied. The examiner opined that it was not at least as likely as not that current hearing loss began while in the military. The rationale was that the Veteran had hearing sensitivity within normal limits at the time of separation from service. A positive nexus opinion from a VA audiologist was provided in June 2012. The letter shows that the Veteran reported his in-service noise exposure. The positive opinion was based upon the Veteran's report and documented hearing loss. Based upon a review of the evidence, the Board concludes that service connection for bilateral hearing loss is warranted. In-service noise exposure has been conceded and the evidence shows that the Veteran currently has a bilateral hearing loss disability as defined by VA. The June 2012 nexus opinion from the VA audiologist shows that the Veteran's bilateral hearing loss is related to his military service. While the January 2009 VA examiner provided a negative nexus opinion, as it was premised upon the absence of hearing loss at discharge from service, the Board finds that it violates Hensley and therefore, lacks probative value. Thus, after considering all of the evidence of record, specifically the positive nexus opinion, the Board concludes that a finding of service connection is warranted. Service connection for bilateral hearing loss is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2013). 2. Chronic Bronchitis The Veteran contends that he has chronic bronchitis that is related to his military service. See, e.g., March 2008 claim. Specifically, he claims that he had symptoms of bronchitis in service when he was treated for upper respiratory infections (URIs). See, e.g., January 2011 substantive appeal. A review of the Veteran's STRs does not show any treatment for, or diagnosis of, bronchitis. His March 1966 pre-induction examination shows that he had clinically normal lungs and chest; X-rays were negative. In his report of medical history, he denied symptoms such as shortness of breath, pain or pressure in chest, and chronic cough. In January 1967 and December 1967, the Veteran complained of a cough; the diagnosis both times was URI. Chest X-rays in February 1968 were negative. The July 1968 discharge examination again showed clinically normal lungs and chest.; chest X-rays were normal. In his report of medical history, the Veteran again denied symptoms such as shortness of breath, pain or pressure in chest, and chronic cough. According to post-service treatment records, the Veteran has a history of chronic bronchitis. None of the Veteran's records contain any opinion relating chronic bronchitis to his military service, to include in-service URIs. The records also do not show that the Veteran reported that the onset of his chronic bronchitis was in service, nor do they show the Veteran reporting in-service URIs. Based on a review of the evidence, the Board concludes that service connection for chronic bronchitis is not warranted. Although the evidence shows that the Veteran has a history of chronic bronchitis, it does not show that it is related to his military service. As discussed below, the Board concedes in-service asbestos exposure. However, the Veteran does not contend, nor does the evidence show, that chronic bronchitis is due to asbestos exposure. The evidence fails to show that the Veteran incurred an event, injury or disease other than exposure to asbestos in service or that his chronic bronchitis had its onset in service. His STRs show that chest X-rays throughout service were negative or normal. His discharge examination revealed normal lungs and chest and the Veteran denied any pertinent symptomatology. His STRs fail to show the incurrence of chronic bronchitis in service. Although his STRs do show two diagnoses of URIs, no medical professional has provided any opinion indicating that chronic bronchitis is due to those diagnoses. The Veteran has not reported incurring any other event, injury or disease. The contemporaneous service records and post-service treatment records all fail to show that he incurred an event, injury or disease to his lungs, chest and respiratory system other than exposure to asbestos in service. Therefore, the evidence does not support a finding that the in-service incurrence or aggravation of an event, injury or disease to his lungs, chest and respiratory system other than asbestos exposure actually occurred. There is no nexus evidence to support a finding of service connection. In this case, the first evidence of bronchitis is a February 2008 treatment record showing that the Veteran's medical history was significant for bronchitis; no onset date was provided. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of bronchitis complaints, symptoms, or findings for four decades between the period of active service and the earliest evidence of a diagnosis of chronic bronchitis is itself evidence which tends to show that chronic bronchitis did not have its onset in service or for many years thereafter. The claims folder contains no competent evidence of chronic bronchitis being associated with the Veteran's active duty. No medical professional has provided any opinion indicating that the Veteran's chronic bronchitis is related to his military service, to include being due to in-service URIs. Without evidence of an in-service event, injury, or disease to the Veteran's lungs, chest and respiratory system other than asbestos exposure or competent evidence of an association between chronic bronchitis and his active duty, service connection for chronic bronchitis is not warranted. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of chronic bronchitis falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between chronic bronchitis and the Veteran's active duty, service connection for chronic bronchitis is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for chronic bronchitis. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for chronic bronchitis is denied. See 38 U.S.C.A §5107. 3. COPD The Veteran contends that he has COPD that is related to his military service. See, e.g., March 2008 claim. Specifically, he claims that it is due to in-service asbestos exposure. Id. As to asbestos-related diseases, there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the Court and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis (IPF), or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Neither the Manual nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999). See also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. A review of the Veteran's STRs does not show any treatment for, or diagnosis of, COPD. The Board has already discussed the Veteran's STRs above with regard to his lungs and chest; for the sake of brevity, the Board will not address them again. As the Veteran's MOS was that of a general vehicle repairman, when affording him the benefit-of-the-doubt, the Board concludes that he was exposed to asbestos in service as he likely would have been involved with the servicing of friction products (such as clutch facings and brake linings). According to post-service treatment records, the Veteran has a diagnosis of COPD. None of the Veteran's records contain any opinion relating COPD to his military service, to include in-service asbestos exposure. None of the Veteran's records show that he reported believing that his COPD was related to such exposure. Based on a review of the evidence, the Board concludes that service connection for COPD is not warranted. Although the evidence shows that the Veteran has a diagnosis of COPD, it does not show that it is related to his military service. No medical professional has provided any opinion indicating that COPD may be related to asbestos exposure or otherwise to the Veteran's military service. There is no evidence of record other than the Veteran's own unsupported assertions that in-service asbestos exposure caused his currently diagnosed COPD. As such, the Board concludes that the evidence does not support a finding that COPD is due to in-service asbestos exposure. The evidence also fails to show that the Veteran incurred an event, injury or disease other than exposure to asbestos in service or that his COPD had its onset in service. The Veteran has not reported incurring any other event, injury or disease. His STRs show that chest X-rays throughout service were negative or normal. His discharge examination revealed normal lungs and chest and the Veteran denied any pertinent symptomatology. The contemporaneous service records and post-service treatment records all fail to show that he incurred an event, injury or disease to his lungs, chest and respiratory system other than exposure to asbestos in service. Therefore, the evidence does not support a finding that the in-service incurrence or aggravation of an event, injury or disease to his lungs and chest other than asbestos exposure actually occurred. There is no indication in his STRs that COPD had its onset in service. There is no nexus evidence to support a finding of service connection. In this case, the first evidence of COPD is in November 2007. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense at 356; see also Maxson at 1333. Thus, the lack of any evidence of COPD complaints, symptoms, or findings for almost four decades between the period of active service and the earliest evidence of a diagnosis of COPD is itself evidence which tends to show that COPD did not have its onset in service or for many years thereafter. The claims folder contains no competent evidence of COPD being associated with the Veteran's active duty. No medical professional has provided any opinion relating the Veteran's COPD to his military service, to include asbestos exposure. Without evidence of an in-service event, injury, or disease to the Veteran's lungs and chest other than asbestos exposure or competent evidence of an association between COPD and his active duty, service connection for COPD is not warranted. Although lay persons are competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of COPD falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4. The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between COPD and the Veteran's active duty, service connection for COPD is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for COPD. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for COPD is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for chronic bronchitis is denied. Entitlement to service connection for COPD is denied. ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs