Citation Nr: 1503713 Decision Date: 01/27/15 Archive Date: 02/09/15 DOCKET NO. 12-02 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for fungal infection of the hands. 4. Entitlement to service connection for fungal infection of the feet. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1958 to May 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010 and May 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge in December 2014. A transcript of this hearing was prepared and associated with the claims file. The Board has reviewed the Veteran's electronic claims files (in both Virtual VA and the Veterans Benefits Management System). 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). The issues of entitlement to service connection for fungus of the hands and feet are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In the January 2010 rating decision, VA conceded that the Veteran was exposed to asbestos while serving as a Damage Controlman/Fireman on the USS Randolph. 2. The probative evidence does not demonstrate that the Veteran's currently diagnosed COPD, manifested during, or as a result of, active military service, to include asbestos exposure. 2. The probative evidence does not demonstrate that the Veteran's currently diagnosed asthma manifested during, or as a result of, active military service, to include asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for COPD have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307 (2014). 2. The criteria for a grant of service connection for asthma have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, 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). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in September 2009 that fully addressed all notice elements and was sent prior to the initial AOJ decisions in these matters. The letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. The letters also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Under the circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits, such as obtaining service treatment records and VA medical records, and providing the Veteran with a VA examination in November 2011. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claims of service connection for COPD and asthma that has not yet been obtained. As previously discussed, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge at a hearing in December 2014. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned noted the issues on appeal and solicited information regarding the occurrence of injuries and onset and nature of his symptomatology. The Veteran was advised of the type of evidence that could be identified or submitted to further substantiate the claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted or requested. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims of service connection for COPD and asthma. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Legal Criteria The Veteran contends that he is entitled to service connection for a respiratory condition, to include COPD and asthma. He attributes his respiratory conditions to in-service exposure to asbestos. 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. § 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); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). 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. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 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. VA has, however, 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. 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 M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR 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 M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not necessarily accorded to each piece of evidence contained in the record; every item of evidence does not necessarily have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Analysis Turning to the evidence of record, the Veteran's service treatment records are void of any treatment or diagnoses of any respiratory condition, to include COPD and asthma. Additionally, the June 1960 and November 1961 photofluorography chest x-rays were noted to be negative. Lastly, the Veteran's April 1962 separation examination listed the Veteran's lungs and chest as normal. Specifically, the Veteran reported that he served on ships and was exposed to asbestos materials. Additionally, he stated that he served in the US Navy as a carpenter and apprentice on a ship. The Veteran's service personnel records revealed that he served as a Damage Controlman/Fireman on the USS Randolph while in service. The Board notes that in this case VA has determined, based on the evidence of record, that the Veteran was exposed to asbestos in-service. VA treatment records show diagnoses and treatment for COPD and asthma. VA treatment records show that the Veteran reported that he quit smoking in 1990. Additionally, in a May 2007 record, a VA physician noted that the Veteran reported occupational exposure to asbestos and that he was a past smoker. A July 2009 chest x-ray was obtained, which revealed linear scarring on the right upper lobe and bilateral apical scaring with flattening of the diaphragms and with changes related to COPD. At that time, the Veteran was diagnosed with COPD, which the physician noted was gradually worse and with a history of asbestos exposure. In August 2009, the Veteran complained of asthma and pulmonary function testing was completed, which showed mild obstructive lung disease with small airway disease and improvement in the expiratory flow with bronchodilator. At that time, a diagnosis of mild obstructive lung disease with small airway disease was noted. The Veteran was afforded a respiratory VA examination in November 2011. The examiner noted respiratory diagnoses of asthma and COPD. The examiner noted that the Veteran believed his asthma and COPD were due to or a result of asbestos exposure while in service. After examining the Veteran, the examiner concluded that the Veteran's asthma and COPD were less likely than not caused by or a result of asbestos exposure while in the service. The examiner stated that that the Veteran's pulmonary function test was consistent with moderate to severe obstructive disease and he was a prior smoker for 30 years. Additionally, the examiner stated that the CT scan of the Veteran's chest and CXR were consistent with COPD. The examiner further stated that this was not related to changes consistent with prior asbestos exposure, although the Veteran described service occupational exposure to asbestos. Lastly, the examiner stated that most likely the Veteran's symptoms and COPD/asthma were due to prior tobacco use based on the weight of the current medical literature. At the December 2014 hearing, the Veteran testified to his in-service job description while on the USS Randolph. He reported working with firefighter equipment, a pipe shop, the CO2 transfer shop, and in boiler rooms. The Veteran stated that he began to seek treatment for his respiratory issues approximately eight to nine years ago when he had his first asthma attack, but realized he was having trouble about three or four years before that time. He also reported that he smoked approximately 25 to 30 years, but that it was not continuous; he quit for time periods throughout his life. The Veteran reported that he was told by his physician that his condition was a combination of the years of smoking and his time aboard the ship. The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for COPD and asthma. Although he has current diagnoses of COPD and asthma, the existing probative medical evidence does not show that these disabilities were manifested in service or are otherwise related to service. Concerning in-service incurrence, the Veteran's service treatment records and in-service examination reports are completely unremarkable for any relevant complaints, treatment, or diagnosis of COPD, asthma, or any other respiratory condition. Specifically, the Veteran's lungs/chest were listed as normal at the April 1962 separation examination. This is probative evidence against the notion that the Veteran has COPD and asthma as a direct result of disease or injury incurred in or aggravated by his military service. See Struck v. Brown, 9 Vet. App. 145 (1996). The Veteran has also failed to provide any objective indication of a respiratory condition until documented in an October 2003 VA treatment record, more than four decades after his military service ended. Additionally, at the hearing, the Veteran testified that he began to seek treatment for his respiratory issues approximately eight to nine years ago, and started to have respiratory trouble about three or four years before that time. The lapse of so many years after his separation from service and the first documented suggestion of this claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While there is medical evidence showing diagnoses of COPD and asthma, there is no probative medical evidence of record etiologically linking these disabilities to the Veteran's military service. As previously mentioned, the November 2011 VA examiner concluded that the Veteran's asthma/COPD were less likely than not caused by or a result of asbestos exposure while in the service. Additionally, the examiner noted that the Veteran's COPD was not related to changes consistent with prior asbestos exposure, although the Veteran described service occupational exposure to asbestos. Lastly, the examiner stated that most likely the Veteran's symptoms and COPD/asthma were due to prior tobacco use based on the weight of the current medical literature. The November 2011 VA examiner's opinion noted above is based on review of the claims folder, including the Veteran's service treatment records, and his opinion thoroughly discuss the Veteran's pertinent in-service and post-service medical records. The VA examiner offered a detailed explanation for the opinion rendered that incorporates both the facts of the Veteran's case and the pertinent medical principles. During the examination, the Veteran provided the examiner with a description of his in-service job duties and current respiratory symptoms. Given the VA examiners' access to the claims folder and the thoroughness and detail of the opinion, the Board finds this opinion to be highly probative in determining whether service connection for COPD and asthma is warranted. The Board has carefully considered the Veteran's assertions that he has COPD and asthma as a result of in-service asbestos exposure. However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on the complex medical question of whether his COPD and asthma had their onset in service or is a result of active duty service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Contrary to the Veteran's assertions and as stated in the November 2011 VA examination report above, the competent evidence establishes that the Veteran's COPD and asthma were also not a result of an in-service incident, but related to his 30 year history of smoking. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service, and the Veteran is sincere in his belief that he has COPD and asthma that are related to his time in service. The Board has also carefully considered the benefit of the doubt rule, but as the preponderance of the evidence is against the claims, the evidence is not in equipoise, and there is no basis to apply it. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for COPD is denied. Service connection for asthma is denied. REMAND Although the Board regrets the additional delay, further development is needed prior to the disposition of the claims for service connection for fungal infection of the hands and feet. The Veteran contends that his fungal infections of the hands and feet are the result of in-service shower floors and the use of Alkaline soap. Additionally, VA treatment records show that the Veteran complained of having a fingernail fungal infection. VA treatment records show diagnoses of and treatment for onychomycosis and tinea. The Veteran testified that he first experienced fungal infections in 1960. He reported that the skin on his feet kept peeling off. He also reported that his toenails started getting thick and had infections/fungus. He said that when he was aboard the ship, they called it jungle rot. He also reported that he continued to have the same problems over the last 50 years. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains 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); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran is competent to report the skin symptoms he experienced during and after service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although the Veteran reported skin/fungal symptomatology in-service and VA treatment records show that the Veteran is currently being treated for skin/fungal conditions, the VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's skin/fungal conditions. A VA examination and medical opinion regarding a diagnosis and etiology of the Veteran's fungal infections is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, the Board notes that a remand is also necessary to obtain any outstanding VA treatment records. The Veteran was receiving ongoing treatment at a VA medical facility for his skin/fungal condition. The claims file only contains VA treatment records through October 2010. Because it appears that there may be outstanding VA medical records after October 2010 that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1) The AMC should obtain any of the Veteran's outstanding VA treatment records from October 2010 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. 2) After the following, the RO should schedule the Veteran for a VA examination to determine whether his current fungal conditions of the hands and feet, to include onychomycosis and tinea, are related to his active service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies should be performed, and all findings should be reported in detail. The examiner should diagnose all current fungal/skin conditions of the hand and feet. Additionally, the examiner should opine whether any currently-diagnosed fungal/skin condition of the hands or feet are at least as likely as not (50 percent or greater probability) related to his active military service, to include from in-service shower floors and the use of Alkaline soap. The examiner should review and discuss the Veteran's service treatment records, VA treatment records, hearing testimony, and the Veteran's lay statements when rendering an opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, the AMC should readjudicate the Veteran's claims. The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs