Citation Nr: 1456558 Decision Date: 12/24/14 Archive Date: 01/02/15 DOCKET NO. 14-31 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asthma and chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran had active service from December 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the above claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran currently suffers from a respiratory disorder, to include asthma and COPD, which is the result of a disease or injury in active duty service or any incident thereof, to include asbestos exposure. 2. The most probative evidence of record fails to establish that the Veteran has a current low back disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a respiratory disorder, to include asthma and COPD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 U.S.C.A. §§ 3.303, 3.304 (2014). 2. The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 2014) 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) (2014). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled Am. Veterans v. Sec'y 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. A February 2012 pre-rating letter from the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection. The letter described what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The October 2013 RO rating decision reflects the initial adjudication of the claims after issuance of the February 2012 letter. Hence, the February 2012 letter, which meets the content of notice requirements described in Dingess/Hartman and Pelegrini, also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment and personnel records, post service private and VA treatment records, and lay statements. The Veteran was not afforded a VA examination in conjunction with his claims for a respiratory disorder or low back disorder. However, the Board finds that VA is not required to provide an examination for either claimed disability. Regarding the claimed respiratory disability, a VA examination is not required because the evidence does not establish that the Veteran was exposed to asbestos during military service as alleged and the evidence does not establish that he had symptoms of a respiratory disorder during military service. Similarly, a VA examination is not required for the claimed low back disability because the record does not contain competent lay or medical evidence of a current diagnosed low back disability or persistent or recurrent symptoms of low back disability. Thus, the medical evidence of record is sufficient to decide the issues and no examination is required. See 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (describing when VA is required to provide a medical examination or obtain a medical opinion). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate his claims, 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 the claims. 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 claims. 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. Relevant Laws and Regulations for Service Connection The Veteran contends that he has a lung disorder, claimed as COPD and asthma, due to asbestos exposure during military service. He also asserts that he has a current low back disability as a result of severe back trauma caused by lifting heavy steel stacks from the anchor locker of the USS Crane during boot camp in San Diego, California. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (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) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pertinent to the low back claim, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. 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 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. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, 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 roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). 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 former 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. See VA O.G.C. Prec. Op. No. 04-00. The Veteran's service treatment records are silent for complaints, diagnosis, or treatment for respiratory or low back problems. On enlistment examination in July 1942 and on discharge examination in December 1945, physical examination of the spine and respiratory system was reported as normal. In addition, chest x-rays performed at enlistment and discharge were reported as negative. An abstract of physical qualifications for special duties noted that the Veteran was qualified for parachute jumping in February 1944 and March 1945. A record of separation from U.S. Naval Service identifies the Veteran's military occupational specialty as parachute rigger. His service personnel records do not reflect service aboard any ships or exposure to asbestos. Instead, his records document that he was present at the U.S. Naval Training Station (USNTS) in California, Naval Air Station (NAS) Pearl Harbor, and NAS Seattle. A December 1945 record indicates that he received a cigarette ration card issued for the period ending December 1945. The Veteran's claim for service connection for a lung disorder was received in November 2011. At that time he indicated that he was not claiming a disability related to asbestos exposure. In August 2012, he filed a claim for service connection for "lower back trauma." He also clarified that he was specifically claiming service connection for COPD due to exposure to asbestos "aboard [U.S. Navy] ships." Post service private treatment records from T. Freudenberger, M.D., dated from February 2008 to December 2011 reflect evaluation and treatment for COPD, but were silent for complaints, diagnosis, or treatment for low back problems. The impression of a February 2008 chest x-ray was worsening COPD compared to a December 2004 chest x-ray. A December 2011 treatment note indicated that the Veteran returned for follow-up for multiple medical problems. A list of diagnoses included end-stage COPD, noting a "prior diagnosis of asthma (1950)," and osteoarthritis of an unspecified location. Reported social history indicated that the Veteran was a former smoker and that he had increased responsibilities as a caregiver because his wife had had a stroke. Following a physical examination, the impression was COPD, GOLD stage 4. Private treatment records from C. Wey, M.D., dated from February 2009 to December 2011 also reflected treatment for COPD. The records were silent for complaints, diagnosis, or treatment for back problems. In August 2012, the Veteran presented to establish care at a VA medical facility. He disclosed to the primary care nurse that within the past year, he fell and sustained an injury when he tripped over a tool box. He indicated that he pulled a back muscle and used a back brace. He also disclosed smoking half a pack of cigarettes daily for approximately 70 years and quitting more than 7 years earlier [smoking from approximately 1935 to 2005]. On the same day, he told the primary care physician assistant that he had a history of smoking a pack per day for 40 years. Following a physical examination, a lumbar spine disability was not diagnosed. Subsequent VA treatment records dated to June 2014 list "low back pain" among the Veteran's active problems and characterize his low back as "stable," but do not document further complaints of low back pain or a diagnosed low back disability. The records also reflect ongoing evaluation and treatment for COPD/emphysema; they do not reflect diagnosis or treatment for asthma. During a January 2013 audiology evaluation, the Veteran stated that he worked on a Navy flight deck for four years and identified his post-service occupation as tugboat engineer. In correspondence received in November 2013, the Veteran reported that he was stationed in Hawaii for the duration of his World War II service and was exposed to asbestos at the Ford Island Naval Base [at Pearl Harbor], resulting in a serious breathing problem. In a statement accompanying the August 2014 substantive appeal, the Veteran acknowledged that the claim for breathing problems was denied because his breathing problems could not be attributed to asbestos exposure. However, he asserted that "there is no evidence to prove it was not," adding that he was "definitely in contact with asbestos" and "asbestos was present in the area" he served. He also emphasized the chronic nature of his COPD. Regarding his low back, he reported that he injured his back during boot camp and the back injury worsened throughout his service, but it was not until after service that he received treatment for his back trauma. He believed that VA examinations were required to decide the claims. Having carefully considered the medical and lay evidence and the Veteran's contentions, the Board finds that service connection for either a respiratory disorder or a back disorder is not warranted. Regarding the claimed respiratory disorder, Shedden element (1) is met because private and VA treatment records confirm that the Veteran has a current diagnosis of emphysema and COPD. See Shedden, supra. The Board notes, however, that the Veteran has not been diagnosed with asbestosis. "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." See McGinty v. Brown, 4 Vet. App. 428, 429 (1993). M21-1MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). With respect to Shedden element (2), the Veteran and his representative have argued that the Veteran was exposed to asbestos during service. As noted in the law and regulations section above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. Review of the Veteran's service treatment records is completely negative for any respiratory complaints or treatment. Additionally, his military occupational specialties (MOS) as a helicopter rigger is not the type of MOS typically associated with asbestos exposure, as noted above. The Board accordingly finds that the Veteran did not have any respiratory complaints in service, nor was there any evidence that he was exposed to asbestos in service. Thus, element (2) of Shedden has not been satisfied. See Shedden, supra. With regard to Shedden element (3), nexus, there is no indication other than the Veteran's own lay statements that his current respiratory disability had its onset in service or is otherwise related to service. Again, service treatment records were entirely silent for breathing problems and his service treatment and personnel records do not corroborate his claimed exposure to asbestos. In addition, while the medical evidence does not document the exact onset of the current respiratory disability, the Board reasonably infers from the evidence of record that the current disability began many years after service. For example, the Veteran has never asserted that emphysema or COPD symptoms initially manifested during military service. Also, he indicated in an August 2012 VA Form 21-4142 (Authorization and Consent to Release Information) that he began seeing his pulmonologist, Dr. Freudenberger, in May 1995, nearly 50 years after service. Finally, in his August 2014 substantive appeal, he argued that signs and symptoms due to asbestos exposure "may not appear for 10 to 40 years." In summary, the Board finds that the evidence does not support a nexus to service on the basis of in-service incurrence or any continuity of symptomatology. The claim for service connection for a respiratory disorder must be denied. As a final consideration, the Board observes that the Veteran's statements to private and VA treatment providers do reflect many decades of cigarette smoking and the cigarette ration card issued at military separation appears to document smoking during military service. To the extent that the Veteran may assert that his COPD was caused by smoking cigarettes during and after service, the Board notes that for claims received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. See 38 C.F.R. § 3.300 (2014). Turning to the claimed low back disability, the Board acknowledges that the Veteran is competent to provide lay evidence of reporting symptoms such as low back pain. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding the claimed low back disorder, the Board finds that service connection is not warranted because there is no evidence of a current low back disability. The Board reiterates that the Veteran's service treatment records are entirely silent regarding any low back injury or low back pain. Similarly, although the Veteran reported injuring his back during boot camp and experiencing progressively worse low back pain during his remaining three years of military service, his spine was documented as normal on separation examination in December 1945. In addition, the Board finds that the post-service medical evidence of record weighs against any finding of a chronic low back disability or symptoms of a low back disability since military service. Here, the private treatment records do not reflect complaints of low back problems and when the Veteran presented to a VA facility for treatment in 2012, he indicated that he pulled a back muscle when he tripped and fell within the past year. He did not attribute any current low back symptoms to any injury during boot camp 70 years earlier in 1942 or to his military service generally. These medical records are relevant to the issue of whether the Veteran experienced ongoing low back problems since a low back injury during boot camp as alleged, and the Board finds it reasonable to infer that he did not experience ongoing low back problems since the claimed injury or since discharge from service. See Kahana v. Shinseki, 24 Vet. App. 428, 438-41 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board, as factfinder, to draw a reasonable inference). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. Accordingly, where, as here, there is no competent medical evidence establishing that the Veteran has a current low back disability, the disability for which service connection is sought is not established, and thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the first essential criterion for a grant of service connection, evidence of a current low back disability, has not been met. In this regard, while the Veteran reported injuring his low back during boot camp while lifting 100 pound steel stacks, pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). For all the foregoing reasons, the Board finds that service connection for either a respiratory disorder or a low back disorder is not warranted. In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims and the evidence is not in relative equipoise, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a respiratory disorder, to include asthma and COPD, is denied. Entitlement to service connection for a low back disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs