Citation Nr: 1804338 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-17 532 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure. 2. Entitlement to service connection for a pulmonary/respiratory disability, claimed as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to October 1968. This appeal to the Board of Veterans' Appeals (Board) arose from December 2011 and January 2013 rating decisions. In the December 2011 rating decision, the RO denied service connection for ischemic heart disease. In February 2012, within one year of the notification of the December 2011 rating decision, the Veteran, though his representative, filed a notice of disagreement (NOD) with the RO's denial of service connection for ischemic heart disease. In January 2013, the RO denied service connection for a lung condition, claimed as asbestosis. In August 2013, the Veteran, though his representative, disagreed with the RO's denial of that claim. In April 2014, the RO issued two statements of the case (SOCs), addressing the Veteran's claims for service connection for ischemic heart disease and for a lung condition. The same month, the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) for each claim. In February 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In April 2016, the Board remanded the claims referenced above and as listed on the title page. After accomplishing further action, the agency of original jurisdiction (AOJ) continued to deny the claims on appeal (as reflected in a September 2017 supplemental SOC (SSOC)), and returned these matters to the Board. While the Veteran previously had a paper claims file, this appeal is now being processed primarily utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. There are additional documents stored electronically in a Virtual VA (Legacy Content Manager) file, consisting of adjudicatory decisions, notification letters, and VA treatment records. All such records have been reviewed. With regard to representation, at the time of the April 2016 Board remand, the Veteran was represented by Disabled American Veterans. However, in June 2016, the Veteran executed a VA Form 21-22a ((Appointment of Individual as Claimant's Representative) in favor of private attorney Jan Dils. The Board has recognized the change in representation. FINDING OF FACT 1.All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran was likely exposed to asbestos in service and has current respiratory complaints,, the competent, probative evidence on the question of whether he has ,or at any point pertinent to the current claim has had, a current pulmonary or respiratory disability underlying such complaints weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a pulmonary/respiratory disability are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is filed, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A December 2012 pre-adjudication letter provided pertinent notice to the Veteran in connection with his claim for service connection for a pulmonary/respiratory disability, filed in November 2012. That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. It also informed the Veteran how VA determines the assignment of disability ratings and effective dates. The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim decided herein, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, VA and private treatment records, and the report of a VA examination. Also of record and considered in connection with the claim is the transcript of the Board hearing, along with various written statements provided by the Veteran, and by his representative, on his behalf. Notably, there is no evidence or argument indicating any error or omission in the assistance provided, to include the VA examination provided in August 2016 and subsequent addendum opinion. As for the February2016 hearing, the Board notes that, during the hearing, the undersigned enumerated the issues on appeal, to include the matter herein decided, and elicited testimony from the Veteran regarding his theory of the claim. The undersigned also suggested the submission of evidence showing a treatment of a current disability and nexus to service. Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include identification of any prejudice in the conduct of the hearing. The hearing was legally sufficient. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. As such, there is no prejudice to the Veteran in the Board proceeding to a decision on this claim, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id., see Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. In the instant case, the Veteran contends that he suffers from a respiratory/pulmonary disability that is attributable to in-service asbestos exposure. Specifically, in a January 2014 written statement and during his February 2016 hearing, the Veteran alleged that he was exposed to asbestos as an aircraft mechanic. The Veteran reported that asbestos was used for insulation of duct work and wiring and in brake pads and jet engines. As discussed in the Board's April 2016 Remand action, the Veteran's service personnel records document that he worked as an aircraft mechanic and aircraft maintenance specialist. The Veteran has also submitted numerous internet articles discussing the use of asbestos in planes and indicating that aircraft mechanic were especially vulnerable to asbestos exposure. Further the M21-1 "Live Manual" describes the probability of asbestos exposure by military occupational specialty, which list is not exclusive. M21-1, part IV, subpt. ii, ch. 1, sec. I.3.c. Jet engine mechanics and aviation mechanics are indicated to have a "probable" probability of exposure. Id. Given this evidence and in consideration of the Veteran's indicated military occupational specialties, the Board conceded that the Veteran was likely exposed to asbestos in service. Notwithstanding the above, however, , service connection cannot be awarded absent a currently diagnosed disability that has been linked to the in-service exposure. In support of his contention that he suffers from a pulmonary/respiratory disorder, the Veteran submitted a private medical record dated in November 1994 and signed by W.A.D., M.D., who reported that the Veteran was seen for evaluation to determine the presence or absence of coal worker's pneumoconiosis and/or asbestosis. It was noted that x-rays were taken, the results of which were interpreted as being consistent with mixed dust type of pneumoconiosis, including both coal worker's pneumoconiosis and asbestosis. More recently, the Veteran was seen for complaints of shortness of breath. Notably, however, chest x-rays were interpreted to be essentially normal. X-rays taken in August 2013 were interpreted to reveal borderline expanded lungs with nonspecific mild prominent interstitial lung markings; the recorded impression, however, was no significant acute process in the lung. X-rays taken in April 2014 showed clear lungs and an unremarkable mediastinal contour. The impression was a negative two-view chest x-ray. In its April 2016 Remand action, the Board determined it necessary to obtain a medical examination an opinion, noting that although it is not clear that the Veteran has a currently diagnosed pulmonary/respiratory disorder, VA treatment records do show that the Veteran has complained of shortness of breath, which could be a symptom of a current respiratory/pulmonary disorder. The Veteran underwent a VA respiratory examination in August 2016. Following review of the record and examination of the Veteran, the VA examiner indicated that the Veteran does not in fact suffer from any diagnosed pulmonary/respiratory condition. The examiner noted that Veteran's complaints of dyspnea on exertions since 1991 or 1992, his use of inhalers, his past history of smoking, and his reported in-service exposure to asbestos. In connection with the VA examination, a high resolution computed tomography (CT), without contrast, to evaluate interstitial lung disease such as asbestosis was done in July 2016. The CT report noted that axial images of the chest were obtained beginning at the thoracic inlet and continuing through the lung bases without administration of intravenous contrast utilizing high-resolution chest CT protocol. No significant interstitial lung disease was found to be present and no pleural plaque or pleural effusions were present. A tiny subpleural nodularity was present in the right lateral chest, as were calcific remnants of prior granulomatous. However, no parenchymal nodules were identified. Overall, the interpreting radiologist found no radiographic changes suggestive of asbestosis related disease. Further, despite the Veteran's complaints of dyspnea, the VA examiner found no evidence of pneumoconiosis or any asbestos related condition in the lungs. The examiner thus opined that it was less likely than not that the Veteran suffered from a pulmonary/respiratory condition that was attributable to service, as a pulmonary/respiratory condition was not diagnosed. In September 2016, the AOJ issued a deferred rating decision noting that there appeared to be conflicting information on medical examination. Specifically, it was noted that the VA examiner stated that the Veteran has never been diagnosed with a respiratory condition, but that the examiner also noted that the Veteran uses an inhalational bronchodilator therapy for a respiratory condition. Clarification was requested from the VA examiner and in December 2016, the examiner provided an addendum medical opinion. In that opinion, the VA examiner noted that VA treatment records contained an assessment of chronic obstructive pulmonary disorder (COPD), rendered by the Veteran's primary care physician in August 2016, when the Veteran had presented for a routine checkup. It was noted, however, that a chest x-ray showed that the lung fields were well expanded and free of any acute or active disease and that there was no pleural effusion or pneumothorax. The VA examiner then stated that no evidence of COPD was found when the Veteran was examiner on August 26, 2016, by strict criteria, stressing that the previous examination was complete. Regarding the Veteran's use of inhalers, the VA examiner stated that the Veteran gets inhalers intermittently for symptoms without diagnosis of any respiratory condition. After a review of the record, the Board finds that service connection for the Veteran's claimed pulmonary/respiratory disability is not warranted. Although the Veteran has complained of shortness of breath, the record does not include a probative diagnosis of any specific pulmonary or respiratory disability at any point pertinent to the current claim. It so finding, the Board acknowledges that COPD appears on the Veteran's VA treatment records problem list. It is unclear, however, what that diagnosis was based on. Indeed, when seen by his primary care physician in August 2016 for a routine checkup, the Veteran complained of occasional shortness of breath. There was some wheezing in his right lung, and the Veteran was positive for dyspnea. A chest x-ray taken at that time revealed that the lung fields were well expanded and free of any acute of active disease. Although the clinician recorded an assessment of COPD, the clinical impression of the imaging study revealed no active lung disease. Further, VA treatment records dated prior to this entry are devoid of any diagnosis of COPD or other pulmonary or respiratory disease. Moreover, when examined in August 2016, the VA examiner indicated no evidence of any diagnosable pulmonary or respiratory disease, and again, upon review of the VA treatment record noting COPD, stated that no evidence of COPD by strict definition was found. As the primary care physician's diagnosis of COPD does not appear to be supported by the medical evidence of record, as explained by the August 2016 VA examiner, the Board finds the August 2016 VA examiner's opinion that the Veteran does not have a diagnosed pulmonary/respiratory conclusion more probative, as the examiner discussed the findings on the imaging studies of record and also gave reason for the Veteran's use of an inhaler. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (holding that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Notably, symptoms alone, without a diagnosed or identifiable underlying malady or pathology, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Thus, to establish entitlement to compensation, the evidence must show, fundamentally, the existence of a current disability, and in the absence of an identified disease or injury, service connection may not be granted. See Sanchez-Benitez, supra. Here, despite the Veteran's complaints of shortness of breath and dyspnea, there is no competent, probative evidence establishing that the Veteran has, or at any time period pertinent to the current claim has had, a pulmonary or respiratory disability. Rather, as explained above, the medical evidence on this point weighs against the claim. Again, the Board stresses that although the VA treatment records contain a diagnosis of COPD, the Board has concluded that that diagnosis is not supported by the evidence of record, as explained by the August 2016 VA examiner. Thus, there is no competent, probative evidence of a pulmonary or respiratory disability upon which to predicate an award of service connection. Simply stated, other than his own assertions of having shortness of breath the Veteran has not proffered any competent evidence to even suggest a current pulmonary/respiratory disability. Notably, moreover, as the Veteran has neither the medical training nor expertise to competently diagnose a pulmonary/respiratory disability involving internal processes on the basis of his own lay assertions. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). Given the complete lack of competent evidence establishing a currently diagnosed disability that could reasonably be encompassed within the scope of the Veteran's claim, the Veteran's claim for service connection for a pulmonary/respiratory disability must be denied. See 38 U.S.C. § 1110; Caluza, 7 Vet. App. at 506 (holding that service connection cannot be awarded in the absence of 'competent evidence of current disability'); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability"). For all the foregoing reasons, the Board finds that the claim for service connection for a pulmonary/respiratory disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012);; 38 C.F.R. § 3.102 (2017) ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a pulmonary/respiratory disability is denied. REMAND Unfortunately, the Board finds that further action on the claim for service connection for ischemic heart disease is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliances with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As regards the Veteran's claim for service connection for ischemic heart disease, in its April 2016 remand action, the Board noted the Veteran's assertion that he was on flights that touched down in Vietnam. The Board also noted that the AOJ attempted to verify whether the Veteran had in fact served in Vietnam, but that a response received from National Personnel Records Center (NPRC) for verification of whether the Veteran had service in Vietnam was inconclusive and could not be relied upon to support a finding that the Veteran did not have service in Vietnam. The Bord thus ordered, inter alia, that additional efforts were to be undertaken to verify whether the Veteran can be considered to have had service in Vietnam. This is so because ischemic heart disease, to include coronary artery disease, is a disease that the VA Secretary has recognized is etiologically associated with exposure to "herbicide agents" during active military, naval, or air service, and is thus presumed to have been incurred during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met. For veterans serving in the Republic of Vietnam during a specified time period, herbicide exposure is presumed. 38 C.F.R. § 3.307(a)(6)(iii). A review of the actions taken on remand reveals that although the AOJ sought to verify whether the Veteran was exposed to herbicide agents while stationed in Thailand, which development was also ordered by the Board in its April 2016 action, the AOJ did not undertake all necessary actions to verify whether the Veteran could be considered to have served in-country in Vietnam. Notably, in a April and June 2017 deferred rating decisions, the AOJ acknowledged the April 2016 remand instructions to conduct additional development to verify Vietnam service. It was also noted that a June 2016 formal finding that exposure to herbicide agents could not be conceded was specific to the Veteran's service in Thailand. The AOJ noted, therefore, that a new formal finding was necessary if Vietnam herbicide exposure could not be conceded. In June 2017, the AOJ sent the Veteran a letter requesting additional information regarding his service in Vietnam, to include dates that he travelled to Vietnam and any supporting documentation of such. No additional effort to verify Vietnam service was undertaken, nor was any formal finding issued prior to the AOJ issuing the September 2017 SSOC continuing the denial of service connection for ischemic heart disease. Accordingly, because the AOJ did not complete the required development to verify the Veteran's reported service in the Republic of Vietnam, the Board cannot conclude that the AOJ fully or substantially complied with Board's April 2016 remand directive and another remand of the claims on appeal is required. Stegall, supra. In this regard, the Board notes that VA's Adjudication Procedure Manual provides a procedure for verifying exposure to herbicides when the claimant reports service in the Republic of Vietnam, which procedures must be followed on remand. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part IV, subpt. ii, ch. 01, sec.H.1.d. In attempting to verify Vietnam service, the AOJ should take note of, and conduct any necessary development in response to, an e-mail from the Navy Department Library, submitted by the Veteran's attorney in May 2017, regarding aircraft landing or refuel and deliver or pick up personnel and cargo at Tan Son Nhut Air Base during the Vietnam War. While this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly as regards private (non-VA) medical treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); But see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses have been associated with the claim, undertake appropriate action as outlined in the M21 "Live Manual", to particularly include contact with the NPRC, as well as any other appropriate source(s), to attempt to independently verify whether the Veteran ever set foot in Vietnam during his Vietnam era service. In doing so, attempt to verify whether the Veteran ever landed in Vietnam during his flights to and/or from Thailand. In particular, take note of, and conduct any necessary development in response to, an e-mail from the Navy Department Library, submitted by the Veteran's attorney in May 2017, regarding aircraft landing or refuel and deliver or pick up personnel and cargo at Tan Son Nhut Air Base during the Vietnam War. Follow up, as appropriate, on any requested or suggested action(s). 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs