Citation Nr: 1729363 Decision Date: 07/26/17 Archive Date: 08/04/17 DOCKET NO. 16-51 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral foot disability claimed as secondary to carbon tetrachloride exposure. 2. Entitlement to service connection for a respiratory disability to include spot on the lung, emphysema, and chronic obstructive pulmonary disease (COPD) claimed as secondary to carbon tetrachloride exposure. 3. Entitlement to prostate cancer claimed as secondary to carbon tetrachloride exposure. 4. Entitlement to service connection for actinic keratosis claimed as secondary to carbon tetrachloride exposure. 5. Entitlement to service connection for leaking heart valve claimed as secondary to carbon tetrachloride exposure. 6. Entitlement to service connection for polymyositis with blood and muscle disease with nerve pain in both legs claimed as secondary to carbon tetrachloride exposure. 7. Entitlement to a rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active duty service from January 1951 to October 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied entitlement to the benefits currently sought on appeal. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2016). The service connection issues pertaining to bilateral foot and respiratory disabilities are decided below; the remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if any action, on his part, is required. FINDINGS OF FACT 1. A chronic bilateral foot disorder, to include bilateral calcaneal plantar spur, did not have its onset during active service and is not etiologically related to service, to include exposure to carbon tetrachloride. 2. The Veteran's respiratory disability is reasonably shown to be related to carbon tetrachloride exposure during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for a respiratory disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and post-service treatment records with the claims file. Moreover, adequate VA examinations with accompanying opinions regarding the claims decided herein have been obtained. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, for certain chronic diseases detailed in 38 C.F.R. § 3.309(a), that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, if a chronic disease becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336. The Veteran contends that his bilateral foot and respiratory disabilities are related to his exposure to carbon tetrachloride while serving as an aircraft engine mechanic during service. Indeed he indicated that he would dip a rag, with his bare hands, in a bucket filled with carbon tetrachloride in order to clean the aircraft engines. He noted that on hot days, he would not have on shirt and would be up to his waist in carbon tetrachloride. The Veteran is competent to report about the circumstances of his service. 38 C.F.R. § 3.159 (a)(2). The Veteran's DD Form 214 reflect that his military occupational specialty during his Navy active duty service was an aircraft engine mechanic, and the Board finds his statements regarding his duties to be credible. Bilateral foot disability The Veteran separated from service in 1954. The earliest clinical evidence of a foot disability is not until 2005, five decades after separation. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). On April 2015 VA examination, the Veteran reported that around 2005, he noticed rings on his lower legs for unknown reason and showed it to his primary doctor who told him that he has slight ankle swelling. He stated that he experiences swelling around the ankles, intermittently, with prolonged walking/standing. Bilateral foot x-ray showed bilateral plantar calcaneal spurring. After examination of the Veteran and review of the file, the examiner noted that there is no documented evidence indicating the Veteran had in-service foot complaints with swelling and pain. He noted the Veteran currently reports only having pain and swelling with prolonged activities; and that recent x-ray of the feet revealed bilateral plantar calcaneal spurring, and mild narrowing of the PIP and DIP joints bilaterally. Therefore, based on available records reviewed, the examiner found the Veteran's bilateral swollen feet complaint is less likely as not incurred in or caused by carbon tetrachloride in service from 1951 to 1954. As aptly noted by the record, this evidence shows that the medical data establishes no relationship between the current bilateral foot diagnoses and service. Additionally, the Board finds the April 2015 VA opinion, highly probative. The examiner based his opinion on a detailed physical examination and supported it with the rationale that the Veteran's current bilateral foot pain and swelling is a result of prolonged activities and not a result of active service from 1951 to 1954. This rationale was supported by the Veteran's service treatment records that did not show any documented evidence of in-service foot complaints; and further, there are no post-service treatment records that show a relationship between his current foot disability and service, to include exposure to carbon tetrachloride. The claim is also supported by the Veteran's lay statements to the effect that he believes there is a nexus between his current bilateral foot disorder and his military service. The Veteran has not demonstrated that he is an expert when it comes to diagnosis or etiology of foot disorders; he is, therefore, a layperson in this regard. In this case, however, the facts are complex enough that the Veteran's lay intuition about of the cause of his bilateral foot disorder is not sufficient to outweigh the April 2015 opinion of the VA examiner who carefully considered the specific facts of this case. See Kahana v. Shinseki, 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis"). Accordingly, the Board finds the Veteran's lay statements to be of minimal probative value compared to the April 2015 opinion against the claim. For these reasons, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's current bilateral foot disability arose in or is otherwise etiologically related to his active military service, to include exposure to carbon tetrachloride. Therefore, service connection for a bilateral foot disability is denied. Respiratory disability The Veteran contends that his respiratory disability is due to service, to include as secondary to carbon tetrachloride exposure. Private and VA treatment records indicate that the Veteran is diagnosed with COPD. Accordingly, the first Shedden element is met. With regard to an in-service event, injury, or disease, the Veteran's service treatment records show no diagnoses, complaints, or signs and symptoms of a respiratory disability during military service. The Veteran, however, does not allege that his respiratory disability manifested during service. Instead, as discussed he contends that it is related to carbon tetrachloride to which the Veteran has asserted he was routinely exposed during service. As indicated the Board accepts as credible, the Veteran was exposed to carbon tetrachloride during service while performing his duties as an aircraft engine mechanic. Accordingly, the second Shedden element is satisfied. With regard to the final element, a nexus between the Veteran's current respiratory disability and his in-service carbon tetrachloride exposure, the record contains a July 2015 statement from the Veteran's private physician Dr. C. that indicates the exposure to carbon tetrachloride could be a precedent to the Veteran's COPD. The Board notes that the statement does not give a definitive opinion on the cause of the respiratory disability, and is therefore inadequate and afforded little probative weight. The Board does find, however, the April 2015 VA opinion (located in Virtual VA), finds that the Veteran's current respiratory disability is at least as likely as not incurred in or caused by carbon tetrachloride in service. He reasoned that the most common cause of COPD is smoking, and in rare cases, a nonsmoker who lacks protein alpha-1 antitrypsin can also develop emphysema/COPD. He notes that there is no evidence the Veteran is deficient to protein alpha-1 antitrypsin, and the Veteran is a nonsmoker. He reiterated that as the Veteran has a history of extensive exposure to carbon tetrachloride while in service, the pulmonary condition is at least as likely as not incurred in or caused by carbon tetrachloride in service. In light of the positive nexus opinion from the April 2015 VA examiner, the Board finds that the Veteran's respiratory disability is at least as likely as not related to his carbon tetrachloride exposure during service. As such, the claim is granted. ORDER Service connection for a bilateral foot disability is denied. Service connection for a respiratory disability is granted. REMAND The Board finds that a remand is required before the remaining claims can be properly adjudicated. Relevant to bilateral hearing loss, the Board finds that a remand is warranted in order for the Veteran to be afforded a new VA examination. The Veteran's last VA examination for his service-connected bilateral hearing loss was in December 2014. The Board observes that he contends that his hearing loss disability has increased in severity since the most recent VA examination. See August 2015 notice of disagreement; see also May 2017 representative's written brief presentation. As the Veteran contends a worsening of his bilateral hearing loss, the Board finds that further examination would be helpful in deciding the hearing loss rating issue. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the current rating may be incorrect); see also Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). As relevant to the remaining service-connected disabilities, the Veteran contends that these issues are a result of his in-service exposure to large amounts of carbon tetrachloride while working on aircraft. As noted, the Veteran's DD-214 documents he was an aircraft engine mechanic and thus exposure to toxic chemicals is conceded. The Board notes that private as well as VA treatment records document diagnoses and history of prostate cancer, actinic keratosis, mitral valve regurgitation (leaking heart valve), and polymyositis. In a July 2015 statement, Dr. C., a private physician, indicated that exposure to carbon tetrachloride could certainly be precedent to the history of the Veteran's claimed disabilities. The Veteran has not been afforded an examination(s) with accompanying opinion(s) regarding the residuals of exposure to toxic chemicals, including prostate cancer, actinic keratosis, leaking heart valve, and polymyositis. The Board finds that the low threshold for when a VA examination is warranted has been met. See 38 U.S.C. § 5103A (d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). The evidence indicates, at least, a possible association between the claimed disabilities and his in-service exposure to carbon tetrachloride. The evidence of record warrants a remand for an examination(s). Finally, although the Veteran has not identified any current treatment (private or VA) relevant to his disabilities, given the time that will pass during the processing of this remand, any updated VA treatment records pertinent to the bilateral hearing loss, prostate cancer residuals, actinic keratosis, mitral valve regurgitation, polymyositis should be associated with the claims file. 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. Obtain any updated treatment records (VA or private) pertinent to the bilateral hearing loss, prostate cancer, actinic keratosis, mitral valve regurgitation, and polymyositis disabilities. Any response received in association with this request should be memorialized in the Veteran's claims file. 2. Schedule the Veteran for a VA audiological evaluation to determine the current nature and severity of his service-connected bilateral hearing loss. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail-including the functional impact of his bilateral hearing loss disability. 3. Provide the Veteran a VA examination with an appropriate specialist to determine the etiology of the prostate cancer, actinic keratosis, mitral valve regurgitation, and polymyositis. The medical professional must provide an opinion addressing the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's disabilities, to include prostate cancer, actinic keratosis, mitral valve regurgitation, and polymyositis, had its clinical onset during active service or is related to any in-service disease, event, or injury, to include conceded carbon tetrachloride exposure? Please note that a diagnosis of the disability in service is not required to establish entitlement to service connection. In responding to this question, the examiner must consider the Veteran's lay statements; as well as the July 2015 statement from Dr. C., the private physician. The examiner must provide a complete rationale for any opinion expressed that is based on the his or her clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 4. Thereafter, review the claims file to ensure that all the foregoing requested development is completed, and, arrange for any additional development indicated. The AOJ should then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the Veteran unless he is notified. The purpose of this remand is to assist the Veteran with the development of his claims. He has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs