Citation Nr: 1613095 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 09-49 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for fibrosis of the lungs, claimed as due to asbestos exposure. 2. Entitlement to service connection for vocal cord paralysis, status post left thyroplasty, claimed as due to asbestos exposure. 3. Entitlement to service connection for cardiovascular disease, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1968. This matters comes on appeal before the Board of Veterans' Appeals from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In a November 2008 rating decision, the RO denied service connection for fibrosis of the lungs. In a February 2009 rating decision, the RO denied service connection for vocal cord paralysis. In a June 2010 rating decision, the RO denied service connection for cardiovascular disease. In July 2013, the Board remanded the case to the RO for the development of additional evidence. The RO developed additional evidence in response to the Board's remand instructions. With respect to the issues of service connection for vocal cord paralysis and cardiovascular disease, the assembled evidence is adequate to proceed with review. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during service. 2. The Veteran's vocal cord paralysis became manifest many years after service, and is not related to service to include asbestos exposure during service. 3. The Veteran's cardiovascular disease became manifest many years after service, and is not related service to include his asbestos exposure during service. 4. Pulmonary fibrosis is related to service. CONCLUSIONS OF LAW 1. The Veteran's vocal cord paralysis and ongoing vocal impairment status post left thyroplasty were not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The Veteran's cardiovascular disease was not incurred or aggravated in service, may not be presumed to be service connected. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 3. Pulmonary fibrosis was incurred in service. 38 U.S.C.A. § 1110. (West 2014) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). VA satisfied the duty to notify provisions in letters issued in March 2008 and January 2010. In those letters, VA advised the Veteran what information was needed to substantiate claims for service connection. VA also advised him how VA assigns disability ratings and effective dates. The Veteran's claims file contains service medical records, post-service medical records, and reports of VA medical examinations. In the July 2013 Board remand, the Board instructed the RO to obtain records from the Veteran's claim for disability benefits from the United States Social Security Administration (SSA), and to provide him a VA medical examination addressing the likely etiology of his cardiovascular disease. His SSA records were added to the claims file. He underwent a VA cardiovascular examination in January 2014. The RO complied with the instructions in the Board's remand. No additional remand is needed with respect to those instructions, nor with respect to the issues of service connection for vocal cord paralysis and cardiovascular disease. Additional remand is needed, however, with respect to the issue of service connection for fibrosis of the lungs. The Veteran was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Vocal Cord Paralysis The Veteran reports that he was exposed to asbestos during service. Many years after service he received treatment for hoarseness and speech impairment. He was found to have vocal cord paralysis. Problems have continued after surgery to address it. He contends that the disorder is due to the asbestos exposure during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for 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); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service records corroborate his report that his duties were as a boiler technician aboard a ship. He served aboard a ship for more than three years out of his four years of service. He stated that he was exposed to asbestos dust during his regular work in the boiler room. He related that his duties included installing, maintaining, and repairing asbestos insulation. He submitted records from his time on the ship, and pointed out on those records photographs of asbestos on pipes and in boilers in the areas where he worked. The Veteran worked near and with asbestos. Under those circumstances it is likely that his exposure to asbestos residue at times included exposure to airborne asbestos particles. The evidence is sufficient to establish that he was exposed to asbestos during service. The Veteran's service medical records reflect that he went to sick call for a cough on one occasion and a sore throat on another occasion. There were no reports of any problems involving his vocal cords or speech. On examination in October 1968 for separation from service, the examiner checked "normal" for the condition of his mouth and throat. Private treatment records reflect findings of hypothyroidism from at least as early as 1999. From 2001, the Veteran reported episodes of hoarseness. From 2004, he related severe hoarseness and difficulty speaking audibly. In 2004, a physician found paralysis of the left vocal cord. In February 2006, the Veteran underwent surgery including thyroplasty. He later reported ongoing difficulty speaking. On VA examination in December 2008, the Veteran reported that around 2005 he began to experience hoarseness, to the extent that he could only whisper. He related that after he underwent and recovered from thyroplasty he could speak above a whisper, but he had ongoing problems. He indicated that his throat felt scratchy, that it required a lot of effort to speak, and that he could not raise his voice. The examiner reported having reviewed the claims file and having reviewed medical literature. The examiner provided the opinion that it is less likely than not that exposure to asbestos caused the Veteran's vocal cord paralysis. She explained that vocal cord paralysis may be caused by head trauma, stroke, neck injury, tumor, or viral infection. She indicated that she did not find in the medical literature any evidence suggesting that asbestos exposure causes vocal cord paralysis. The Veteran has current vocal cord disability. That disability did not become symptomatic during service; it arose long after service. He was exposed to asbestos during service. The VA clinician who examined him in 2008 concluded that there is no medical evidence that, in general, asbestos exposure can lead to vocal cord paralysis, so it is unlikely that the Veteran's asbestos exposure is causally related to his vocal disorder. The examiner's opinion and explanation are persuasive. There is no medical record supporting a connection between the asbestos exposure and the vocal disorder. Although we have considered the lay opinion, the Veteran's assertion of a relationship to asbestos is not competent and there are no Jandreau exceptions. The preponderance of the evidence is against a nexus between the asbestos exposure and the vocal cord disorder, and so is against service connection. Cardiovascular Disease The Veteran currently has cardiovascular disease. Diagnoses have included coronary artery disease (CAD), congestive heart failure (CHF), and mitral regurgitation. He contends that his cardiovascular disease is attributable to his asbestos exposure during service. Service connection for certain chronic diseases, including cardiovascular-renal disease, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service of ninety days or more during a period of war. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran has not suggested that he had signs of or treatment for cardiovascular disease during service or the year following his separation from service. Here, cardiovascular disease was not noted during service or within one year. Rather, at separation, the heart and vascular system were normal. The Veteran does not contend, and his service records do not suggest, that he served in Vietnam or was exposed to herbicides during service; so there is no basis to presume service connection for heart disease based on herbicide exposure during service. The Veteran's service medical records do not contain any findings of cardiovascular problems. On examination in October 1968 for separation from service, the examiner checked "normal" for the condition of his heart and vascular system. Private treatment records show that in 1999 the Veteran had myocardial infarction and cardiac arrest, and underwent coronary artery bypass graft (CABG) surgery. He has continued in cardiological treatment. Physicians have diagnosed CAD, CHF, and mitral regurgitation. On VA examination in January 2014, the Veteran related his post-service history of cardiac arrest and subsequent cardiological treatment. The examining physician reported having reviewed his claims file and having reviewed medical literature. She noted his heart disease and treatment history and summarized medical literature about heart disease and asbestos-related disease. She expressed the opinion that the Veteran's cardiovascular disease is not caused by, a result of, or aggravated by his exposure to asbestos. She explained that the Veteran had other risk factors for heart disease, and that on review of medical literature she did not find evidence supporting any association between asbestos exposure and the development of any cardiac disease or condition. The Veteran's current cardiovascular disease did not become symptomatic during service; it arose long after service. He was exposed to asbestos during service. The VA physician who examined him in 2014 noted that medical literature review did not support a relationship between asbestos exposure and cardiovascular disease. She found that the Veteran had risk factors for cardiovascular disease. On those bases, she opined that his asbestos exposure did not cause and has not aggravated his heart disease. The opinion and explanation she provided are persuasive. There is no medical record supporting a connection between his asbestos exposure and his cardiovascular disease. Although we have considered the lay opinion, the Veteran's assertion of a relationship to asbestos is not competent and there are no Jandreau exceptions. The preponderance of the evidence is against a nexus between his asbestos exposure and his cardiovascular disease, and so is against service connection. Pulmonary fibrosis The Veteran has pulmonary fibrosis. The issue is whether the fibrosis is due to in-service or post service exposure. Here, the appellant had a remarkable amount of exposure; the appellant actually handled asbestos. Post service, he worked in a facility that had asbestos. We are unconvinced that being in a facility that contains asbestos is more likely to result in exposure than having a military occupational specialty that actually involves handling the substance. There is no doubt to be resolved and service conection is granted. ORDER Service connection for fibrosis of the lungs is granted. Service connection for vocal cord paralysis, status post left thyroplasty, is denied. Service connection for cardiovascular disease is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs