Citation Nr: 19105491 Decision Date: 01/23/19 Archive Date: 01/23/19 DOCKET NO. 15-14 428 DATE: January 23, 2019 ORDER Entitlement for service connection for a lung disability, including left fibrothorax, is denied. Entitlement for service connection for hypertension is denied. Entitlement for service connection for kidney disease is denied. Entitlement to service connection for hearing loss, tinnitus, and vertigo are dismissed. FINDINGS OF FACT 1. The Veteran’s lung disability, including left fibrothorax, is not related to service. 2. The Veteran’s hypertension is not related to service and did not manifest within one year of separation from service. 3. The Veteran’s kidney disease is not related to service. 4. Prior to the promulgation of a Board decision, the Veteran withdrew on the record, his appeal of the issue of entitlement to service connection for hearing loss, tinnitus, and vertigo. CONCLUSIONS OF LAW 1. The criteria for service connection for lung disability, including left fibrothorax, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5107 (2017); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for service connection for a kidney disease have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5107 (2017); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for withdrawal of the appeal on the issue of entitlement to service connection for hearing loss, tinnitus, and vertigo have been met. 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January and November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a June 2018 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative by telling the Board of the decision to withdraw on the record at a Board personal hearing. Id. At the August 2016 Board hearing, prior to the promulgation of a decision by the Board, the Veteran with counsel present, informed the Board on the record that he wished to withdraw the appeals for the issues of entitlement to service connection for hearing loss, tinnitus, and vertigo. As the Veteran has withdrawn the appeal regarding those issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those issues, and they must be dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. VA examination The Veteran has not been afforded a VA medical examination related to the issues on appeal. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). With respect to an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The first element of the McLendon analysis, competent evidence of a current disability, is satisfied by competent and credible medical evidence. The Veteran has been treated for fibrothorax since 1998, hypertension since 2001, and kidney disease since 2009. The second prong, which requires evidence of an in-service event, has not been met. The Veteran’s service treatment records and post -service records are negative for an in-service injury associated with the current disabilities. Additionally, the record is devoid of any competent and credible lay or medical evidence confirming the Veteran’s exposure to lead and asbestos. The record is devoid of competent and credible lay or medical evidence relating asbestos and lead to the Veteran’s current disabilities. The Veteran has not articulated any competent and credible theory or provided competent and credible evidence by which his current disabilities can be related to service. The third and fourth element of the McLendon test, need not be addressed as the second prong of the analysis has not been met. As there is no indication in the evidence that the Veteran’s current disabilities are related to service, there is no duty to provide the Veteran with a VA examination. McLendon, 20 Vet. App. 79, 81; see 38 U.S.C. § 5103(d)(2); 38 C.F.R. § 3.159 (c)(4)(i). 1. Lung disability/ left fibrothorax The Veteran contends his current lung/left fibrothorax disability is the result of an injury in service, specifically asbestos exposure. However, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The Veteran alleges that he was stationed in Fort Bragg as a draftsman. In the summer of 1973 he spent at least 30 days in Camp Lejeune. While in Camp Lejeune, the Veteran assisted in setting up power lines, communication lines, and building roads. The Veteran believes he was exposed to asbestos while working as a general draftsman in Fort Bragg and during his time in Camp Lejeune. The duties of a general draftsman include drawing a variety of general drafting details such as diagrams, graphs, charts, and assisting personnel engaged in cartographic, art and drafting model making, and related activities. MOSDb. U.S. Military MOS Database. (2019). Retrieved from http://www.mosdb.com/army/81A/mos/4320/ There are no service personnel records in evidence confirming or denying the Veteran’s time in Camp Lejeune, however even if the Veteran was temporarily stationed there, a presumption of service connection would be established if the Veteran has a current diagnosis for an enumerated list of diseases, and fibrothorax is not listed. 38 C.F.R. § 3.307(a)(7). 38 C.F.R. § 3.309(f). Therefore, this claim could only be granted through direct service connection. 38 C.F.R. § 3.307. In addressing this claim through direct service connection, element one has been met because the Veteran has a current diagnosis of fibrothorax. However, element two, establishing in-service injury, and element three, nexus, of service connection, have not been met. According to private treatment records, in 1998, the Veteran was diagnosed with fibrothorax which has resulted in pleural thickening on his lungs. Service treatment records from June 1972 do not reflect any complaints, treatment, symptoms, or diagnosis for fibrothorax or any lung/pulmonary related disease. The University of Virginia Department of Radiology medical reports from 1998-2000 reflect a diagnosis and treatment for fibrothorax but there are no opinions relating the disability to service. According to private records from Dr. B., the Veteran was treated for pulmonary issues from 2001-2011. In August of 2011, the Veteran was admitted to the hospital for shortness of breath and swelling. The physician noted the Veteran’s past surgical history included a left lung biopsy. The Veteran was discharged with several diagnoses including dyspnea, probably secondary to chronic obstructive pulmonary disease. An August 2011 cat scan of the Veteran’s chest revealed an impression of atelectasis in the left lower lung with reduction in left lung volume. Another view of the August 2011 cat scan revealed pleural thickening in the left lower lung and left costophrenic angle with scarring at the left lung base. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. Nevertheless, the M21-1 (Developing Claims for SC for Asbestos-Related Diseases) does provide guidance. The guidelines, which have been updated through the years, provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. In accordance with M21-1, IV.ii.2.C.2.b. (General Effects of Asbestos Exposure) (November 2, 2016), inhalation of asbestos fibers can produce various lung ailments, including: “fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis,” tumors, pleural effusions and fibrosis, pleural plaques, mesothelioma and other cancers of the lung. With respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). In Dyment, 13 Vet. App. At 145, the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1 MR, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA. O.G.C. Prec. Op. No. 04-00. The applicable section of the M21-1 notes a Veteran’s probability of asbestos exposure can be classified by military occupational specialty (MOS). Each claim based on asbestos exposure must be adjudicated on its own merit with MOS being one consideration in determining whether there was an exposure event. If the Veteran served in the Navy, and the MOS is listed as minimal, probable, or highly probable, asbestos exposure should be conceded for the purposes of scheduling an examination. However, if the exposure is based on an event or other occupational experience, direct medical opinion is required. See M21-1, pt. IV, subpart ii, § 1.I.3.c. Some of the major occupations involving exposure to asbestos include: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products, such as clutch facings and brake linings, and manufacture roofing and flooring materials, asbestos cement sheet and pipe products, and, military equipment. It should be noted exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See M21-1, pt. IV, subpart ii, § 2.C.2.d. For asbestos exposure in occupational capacities not included in the MOS, evidence that is probative of (serves to establish) asbestos exposure may be used to support a determination that asbestos exposure occurred. Determining whether evidence proves a Veteran was exposed to asbestos requires an evaluation of all of the evidence in the case, including an assessment of the credibility of the evidence, and whether the evidence establishes that the exposure occurred. The United States Court of Appeals for Veterans Claims (Court) has held that when VA relies on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. Overton v. Wilkie, 30 Vet. App. 257, 259 (2018). Here, the record is devoid of credible evidence supporting exposure of asbestos. In the copious private treatment records, beginning 24 years after service, none suggest the Veteran’s left lung disability might in in any way be related to asbestos exposure—whether during the Veteran’s service, or at any other time. The Veteran was a draftsman in service for two years and his personnel records do not indicate he was exposed to asbestos or he performed duties that might have led to asbestos exposure. The Veteran has not submitted or identified any competent and credible evidence, such as a medical opinion, addressing the Veteran’s case of lung disabilities, and suggesting a link between his claimed disability and asbestos exposure. The Board notes the Veteran’s left lung disability is not related to service in any other way. Indeed, medical records are silent as to any possible link between the Veteran’s current diagnosis, service, and alleged asbestos exposure. In this case, the record does not reflect, that any pulmonary disability began during service. The Board has cited to M21-1 for general guidance concerning the development and consideration of asbestos-related claims. The Veteran has been diagnosed with a lung disability, however the record does not support exposure to asbestos. Military records fail to demonstrate evidence of asbestos exposure during service. The Veteran’s occupation, draftsman, is not an occupation that might have led to exposure and the Veteran has not submitted any competent evidence to support a nexus for asbestos exposure. The Board has no evidence, other than the Veteran’s statement, supporting asbestos exposure and a nexus. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). The Board finds that relating a current diagnosis of a lung disability to possible asbestos exposure in service is a complicated medical question that not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Whether the Veteran has an asbestos-related disease associated with in-service exposure requires specialized medical knowledge and are not capable of lay observation. Therefore, a preponderance of the evidence is against a finding that fibrothorax began during service, was the result of in-service asbestos exposure, or is related to service in any other way. Accordingly, service connection for lung disability/ left fibrothorax must be denied. 2. Hypertension and kidney disease The Veteran contends his current kidney disease is the result of an injury in service, specifically lead exposure. The Veteran also contends his current hypertension is secondary to his kidney disease and a result of lead exposure. However, the Board finds that the preponderance of the evidence is against the Veteran’s claim. During the June 2018 Board hearing, the Veteran provided testimony indicating he painted an entire building using lead paint with no protection for his detachment while in the army and he believes this exposure lead to his hypertension and kidney disease. Service treatment records from June 1972 do not reflect any complaints, treatment, symptoms, or diagnosis for hypertension or any kidney disease. According to private treatment records, the Veteran has been treated for hypertension since 2001 and kidney disease since 2009. The records from Dr. B from 2001-2009 reflect treatment for hypertension. In February 2005, the Veteran reported a family history of hypertension to his doctor. Additionally, during the Veteran’s treatment with Dr. B., he was given two echocardiogram’s (Echo). Results from the June 2005 echo report revealed mild tricuspid regurgitation with evidence of pulmonary hypertension. Results from the February 2009 echo revealed concentric left ventricular hypertrophy with normal function and ejection fraction of about 65 percent with diastolic dysfunction. According to medical records from Alleghany Medical Services reports in 2010, the Veteran was treated for hypertension, however there were no opinions relating the Veteran’s hypertension to kidney disease or lead exposure. The private treatment records beginning in 2007 reflect treatment for chronic kidney disease. In February 2009, the Veteran was admitted to the hospital with chest pains and chills. The physician gave the Veteran an ultrasound for his kidneys. The results of the ultrasound revealed the Veteran had a nonobstructive right kidney stone and a cyst on his left kidney. The physician diagnosed the Veteran with right kidney stone and discharged him. A March 2009 cat scan of the Veteran’s kidneys revealed an impression of nephrolithiasis with 2.5 mm of nonobstructive calculus in the right kidney. In August of 2011, the Veteran was admitted to the hospital for shortness of breath and swelling. The physician noted the Veteran’s past medical history included chronic kidney disease and hypertension. The Veteran was discharged with several diagnoses including chronic kidney disease and hypertension. In the copious private treatment records, there are no competent medical opinions providing a connection between an in-service injury, the current diagnosis, and a nexus to lead exposure while in the army for both the hypertension and kidney disease. The Board reviewed the Veteran’s “buddy” statement from the Veteran’s cousin (Cousin), dated for September 2013. The Cousin discusses his service in the Army while he was stationed in Fort Bragg, NC from 1990-1994. He indicated, in his supervisory position, he was assigned to run a work crew assigned to paint the 46 support group buildings. He was instructed to scrape the old paint chips off the World War II buildings because they contained lead. While the Cousin is competent to provide this statement, the Cousin is not competent of give a nexus opinion. Also, the record does not support the assertion that these were the same buildings the Veteran painted. Therefore, this evidence is not probative for the Veteran’s claim. The Board reviewed the article, submitted by the Veteran in July of 2018, on the regulatory review of lead in construction. The article fails to provide competent and credible medical evidence to indicate the current disabilities are related to lead poisoning. The article provides general definitions, exposure routes, and possible health effects of lead poisoning. The article fails to address the Veteran’s specific disabilities and how they are related to lead exposure. The article also fails to correlate the length of exposure required for any disease; specifically, the current diseases the Veteran has. The article is too broad and speculative to provide any indication that lead exposure is in any way related to the Veteran’s disabilities. The only lead exposure and nexus indication for the Veteran, is the Veteran’s lay testimony. The Veteran’s service personnel records do not confirm lead exposure nor does the Veteran’s duties, as a draftsman include painting. The record is devoid of any competent and credible medical evidence supporting the Veteran’s claim and the lay testimony alone is insufficient to establish nexus for service connection. See Jandreau, 492 F.3d at 1376-77. As kidney disease is not shown to be related to service, the Veteran’s claim of secondary service connection for hypertension must fail. See 38 C.F.R. § 3.310(a). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Additionally, the evidence does not reveal the Veteran’s hypertension diagnosis developed while he was in service or to a compensable degree within a year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran was not treated for hypertension until 2001. Therefore, a preponderance of the evidence is against a finding that hypertension and kidney disease began during service, was the result of in-service lead exposure, or is related to service in any other way. Accordingly, service connection for hypertension and chronic kidney disease due to lead exposure is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jackman, Associate Counsel