Citation Nr: 1640987 Decision Date: 10/19/16 Archive Date: 11/08/16 DOCKET NO. 06-15 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for residuals of jaw and throat injuries. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1955 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the VA Regional Office (RO) in Reno, Nevada. The Veteran testified at a hearing conducted before a Decision Review Officer (DRO) in November 2005. The case was remanded in May 2009 and January 2011 to afford the Veteran his requested hearing before a Veterans Law Judge (VLJ). In January 2014, the Veteran testified at a hearing conducted before the undersigned. Transcripts of both hearings have been associated with the claims file. The case was remanded in March 2014 to afford the Veteran VA examinations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of service connection for hypothyroidism, shingles, adenocarcinoma of the head and neck, and headaches were included in the Board's March 2014 remand. Following the requested development, service connection for those issues was granted in a June 2016 rating decision. As such, those issues are no longer on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has not had residuals of jaw and throat injuries at any time since filing his claim for compensation. 2. COPD was not present during the Veteran's service and did not develop as a result of any incident during service. CONCLUSIONS OF LAW 1. Residuals of jaw and throat injuries were not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). 2. COPD was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist 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 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case (SSOC)). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, a May 2004 letter was provided to the Veteran in accordance with 38 C.F.R. § 3.159(b)(1). Although the letter did not notify him of the criteria for assigning disability evaluations and effective dates, as the claims are being denied, any question as to the disability evaluations and effective dates is moot. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that the VLJ who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c) (2015). These duties consist of 1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here during the hearing the undersigned VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked, or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and no prejudice has been identified in the conduct of the Board hearing. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's separation examination and post-service medical records were obtained. An August 2004 report from the National Personnel Records Center (NPRC) indicates that the Veteran's service treatment records (STRs) were among those destroyed in a 1973 fire at the NPRC. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. See Russo v. Brown, 9 Vet.App. 46 (1996). Pertinent VA examinations were obtained in April 2016. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). 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, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board notes that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). As to asbestos-related diseases, there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the Court and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. 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 Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis (IPF), or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). 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. Id. at Subsection (h). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty at 429. M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Neither the Manual nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999). See also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 1. Residuals of Jaw and Throat Injuries The Veteran's October 1957 separation examination revealed a clinically normal head, mouth, and throat. It shows that he had three restorable teeth on the bottom; there is no indication that the Veteran had any missing teeth or that any teeth had been replaced by dentures. The Veteran testified at the November 2005 DRO hearing that a ring blew off a tire and hit him in the left side of his face, breaking some of his top teeth. November 2005 Hearing Transcript (H.T.) at 12. He testified that that incident was "moot" because he no longer had his jaw. Id. At the Veteran's January 2014 hearing, he testified that he was hit in the right side of the jaw by a pair of pliers during service. January 2014 Hearing Transcript (T.) at 8. He testified that all of his teeth on the top were pulled as a result of that injury. Id. Subsequently, in March 2016, the Veteran submitted a copy of the 2014 transcript in which he changed his description of the injury to read that he was hit by a lock ring that held the tire to the wheel as opposed to a set of pliers. Post-service treatment records have not shown any diagnosed residuals from the Veteran's reported injury. The Veteran was provided a VA examination in April 2016. He was diagnosed with adenocarcinoma of tongue, palate, and salivary gland as well as sinusitis. No residual disability from the reported in-service injury was diagnosed. Based on a review of the evidence, the Board concludes that service connection for residuals of jaw and throat injuries is denied. The Board finds that the Veteran is competent and credible to report his in-service injury. While the Veteran reported losing his top teeth, his separation examination did not show any missing or replaced teeth; it only showed restorable teeth on the bottom. Current chronic residuals from such injury have not been shown at any time since the claim for service connection. The overall evidence of record weighs against a finding that the Veteran has currently diagnosed residuals. Indeed, the Veteran himself testified that the issue was "moot" as a result of treatment for his adenocarcinoma. In this case, none of the Veteran's post-service treatment records have shown any disability associated with his reported in-service injury. The Veteran has been afforded a VA examination and was only diagnosed with adenocarcinoma and sinusitis. As noted in the Introduction, the Veteran has been granted service connection for adenocarcinoma and sinusitis. No other jaw or throat disorder has been shown, let alone one associated with the service-connected adenocarcinoma. See 38 C.F.R. § 3.310. Consequently, the evidence fails to support a finding that the Veteran currently has, or has ever had, residuals of jaw and throat injuries since filing his claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131. See also Degmetich at 1332 (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, for the reasons set forth above, the overall evidence of record weighs against a finding of residuals of jaw and throat injuries at any time during the appeal period. While the Veteran reported having attended medical school to a VA physician, see April 2009 Primary Care Outpatient Note, the evidence does not confirm that the Veteran did in fact attend. The April 2009 record specifically shows that the physician found the Veteran's stories to "appear highly improbable." A review of the Veteran's education records show that he enrolled to study pre-veterinary medicine in September 1971, but withdrew from his schooling in November 1971. Consequently, the Board considers the Veteran to be a lay person. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of current residuals of jaw and throat injuries - residuals ascertained by specific medical testing - falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to diagnosis have no probative value. The Veteran also lacks the training or credentials to ascertain whether any current diagnosis might be etiologically linked to the service-connected adenocarcinoma. At no time since the Veteran filed his claim for service connection for residuals of jaw and throat injuries in March 2004 has such disability been shown. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for residuals of jaw and throat injuries. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for residuals of jaw and throat injuries is denied. See 38 U.S.C.A §5107 (West 2014). 2. COPD The Veteran's October 1957 separation examination revealed clinically normal lungs and chest. Chest X-rays were reported to show no significant abnormalities. Post-service treatment records show that the earliest evidence of a diagnosis is in 2003. Chest X-rays in March 2003 were reported to show mild COPD. None of the Veteran's treatment records contain any opinion relating COPD to his military service. The Veteran contends that his COPD resulted from asbestos exposure during service as well as from inhalation following a fuel drum explosion. See, e.g., December 2004 statement; T. at 11. The Veteran was afforded a VA examination in April 2016. He was diagnosed with COPD with date of diagnosis being in 2003. The Veteran reported in-service asbestos exposure. The examiner initially provided a positive opinion; however, an addendum opinion was provided in May 2016. The examiner reported that they thought they listed COPD as not being associated with asbestosis. The examiner reported that the Veteran had no indication of asbestosis on his lung studies. The examiner reported the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that chest X-rays in May 2016 did not show reticular scarring as would be seen in asbestosis. The examiner reported that asbestos exposure was not listed as one of the conditions causing COPD in medical literature review. The examiner provided a list of medical references in support of their opinion. Based on a review of the evidence, the Board concludes that service connection for COPD is not warranted. Although the evidence shows that the Veteran has been diagnosed with COPD, it does not show that it is related to his military service. While the Veteran reported asbestos exposure and inhalation of fumes following a fuel drum explosion, the evidence does not show that the currently diagnosed COPD is related to those in-service exposures. His October 1957 separation examination clinically normal lungs and chest; X-rays showed no significant abnormalities. None of the Veteran's treatment records contain any opinion relating COPD as having its onset during the Veteran's military service or as being otherwise related to his military service. In this case, the contemporaneous separation examination and post-service treatment records all fail to show that the onset of the current COPD began during service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). At the VA examination, the Veteran only reported his asbestos exposure. The only medical opinion of record, that of the 2016 examiner, shows that the Veteran's COPD is not related to his military service. As the examiner's opinion was formed after interviewing and examining the Veteran, as well as reviewing the evidence, and is supported by a thorough rationale, the Board accords it great probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file). It is also uncontradicted. Therefore, the evidence weighs against a finding that the currently diagnosed COPD is related to the Veteran's military service. In this case, the first evidence of COPD is not until 2003. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years, after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of COPD complaints, symptoms, or findings for over four decades between the Veteran's military service and the earliest evidence of COPD is itself evidence which tends to show that COPD did not have its onset in service or for many years thereafter. The overall evidence of record as discussed above weighs against a finding of COPD being associated with the Veteran's active duty. Without at least an equipoise in the evidence showing an association between COPD and his active duty, service connection for COPD is not warranted. Although lay persons are competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of COPD - a disease ascertained by specific medical testing - falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4. The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between COPD and the Veteran's active duty, service connection for COPD is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for COPD. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for COPD is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for residuals of jaw and throat injuries is denied. Entitlement to service connection for COPD is denied. ____________________________________________ A.C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs