Citation Nr: 1538187 Decision Date: 09/08/15 Archive Date: 09/18/15 DOCKET NO. 13-20 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left hand disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from July 1957 to July 1961 and from July 1961 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of February 2010 and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was processed in part, using the Virtual VA and the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. 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. Tinnitus is etiologically related to noise exposure in service. 2. Asbestosis is etiologically related to exposure to asbestos in service. 3. The Veteran does not have a current left hand disability. CONCLUSIONS OF LAW 1. Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110 , 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. Asbestosis was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 3. A left hand disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2014) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2015). Under the VCAA, 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claims for service connection for tinnitus and asbestosis. In a September 2009 letter, issued prior to the initial adjudication of the claim for service connection for a left hand disability, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter satisfied the duty to notify by informing the Veteran of the elements necessary to establish service connection and that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA records. The Veteran has not reported any private treatment. The Veteran was also provided a VA examination for his claimed left hand disability in November 2009. The Board finds that VA has complied with the VCAA's notification and assistance requirements and the appeal is ready to be considered on the merits. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2015). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2015). The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. 1154(a) (West 2014); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Once evidence is determined to be competent, the Board must then determine whether that competent evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2015). However, that does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Tinnitus The Veteran contends that his currently demonstrated tinnitus developed as a result of noise exposure in service, including from jets and other aircraft; heavy equipment, including elevators and test engines; guns on the weapons range; diesel and steam turbine engines; and explosives used to blow up aircraft carriers. Service treatment records are negative for any evidence of tinnitus during service or at the time of the Veteran's discharge. Nevertheless, the Veteran is competent to report noise exposure in service, and his service records, including his DD-214, show that he had the military occupational specialty (MOS) of Electrician's Mate and Fireman Thus, the Board finds that the Veteran's reports of noise exposure are credible and consistent with the circumstances of his service, and the acoustic trauma is deemed to have occurred. See 38 U.S.C.A. § 1154 (a), (b) (West 2014); 38 C.F.R. § 3.304(d) (2015). VA treatment records show complaints of tinnitus beginning in September 2009, and continued reports of tinnitus from 2009 to the present. The Veteran underwent a VA medical examination in November 2009. He reported noticing tinnitus while in service and claimed that it had gradually worsened through the years. He also claimed to have reported tinnitus as a problem to his physicians numerous times throughout the years. The examiner indicated that the Veteran had bilateral constant tinnitus. The examiner noted that the Veteran had normal hearing and no indication of tinnitus at discharge. He then opined that as tinnitus is often a symptom of hearing loss and there was no evidence of the Veteran developing hearing loss during service, the current tinnitus is less likely as not caused by or the result of noise exposure during military service. The Board finds that the November 2009 VA examiner's opinion is inadequate for evaluation purposes. In this regard, the Board notes that hearing loss and tinnitus are separate disabilities for VA compensation purposes, and the fact that there is no evidence of hearing loss related to active military service does not necessarily lead to the conclusion that currently demonstrated tinnitus is not related to noise exposure in service. The Board also notes that the absence of service treatment records showing in-service evidence of hearing loss or tinnitus is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of current tinnitus, and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for tinnitus. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Furthermore, service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303(d). Tinnitus is manifested by symptoms that the Veteran is competent to report. The Veteran has consistently reported in statements and on VA examination that he was exposed to noise from equipment, aircraft, and gunfire, during service. Therefore, the Board finds his reports credible. Furthermore, his reports of a continuity of tinnitus since service are competent evidence of a continuity of symptomatology. They provide a sufficient basis for establishing service connection. Davidson, Jandreau, Barr. He is competent to report the specifics of his injury, and his reports are supported by the findings that he has currently demonstrated tinnitus. There is evidence against the claim, inasmuch as the contemporaneous record does not document tinnitus for many years after active duty, and the November 2009 examiner provided an opinion against the claim. However, as noted above, the opinion has been found to be inadequate for evaluation purposes. Therefore, the Board finds that the evidence is, in at least equipoise. Resolving reasonable doubt in the appellant's favor, the claim for service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b) (West 2014). Asbestosis The Veteran contends that he has current asbestosis as a result of exposure to asbestos during his active military service in the U.S. Navy. He has specifically reported that he spent 10 years on the Navy and served on three different ships, where he spent most of his time in the engine room and the rewind shop, working on electric motors. He noted that he had a military occupational specialty (MOS) of Electrician's Mate. 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The above mentioned 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." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet.App. 523, 527 (1993); McGinty v. Brown, 4 Vet.App. 428, 432 (1993). 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 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. Occupational exposure to asbestos has been shown in insulation and shipyard workers and others. 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. VA must determine whether military records demonstrate evidence of asbestos exposure in service; 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. The Veteran's service records do not expressly show that he was exposed to asbestos during military service. However, personnel records reflect service aboard the USS Kearsarge; and his service records, including his DD-214, show that he had the military occupational specialty (MOS) of Electrician's Mate and Fireman. The USS Kearsarge was constructed during World War II. Notably, according to VA's Adjudication Procedure Manual varieties of asbestos were used extensively in military ship construction during World War II. See M21-1MR, Part IV, Subpart ii, Ch. 2, sec. C(9)(g). The Veteran has credibly reported he had in-service exposure to asbestos aboard the USS Kearsarge in service. Given his service aboard the USS Kearsarge, there is a likelihood (greater than 50 percent probability) that the Veteran was exposed to asbestos during his active military service. Thus, the Board finds that the Veteran's reports of exposure to asbestos are credible and consistent with the circumstances of his service, exposure to asbestos in service is conceded. See 38 U.S.C.A. § 1154 (a), (b) (West 2014); 38 C.F.R. § 3.304(d) (2015). Although the Veteran apparently did not seek treatment for respiratory complaints many years after his separation from military service, this is not inconsistent with the latent period for asbestosis. The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. See M21-1MR, Part IV, Subpart ii, Ch. 2, sec. C(9)(d). VA treatment records show that in September 2009, the Veteran had a chest CT as a part of an asbestos exposure study. He reported a history of exposure to asbestos in engine rooms in service. The study revealed bullous emphysematous changes associated with a pleural-based right lower lung mass, suggestive of primary lung carcinoma and mesothelioma, but no pleural calcifications were present. He had another CT of the chest in December 2009. The chest was unchanged and there was no evidence of pleural plaquing or signs of asbestosis. On CT scan in September 2010, there was evidence of minimal bibasilar pleural scarring. The Veteran was afforded a VA examination in February 2011. The examiner noted that chest X-rays showed no acute cardiopulmonary abnormality, and PFT studies revealed minimal obstructive lung defect and mild restrictive lung defect. However, there was no indication that a chest CT scan was performed in conjunction with the examination. The examiner concluded that despite the Veteran's subjective complaints, the were no objective findings to support a diagnosis of asbestosis. The examiner also opined that the diagnosed minimal obstructive lung defect and mild restrictive lung defect were of unknown etiology, but not caused by or related to the Veteran's military service. No rationale was given for this opinion. April 2011 treatment notes show that on CT scan in March 2011, there was evidence of a parenchymal scarring, which the VA physician noted was consistent with his diagnosis of asbestosis, given his extensive unprotected asbestos exposure in engine rooms in the U.S. Navy. The physician also noted that there is no treatment for asbestosis, per say, and that he had followed the Veteran for symptoms of lung disease associated with definite asbestos exposure, parenchymal scarring, diffusion impairments, and symptoms of dyspnea, and basilar crackles on physical examination. A VA physician noted in July 2013 that asbestosis is manifested by parenchymal scarring and not pleural scarring, however, the Veteran does have (albeit mild) parenchymal scarring also, mostly basilar and peripheral in location. July 2013 treatment records also note that the Veteran was exposed to asbestos as an electrician in the Navy, where he frequently had to go to the engine room, repair asbestos insulated cables and piping, and did actually tear out asbestos insulation during the 10 years of active duty from 1957-1967. It was also noted that he had developed pleural and parenchymal scarring, along with progressive dyspnea. The Veteran was given another CT of the chest in August 2013. He was diagnosed at that time with mild asbestos related pleural disease. The February 2011 VA examination did not include a CT scan of the Veteran's chest, which may have shown evidence of an asbestos-related disorder. As such, the Board finds that the examination is incomplete and does not contain enough information upon which to base a decision. Furthermore, evidence of asbestosis, including the March 2011 CT scan and VA treatment records dated later in 2011 and 2013, noted above, was submitted after the February 2011 VA examination. Therefore, the Board finds that the February 2011 VA examiner was not able to consider all of the Veteran's history or complaints related to his treatment for asbestosis, and therefore, his negative opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran is competent to report observable symptoms of a lung disorder such as difficulty breathing; however, he is not competent to diagnosis the particular lung disorder, to include whether it is asbestos-related. Rather, these matters require medical training or expertise due to the complex nature of lung disorders and particularly the diagnosis of asbestos-related disease, as well as the Veteran's unique medical history. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has consistently reported in statements and on VA examination that he was exposed to asbestos during service, and as noted above, his service MOS shows that was likely exposed to asbestos. Therefore, the Board finds his reports credible. Furthermore, his reports of a continuity of respiratory problems since service are competent evidence of a continuity of symptomatology. They provide a sufficient basis for establishing service connection. Davidson, Jandreau, Barr. He is competent to report the specifics of his injury, and his reports are supported by the findings that he has currently been diagnosed with an asbestos-related lung disorder by a VA physician. There is evidence against the claim, given that the February 2011 examiner provided a negative opinion as to the presence of asbestosis. However, as noted above, the opinion has been found to be inadequate for evaluation purposes. Therefore, the Board finds that the evidence is, in at least equipoise. Resolving reasonable doubt in the appellant's favor, the claim for service connection for asbestosis is granted. 38 U.S.C.A. § 5107(b) (West 2014). Left Hand Disability The Veteran contends that he has a current left hand disability as a result of breaking his left hand in service. Service treatment records are negative for complaints, treatment or a diagnosis of a left hand injury or disability during service. They do show that the Veteran had a superficial infection of the left index finger in June 1966, which resolved with no further treatment. No left hand disability was noted at the time of the Veteran's discharge. The post-service treatment records, which consist of outpatient treatment records from the VA Medical Center in Biloxi, are negative for any evidence of a diagnosed left hand disability. The Veteran's wife submitted a statement in October 2009, indicating that the she was aware of the Veteran injuring his fingers, wrists and forearm several times on the right and left sides in service. On VA examination in November 2009, grip strength was 5/5 and equal, the hand was nontender to palpation, there was normal sensation to pinprick and light touch, range of motion of the fingers was normal, and X-rays of the left hand did not reveal any abnormalities. No left hand disability was diagnosed, and the examiner concluded that there were no objective findings to support a diagnosis of injury of the left hand while in service. There is no other evidence of record, VA or private, showing that the Veteran has been treated for or diagnosed with a left hand disability during or after service. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). The Veteran is competent to report that he sustained a left hand injury in service and has continued to experience symptoms related to that injury since, and his wife is competent to report what she was told by the Veteran and what she observed. However, an underlying current disability has never been identified during the appeal period. Pain without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted). Sanchez-Benitez v. West, 13 Vet App 282 (1999). While the Veteran and his wife are competent to report observable symptoms, neither has specifically identified what residuals of the Veteran's claimed in-service injury he currently has. There are no other findings of a current underlying left hand disability in the record. To the extent that the Veteran is asserting that he has a disability related to a left hand injury in service, whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not reported any contemporaneous diagnosis, nor has a medical professional diagnosed any condition related to his left hand. Moreover, the Veteran himself has not identified any specific disability related to his left hand. Thus, the Board finds that there is no competent lay evidence of a current diagnosis related to the Veteran's left hand, and the only competent evidence fails to establish a current disability. Alternatively, even if the Veteran's assertions were competent, the Board finds that the VA examiner's findings regarding a lack of a current diagnosis related to the Veteran's left hand is the most probative evidence of record as to this issue. In light of the absence of any competent evidence of a current chronic left hand disability, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for tinnitus is granted. Service connection for asbestosis is granted. Service connection for a left hand disability is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs