Citation Nr: 1704074 Decision Date: 02/09/17 Archive Date: 02/23/17 DOCKET NO. 09-30 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a brain tumor. 2. Entitlement to service connection for a lung disorder. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973, and from February 1974 to March 1976. These matters came before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in April 2008 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Veteran appeared at a hearing before a Decision Review Officer. In July 2012, the Veteran and his wife appeared at a hearing before a Veterans Law Judge. Transcripts of both hearings are associated with the virtual folder. In June 2015, the Veteran was informed that the Veterans Law Judge who conducted the July 2012 hearing was no longer at the Board and that the law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107 (c) (West 2014); 38 C.F.R. § 20.707 (2015). He was informed that he had the right to a new hearing. In correspondence received in July 2015, the Veteran responded that he did not want a new hearing. In May 2013 and August 2015, these matters were remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that a brain tumor, specifically pituitary adenoma, manifested during service, manifested within a year of separation from service, or is otherwise related to the Veteran's active service. 2. The Veteran does not have asbestosis or any other asbestos-related disease. 3. The weight of the evidence is against a finding that a lung disorder manifested during service, manifested within a year of separation from service, or is otherwise related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a brain tumor have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for an award of service connection for a lung disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was sent a letter in June 2006 pertaining to his claims of service connection. The letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Such letter also informed the Veteran of the type of information and evidence needed to establish a disability rating and effective date. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. The Board finds that all necessary development has been accomplished with regard to the issues addressed in the decision below. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are on file from his first period of service. 09/25/1995 STR-Medical. In compliance with the remand directive to obtain additional service personnel and treatment records, the AOJ contacted the National Personnel Records Center (NPRC) in June 2013. In a response received that same month, NPRC indicated that all available service personnel records were mailed. NPRC indicated that all available service treatment records were also mailed and no additional service treatment records were at code 13. NPRC also indicated that they had no information as to where the additional service treatment records are presently or even if they still exist. In July 2013, the AOJ received the Veteran's service personnel records and additional service treatment records. The service treatment records only included the Veteran's June 1973 U.S. Navy enlistment examination. The AOJ did not notify the Veteran that a complete copy of his service treatment records from his period of service from February 1974 to March 1976 were incomplete, in accordance with 38 C.F.R. § 3.159(e). In January 2016 correspondence, VA informed the Veteran that his service treatment records were missing and that all efforts to obtain the records have been exhausted. 38 C.F.R. § 3.159(e). The Veteran requested that the Veteran submit any service treatment records; the Veteran did not respond. In February 2016, VA prepared a memorandum outlining actions taken to obtain the Veteran's service treatment records and determined that further efforts would be futile. Under such situations the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). In further January 2016 correspondence, VA requested that the Veteran clarify the contents on a CD submitted in July 2012; the Veteran did not respond. No additional evidence has been identified by the Veteran with regard to the disabilities addressed below. The Veteran was afforded VA examinations in May 2010 and March 2016 with regard to his brain tumor and lung disability claims which will be discussed below. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims discussed below. Criteria & Analysis The Veteran claims entitlement to service connection for a brain tumor and a lung disability due to asbestos exposure or lead paint exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (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. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b). An award of service connection based solely on continuity of symptomatology only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b)). For veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as tumors of the brain, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307(a), 3.309(a). 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 manifestation 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). The second and third Caluza elements may also be satisfied under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-97. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled on other grounds), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person."). There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that 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 are included in VBA's ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. (hereinafter M21-1MR). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M21-1, IV.ii.2.C.2.f. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. M21-1, IV.ii.2.C.2.h. The Manual notes that asbestos particles 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. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. M21-1, IV.ii.2.C.2.b. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. The clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. M21-1, IV.ii.2.C.2.g. The Board notes that the pertinent parts of the M21-1 guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in-service. An April 1995 treatment record reflects that the Veteran underwent a neurology consultation in July 1992 due to contraction headaches secondary to ear disease and an MRI of the brain showed global atrophy with prominent ventricles but no masses. 05/30/1995 Medical Treatment Record-Government Facility at 4, 6, 10; 08/26/1994 Medical Treatment Record-Government Facility at 3. A May 2004 chest x-ray examination reflects stable right midlung atelectasis and/or scarring; and subtle increased opacity at the left base which probably represents atelectasis, but could represent early or resolving infection. 05/22/2006 Medical Treatment Record-Government Facility at 4. A July 2004 Brain CT reflects a questionable 5 mm pituitary microadenoma. Id. at 5. A January 2006 MRI of the brain, which was compared with the July 2004 CT of the brain, reflects a question of a pituitary microadenoma. Id. at 13. A June 2010 VA examination reflects the Veteran's assertion that a brain tumor was diagnosed in March 1995 and that a scar on the lungs was diagnosed in 2004. The examiner acknowledged the prior diagnosis of pituitary adenoma. The examiner acknowledged a July 2004 chest x-ray examination which reflects slight mid lung atelectasis or scarring subtle atelectasis. The examiner diagnosed non functioning micro pituitary adenoma and emphysema. The examiner opined that microadenoma of the pituitary is less likely than not due to asbestos exposure. The rationale was that the examiner could not find any medical evidence linking these conditions. The examiner explained that micropituitary adenomas are typically benign incidental findings that cause little to no symptoms and are incidentally found in 10 percent of the population. The examiner stated that the Veteran's microadenoma is only 4 mm in size, has been shrinking since first found, and is more likely than not an incidental finding when they were working up chronic headaches and disequilibrium from chronic serous otitis media. The examiner opined that adenoma is too small to cause pressure symptoms such as headaches or disequilibrium. With regard to the claimed lung disability, the examiner stated that there was no scarring diagnosed in VA records and there are no history or signs of asbestosis on x-ray reports from 2004. X-ray reports from 2004 reflect most likely resolving infection or atelectasis. The examiner opined that his emphysema is less likely than not due to asbestos exposure. The examiner's rationale was that it was more likely due to age and tobacco abuse, and asbestos exposure more likely causes asbestosis. In March 2016, the Veteran underwent VA examinations regarding his claimed brain tumor and lung disability. The examiner opined that there does not exist sufficient medical evidence to substantiate the Veteran's contention of developing a pituitary adenoma secondary to lead exposure. The examiner explained that pituitary adenomas are relatively common. Tiny microscopic pituitary adenomas are found in one in five adults. However, most of these tumors never grow or cause problems. Nearly all pituitary adenomas are benign (noncancerous) and slow growing. The examiner stated that no available documented research shows that there is a risk factor associated with lead exposure and developing a pituitary adenoma. Research has shown that lead exposure increased the risk of meningioma with occupational exposure but not pituitary adenomas. Occupational lead exposure was also not associated with brain glioma tumors. There is no documented association between lead exposure and developing pituitary adenomas. Therefore, the identified diagnosis is not related to inservice exposure to lead pain and/or asbestos. The examiner also opined that there does not exist sufficient medical evidence to substantive the Veteran's contention of developing emphysema due to lead exposure while in service. The examiner stated that smoking is the primary cause of COPD/emphysema. There is no association that has been made between lead exposure and emphysema. Other risk factors for emphysema include male gender, heredity, air pollution and age. Cigarette smoke directly affects the cells in the airway responsible for clearing mucus and other secretions. Older age is a risk factor for emphysema. Lung function normally declines with age. Therefore, it stands to reason that the older the person, the more likely they will have enough lung tissue destruction to produce emphysema. The Veteran has been smoking cigarettes 1 to 2 packs a day for greater than 40 years. Asbestos exposure commonly causes calcified plaques of the pleura, spontaneous pneumothorax, not COPD. The examiner opined that the identified diagnosis is not related to inservice exposure to lead paint and/or asbestos. The Board notes that the Veteran has not submitted medical evidence of a disability manifested by asbestos exposure, to include asbestosis. As detailed hereinabove, in order for there to be a clinical diagnosis of asbestosis, one of the requirements must be radiographic evidence of parenchymal disease. The Veteran has not submitted any medical evidence that contains a specific impression or a diagnosis of a specific disease manifested by asbestos exposure. Similarly, the evidence developed over the course of this claim/appeal has not reflected a disease shown related to asbestos exposure. Indeed, there is no radiographic evidence of an asbestos-related disability. With regard to whether he has a claimed brain tumor or lung disability directly related to service, service treatment records available are negative for any complaints or diagnoses of disabilities affecting the brain and respiratory system. A June 1973 Report of Medical History reflects that the Veteran checked the 'No' boxes for 'shortness of breath' and 'pain or pressure in chest.' He checked the 'Yes' box for 'asthma' but the examiner noted that he reported "no more asthma or hay fever." A June 1973 Report of Medical Examination reflects that the Veteran's 'lungs and chest' were clinically evaluated as normal. A chest x-ray examination was within normal limits. 07/12/2013 Medical Treatment Record-Government Facility. While the entirety of the service treatment records are unavailable, post-service treatment records reflect that the claimed conditions were diagnosed in July 1992 and May 2004, respectively, thus many years after separation from service. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran's condition for many years is a factor for consideration. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The Board has also considered whether, even though not documented in treatment reports, there is lay evidence of continuity of respiratory or brain symptomatology since service. However, the Veteran has not contended to have had symptomatology dating back to service, rather he asserts that his conditions manifested due to asbestos or lead exposure. Thus, an allowance of service connection solely based on continuity is precluded here. With regard to the to whether the Veteran's claimed conditions affecting the brain and lungs are due to exposures in service, as detailed hereinabove, the VA examiners have opined that his pituitary adenoma and emphysema are not due to asbestos exposure nor lead paint exposure. The opinions of the VA examiners lead to a finding that the Veteran's pituitary adenoma and emphysema did not manifest during service and are not otherwise due to service. The Board accepts the examiners' opinions as being the most probative medical evidence on the subject, as such were based on a review of all historical records, and contain detailed rationale for the medical conclusions. Given the depth of the examination reports, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and given considerable weight. The Board has considered the Veteran's contention that a relationship exists between his pituitary adenoma and emphysema and his in-service exposures. The Veteran, however, is not competent to offer an opinion as to the etiology of these conditions as he does not have the requisite medical expertise. Indeed, a veteran's ability to render an opinion of etiology is limited to observable, immediate cause-and-effect relationships, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board is cognizant of the fact that the Veteran believes that he has medical disabilities due to exposure to asbestos and lead pain during service; however, he lacks the medical expertise necessary to diagnose a specific medical disability or conclude any condition is etiologically related to these exposures. As noted in the M21-1, asbestos is a fibrous form of silicate mineral of varied chemical composition. Asbestos is complex and effects of it on the human body are also complex. As such, the finds the Veteran's testimony/statements regarding the etiology of his brain tumor and lung disorder to not be competent and hold no weight. However, due to his lay assertions, VA opinions were sought, which were ultimately negative. As conditions associated with the brain and lungs were not shown in service, and the records contain no suggestion of a causal link between his pituitary adenoma and emphysema and active service, to include in-service exposures, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection. In sum, the Board is compelled to conclude that the preponderance of the evidence is against the Veteran's claims of service connection for a brain tumor and a lung disability. It follows that the Board is unable to find such a state of approximate balance of the positive evidence to otherwise warrant a favorable decision. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a brain tumor is denied. Entitlement to service connection for a lung disorder is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs