Citation Nr: 1456754 Decision Date: 12/30/14 Archive Date: 01/09/15 DOCKET NO. 10-12 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for asbestosis. 3. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2014, the Veteran presented sworn testimony during a personal hearing in Montgomery, Alabama, which was chaired by the undersigned Veterans Law Judge. In an October 2014 letter, the Veteran was notified that the Board was unable to reproduce a written transcript of the hearing; he was offered the opportunity to appear at another hearing. However, in October 2014, the Veteran responded that he did not wish to appear at another Board hearing and requested the Board proceed to consider his case on the evidence of record. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the currently diagnosed COPD is as likely as not related to his active duty service. 2. The Veteran is not currently diagnosed with asbestosis. 3. It is not shown that the Veteran served in the Republic of Vietnam or was exposed to an herbicide agent during his active service. 4. Diabetes mellitus, type II, was not manifested in service or until years later and is not otherwise attributable to the Veteran's active service. CONCLUSIONS OF LAW 1. COPD was incurred in the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5103A (West 2014); 38 C.F.R. § 3.303 (2014). 2. Asbestosis was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. § 3.303 (2014). 3. Diabetes mellitus, type II, was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By a letter dated in March 2007, the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service and private treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran was afforded a VA examination in October 2009 in order to address the pending COPD and asbestosis claims. The examination report contains sufficient evidence by which to decide the claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the October 2009 VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board recognizes that a medical opinion was not obtained as to the claimed diabetes mellitus, type II. However, such opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but rather: 1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that a 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 also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is no competent evidence of diabetes mellitus, type II, until decades after service, or of a relationship between the diabetes mellitus, type II, and the Veteran's active duty-or a service-connected disability. Duenas v. Principi, 18 Vet. App. 512 (2004). Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, generally, there must be 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 Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular were later included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (M21-1). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000. The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in manufacturing and servicing of friction products such as clutch facings and brake linings, and other occupations. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also, of significance, is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21(b). The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service, and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). a. COPD Here, the Veteran asserts that he suffers from COPD that was incurred during his military service. See, e.g., the Veteran's VA Form 9 dated March 2010. Specifically, he maintains that he developed COPD as a result of in-service asbestos exposure. Id. The Board has thoroughly reviewed the record and concludes that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed COPD was incurred during his active duty service. The Veteran served on active duty from May 1961 to May 1965. His service personnel records show that he served as an engineman aboard the U.S.S. CHICKASAW, a ship constructed during World War II. As his military duties would likely have required the type of work associated with an increased risk for exposure to asbestos, the Board finds that the Veteran was exposed to asbestos during active service. STRs dated in February 1963 and December 1964 documented complaints of a cough associated with an upper respiratory infection. Chest x-rays dated in June 1962 and February 1965 were negative for abnormalities. The Veteran's May 1965 separation examination did not indicate any respiratory disabilities. Private treatment records dated in January 1995 show that the Veteran suffered from a "chronic intermittent nonproductive cough." It was further noted that he had smoked for twenty-five years. Intermittent occupational exposure to asbestos following military service was also reported. A diagnosis of 'pulmonary asbestosis' was indicated. The treatment provider explained, "[t]he diagnosis 'pulmonary asbestosis' means that this individual is suffering from an abnormality of the parenchymal lung tissue consistent with interstitial fibrosis as a result of exposure to asbestos products." Private spirometry performed in October 2009 documented a moderate obstructive lung defect. The Veteran was afforded a VA examination in October 2009 at which time the examiner confirmed a diagnosis of COPD and noted the Veteran's report of a shortness of breath and a cough productive of yellow phlegm dating from his military service. The examiner acknowledged the Veteran's history of smoking, as well as, possible civilian asbestos exposure; however, he concluded that, the currently diagnosed COPD "is as least as likely as not caused by or a result of military service." The Board finds that the October 2009 VA examiner's opinion appears to have been based upon a thoughtful analysis of the Veteran's entire history and current medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the currently diagnosed COPD is a result of the Veteran's military service. The benefit of the doubt rule is therefore for application as to this issue. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2014). The Board will resolve this reasonable doubt in the Veteran's favor and finds that the evidence supports the grant of service connection for COPD. See 38 U.S.C.A. § 5107 (West 2002). b. Asbestosis The Veteran also asserts that he has asbestosis as a result of exposure to asbestos during his military service. As noted above, in-service asbestos exposure is conceded. The Veteran's STRs do not discuss any complaint or diagnosis of asbestosis. As described above, the Veteran was diagnosed with pulmonary asbestosis in January 1995 at which time his private physician explained that the diagnosis was based upon "an abnormality of the parenchymal lung tissue consistent with interstitial fibrosis as a result of exposure to asbestos products." A chest-x-ray conducted at the time demonstrated "[f]indings compatible with pulmonary asbestosis." See the report of Dr. R.S.K. dated January 1995. A chest x-ray conducted contemporaneous with the October 2009 VA examination were negative for asbestosis. As such, the examiner indicated that there was "insufficient evidence to warrant an acute diagnosis" of asbestosis. Crucially, the Veteran has not presented any current medical evidence to contradict the conclusions of the October 2009 VA examiner. See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim of entitlement to VA benefits). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is cognizant that the Veteran was diagnosed with pulmonary asbestosis in January 1995, the record does not indicate that he has been diagnosed with asbestosis at any time during the appeal period. Rather, as indicated above, the evidence indicates that the Veteran is now diagnosed with COPD due to asbestos exposure. Crucially, the October 2009 VA examiner determined that the Veteran does not have currently have asbestosis. The Veteran is competent to testify as to shortness of breath, as those symptoms are readily observable by a layperson without the requirement of medical training. Layno v. Brown, 6 Vet. App. 465 (1994). However, he has not been shown to be a medical professional and is not competent to render a medical diagnosis. See Jandreau, 492 F.3d at 1376-1377 (layperson competent to identify simple conditions such a broken leg, but not complex conditions such as cancer). Critically, a specific diagnosis, such as differentiating between COPD and asbestosis, requires specialized medical training and expertise to properly identify, and is, therefore, not capable of lay observation. See Jandreau, 492 F.3d at 1376-1377 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Accordingly, the probative value of the assertions of the Veteran that he has asbestosis is greatly outweighed by the objective medical evidence of record. See Jandreau supra & Buchanan supra. Additionally, a chronic disability was not shown to exist immediately prior to the Veteran's pursuit of VA benefits so as to trigger the need for additional inquiry as to whether that disability was still in existence at the time his claim was filed. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). To the extent the Veteran was diagnosed with pulmonary asbestosis in January 1995, the Board considers the time difference too remote to constitute a current disability for his claim that was filed in March 2007, particularly given that the subsequent VA examination showed no evidence of asbestosis upon chest x-ray. Consequently, the current disability element of the claim is not met and service connection for asbestosis is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Veteran does not exhibit a current diagnosis of asbestosis. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Veteran's claim of entitlement to service connection for asbestosis is denied. c. Diabetes mellitus, type II In this matter, the Veteran contends that he has diabetes mellitus, type II, which is related to his military service. Specifically, he asserts that he developed diabetes mellitus as a result of herbicide exposure during his active duty service. To this end, the Board notes that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service-connected. Those diseases include diabetes mellitus, type II. See 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.309(e) (2014). For the reasons set forth below, the Board concludes that service connection is not warranted. Notably, the Veteran has not contended, nor does the record show, that his diabetes mellitus symptomatology manifested during his military service. Indeed, his STRs show no treatment for, or diagnosis of, diabetes mellitus or related complaints. Moreover, the May 1965 service separation examination was absent any complaint, or finding, of diabetes mellitus. Rather, the Veteran argues that he was exposed to herbicides while he was serving aboard the U.S.S. CHICKASAW, as well as, the Y0115 in Japan attached to Mobile Support Unit 3. See, e.g., the Veteran's claim dated March 2007. The Veteran has specifically contended that these were 'blue water' ships and has not asserted any 'inland' or 'brown water' service. Id. Critically, any such 'blue water' service is not included as "service in the Republic of Vietnam," and does not afford the Veteran a presumption of exposure to herbicides. See the comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed. Reg. 23166 (May 8, 2001) (which find that service in deep-water naval vessels (i.e. "Blue Water" service) offshore of Vietnam, as opposed to service aboard vessels in inland waterways of Vietnam (i.e. "Brown Water" service), is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases). Additionally, the Veteran has not contended that he 'set foot' in the Republic of Vietnam. See 38 C.F.R. §§ 3.307(a), 3.313(a) (2014). Moreover, the National Personnel Records Center (NPRC) has confirmed that there are no records of exposure to herbicides based upon the Veteran's naval service. Consequently, herbicide exposure during the relevant time period cannot be documented. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). Thus, the Veteran's alleged exposure to Agent Orange remains unsubstantiated. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). To the extent that the Veteran is arguing that he was exposed to herbicides during his naval service, it appears that his contentions amount to speculation on his part. Further, neither the Veteran nor his representative has specifically identified any evidence beyond the Veteran's conjecture that would indicate herbicide exposure. In short, there is no competent and probative evidence that the Veteran was exposed to herbicides during his active duty. Accordingly, based on this record, the Board finds that herbicide exposure has not been shown. Therefore, the Board finds that the Veteran's claim for service connection for diabetes mellitus type II, is not within the purview of 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 , 3.309(e) based on herbicide exposure. The evidence of record does not support the contentions that the Veteran's diabetes mellitus is related to his military service. As indicated above, there is no evidence that the Veteran suffered from diabetes mellitus during his military service. Notably, the earliest diagnosis of diabetes mellitus noted in the record is dated in January 1995, which indicated that the Veteran was a "diabetic on insulin." Accordingly, there is no evidence to suggest that the Veteran was diagnosed with diabetes mellitus, type II, for years after his separation from service, and there is no evidence or allegation the disease became manifest to a compensable degree within the first year after discharge from service. Thus, presumptive service connection for a chronic disability under 38 C.F.R. § 3.303(a) is not available. The Veteran has not asserted, nor does the evidence show, that he had continuous symptoms since his separation from service, so consideration of service connection as a chronic disorder under 38 C.F.R. § 3.303(b) is also not applicable. Moreover, no medical professional has suggested that the Veteran's diabetes mellitus, type II, is related to his military service, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such medical evidence or opinion. In short, there is no competent evidence to support the claim. To the extent the Veteran relates his diabetes mellitus to service (to include herbicide exposure), the Board finds that such is not competent evidence. The matter of a nexus between a current disability such as diabetes mellitus type II, and service is (in the absence of continuity of symptomatology which the Veteran is not alleging) a question that is beyond lay observation. See Jandreau, 492 F.3d at 1377. Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis. Hickson v. West, 12 Vet. App. 247, 253 (1999). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran's claim of entitlement to service connection for diabetes mellitus, type II, is therefore denied. ORDER Entitlement to service connection for COPD is granted. Entitlement to service connection for asbestosis is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ SONNET BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs