Citation Nr: 1812167 Decision Date: 02/27/18 Archive Date: 03/07/18 DOCKET NO. 12-09 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a liver condition, as secondary to chemical and asbestos exposure. REPRESENTATION Appellant represented by: Lisa McNair Palmer, Attorney WITNESSES AT HEARING ON APPEAL Veteran and observer ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The appellant served on active duty in the Air Force from April 1970 to March 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant testified at a videoconference hearing in front of the undersigned Veteran's Law Judge (VLJ) in July 2012. A transcript of the hearing is associated with the claims file. This issue was previously before the Board in June 2014 and July 2017. The Board remanded the matter for further development and to afford the Veteran a VA examination for his claimed condition. FINDINGS OF FACT The Veteran does not have a current diagnosis of a liver condition, nor has he at any time during the claim and appeal period. CONCLUSION OF LAW The criteria for service connection for a liver condition have not been met. 38 U.S.C.A. §§1131, 5107 (West 2015); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A letter dated May 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support him claim, and asked him to send the information or evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met its duty to assist the Veteran in the development of the claim. The Veteran's VA treatment records and examinations have been associated with the claims file. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159. Private treatment records have been obtained, to the extent possible. The Veteran has not indicated nor does the record show he is in receipt of Social Security Administration (SSA) disability benefits. Additionally, the Veteran was afforded a VA examination in November 2017. The Board has carefully reviewed the VA examination of record and finds that the examination, along with the other evidence of record, is adequate for rating purposes. Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103 (c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the appellant's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103 (c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103 (c)(2). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Service Connection for a Liver Disorder In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) an 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). VA has recognized that the inhalation of asbestos fibers can produce disorders including fibrosis, tumors, pleural effusions, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancers of the lung and bronchus. See M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Paragraph 9, Subsection b. Service connection can also be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) (2017). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, the Veteran's claims for entitlement to service connection will be evaluated under the general VA rules and regulations discussed above. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). With respect to in-service exposure to asbestos the Board finds that service connection is not warranted on that basis. In this regard, during his July 2012 hearing, the Veteran reported exposure to asbestos while stationed at Lackland Air Force Base for the entirety of his active duty service. He testified that the buildings at Lackland AFB were constructed using asbestos. The Veteran's military personnel records confirm that he was stationed at Lackland AFB. In regard to an in-service incident or injury, the Veteran is competent to testify as to the facts of his asbestos exposure. However, in this case, there is insufficient evidence to establish exposure to asbestos based on the information provided. The Board notes that the Veteran has a duty to cooperate in the development of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991). In this case, the Veteran testified that his primary military occupational specialty as a prosthetic technician, which is not the type that would suggest duties where he would be in direct or close contact with disturbed asbestos, nor are any of the military occupational specialties listed in his service records. Therefore, in-service exposure to asbestos has not been established. The Veteran claims that he has an enlarged liver which was discovered during a chest x-ray. A June 2008 VA treatment record noted that the Veteran had some fatty infiltration of the liver. The Veteran's service treatment records (STR) are silent for any treatment related In November 2017 the Veteran was afforded a VA examination. The examiner conducted an in-person examination, reviewed the Veteran's claims file and conducted the necessary testing. She determined that the Veteran did not have a diagnosis of any liver condition. Therefore, she concluded that it was less likely than not (less than 50 percent probability) that the Veteran's claimed liver condition was related to his active duty service, to include in-service exposure to various chemicals including acetone, linseed, tetrachloride, resin, formaldehyde, silica dust, welding exposure and asbestos. She further determined that the Veteran's claimed condition was not related to in-service symptoms of coughs, headaches and pneumonia and reported black outs. The Veteran's STRs showed no evidence of chronic cough, chronic headaches, black outs and pneumonia. Although the Veteran had a history of pneumonia in 1970, but it was resolved. The Board places great probative value on the opinions reached by the 2017 examiner as the examiner conducted an examination of the Veteran, reviewed pertinent evidence contained in the claims file, and provided a rationale for the opinions. Accordingly, the Board finds that the weight of the evidence shows that the Veteran does not have a current liver disability and is not eligible for service connection for a liver condition. See Brammer v. Derwinski, supra. In reaching this conclusion the Board has considered the various statements submitted by the Veteran in support of his claim. The Veteran, while competent to report his symptoms, is not competent to diagnose disabilities such as a liver condition or attribute his symptoms to a liver condition, as this requires specialized knowledge and training. The accuracy of the Veteran's reports of symptoms is better assessed by a medical professional, here the VA examiner. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Under applicable regulations, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Thus, there is no current disability manifested by a liver condition. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"); see also Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (recognizing that a symptom of pain is not a disability). It is unnecessary to proceed by considering whether the other requirements for establishing entitlement to this benefit are met since doing so would not alter this determination. Based on the preponderance of the evidence, the Veteran does not have a current liver disability, service connection is not warranted, and the benefit of the doubt is inapplicable. 38 U.S.C.A. § 1110, 1111, 5107(b); Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for a liver condition, as secondary to chemical and asbestos exposure is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs