Citation Nr: 0711459 Decision Date: 04/18/07 Archive Date: 05/01/07 DOCKET NO. 05-12 506 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 2. Entitlement to service connection for a respiratory disability, to include as due to exposure to asbestos. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Saadat, Counsel INTRODUCTION The veteran had active military service from January 1955 to September 1959. This case comes to the Board of Veterans' Appeals (Board) from a January 2004 rating decision. The Board is denying the claim for service connection for a respiratory disability and reopening the claim for service connection for low back disability. This latter claim for service connection (on the merits), as well as the claims for service connection for bilateral hearing loss and for tinnitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. By a final February 1970 decision, the Board denied service connection for a back disability (the decision itself focused on the veteran's low back); evidence received since the February 1970 Board decision is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 2. No competent medical evidence reflects that the veteran currently has a respiratory disability which was caused by any incident of service (including alleged exposure to asbestos). CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the claim for service connection for a low back disability is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2006). 2. Service connection for a respiratory disability, including as due to exposure to asbestos, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006); VAOPGCPREC 4-2000 (April 13, 2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim concerning a low back disability By a February 1970 decision, the Board denied service connection for a back disability, in part because evidence had not been submitted to reflect that a preexisting, congenital low back condition was subject to a superimposed injury during active duty. To date, the Chairman of the Board has not ordered reconsideration of this decision and therefore it is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In November 2002, the veteran again sought service connection for a low back disability. To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108. "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). No other standard than that articulated in the regulation applies to the determination whether evidence is new and material. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Evidence obtained in connection with the attempt to reopen includes written statements submitted (between October 2003 and June 2004) by the veteran's buddies, who recounted two incidents which apparently occurred during active duty: an automobile accident in November 1956 and an attempt to steady a liberty boat in rough seas in January 1957 (during the rescue of a man who had fallen overboard). The veteran has asserted that he injured his low back during both incidents. In any case, these statements are presumed credible for the purposes of reopening the claim unless they are inherently false or untrue, or are beyond the competence of the persons making the assertions. Duran v. Brown, 7 Vet. App. 216, 220 (1995). Nothing in these written statements (each of which essentially recount what the buddies observed during the incidents) appears inherently false or untrue, and the individuals are certainly competent to recount what they saw. The veteran also submitted (in June 2004) a deck log indicating that an individual fell into the water attempting to climb aboard the USS Bremerton in January 1957. These documents were not considered previously, are so significant that they must be reviewed in connection with the current claim, and raise a reasonable possibility of substantiating the claim. The veteran has therefore presented new and material evidence to reopen the claim for service connection for a low back disability. Consideration may be given to the entire evidence of record without regard to any prior denials. However, further evidentiary development is necessary into the now-reopened claim, and discussion about VA's duties to notify and assist will be included in a later decision (if the claim remains denied following remand). II. Claim concerning a respiratory disability A. Duties to notify and assist Because the Board is denying the claim for service connection for a respiratory disability (as detailed below), it will first consider whether VA has fulfilled its notice and assistance requirements under the law. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The RO advised the veteran of the first three elements required by Pelegrini II in a July 2003 letter. Furthermore, a March 2006 letter advised the veteran that if he had "any information or evidence that you have not previously told us about or given to us, and that information or evidence concerns the level of your disability or when it began, please tell us or give us that evidence now." Thus, he may be considered to have effectively been advised to submit all pertinent evidence in his possession. The March 2006 letter also advised the veteran concerning the type of evidence necessary for a disability rating and an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although proper notice was provided after the initial adjudication of the veteran's claim, he was not prejudiced by this harmless error. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA satisfied its notice requirements and adjudicated the claim for service connection multiple times during this appeal (by its January 2004 rating decision and March 2005 statement of the case). Remanding this case merely for another readjudication following the March 2006 letter would serve only to delay a Board decision on the merits. The claims file includes (in pertinent part) service medical records, VA and private clinical records, written statements from the veteran and his representative, and the transcript of the veteran's September 2006 Board hearing. The veteran has twice been sent a complete copy of his claims folder (in August 2003 and May 2006), and neither he nor his representative have reported the existence of additional, missing evidence despite notice that they could do so. A VA examination is not necessary because, as detailed below, there is no competent evidence of a current respiratory disability. 38 C.F.R. § 3.159(c)(4)(i)(A). VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, the veteran is not prejudiced by the Board's adjudication of this claim. B. Service connection 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, 1131. "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. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. Finally, a veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. In a June 2003 written statement, the veteran asserted that he had been exposed to asbestos while working in the engine rooms of the USS Hooper, the USS Taussig, and the USS Bremerton. He claimed that he currently needed an inhaler to ease breathing problems. There is no specific statutory guidance regarding claims for service connection for asbestos-related disease, nor has VA promulgated any such regulations. However, VA has provided some guidelines for considering compensation claims based on exposure to asbestos, and these are set forth in VA's revised Adjudication Procedure Manual, M21-1MR. The manual notes that asbestos fiber masses 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 pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Occupations involving asbestos exposure include shipyard and insulation work, manufacture and servicing of friction products such as clutch facings and brake linings, etc. Many people with asbestos-related diseases have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of disease. In addition, exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). Nevertheless, the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). See also VAOPGCPREC 4-2000. In this case, none of the service medical records reflect any specific complaints of respiratory symptoms. At his January 1955 enlistment examination, the veteran denied any history of asthma, shortness of breath, pain or pressure in chest, or chronic cough. Examination revealed normal lungs and chest, and chest x-rays taken in January 1955, January 1956, January 1958 were all normal. At a December 1958 "apprehended for desertion" examination, the veteran again denied any history of asthma, shortness of breath, pain or pressure in chest, or chronic cough, and examination revealed normal lungs and chest. Regardless of whether the veteran was actually exposed to asbestos while aboard ships or at any other time during active duty, the evidence fails to reflect that he has a current respiratory disability. In March 2001 (over two years before filing his claim for service connection in June 2003) the veteran sought private outpatient treatment for cold-like symptoms (including spastic cough and nasal congestion). He was diagnosed as having viral upper respiratory infection with bronchitis. In June 2003, he was seen in a VA facility complaining of shortness of breath. He also reported that he had been exposed to asbestos while in the Navy. A chest x-ray revealed a mildly ectactic ascending aorta, but no findings were made concerning the lungs. An August 2003 CT scan of the chest revealed clear lungs with no evidence of any nodular density or infiltrate or pleural fluid. The mediastinal and hilar structures were normal with no evidence of adenopathy. The impression was normal. The veteran was seen in a VA outpatient setting in February 2005 for complaints of heaviness in his chest and shortness of breath (along with dizzy spells, weakness, and a "funny feeling" regarding his heartbeats). On examination, his lungs were clear to auscultation, and he was assessed as having hyperglycemic reaction (no assessment or diagnosis concerning any respiratory disability was made). The claims file includes numerous other VA treatment records dated from July 2002 through March 2005. None of these reflect any diagnosis of asbestosis or any other respiratory disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the veteran himself has claimed he has a respiratory disability due to exposure to asbestos in service (or otherwise related to his active duty), as a layman he has no competence to give a medical opinion on the diagnosis of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The preponderance of the evidence is against the claim for service connection for a respiratory disability, to include as due to exposure to asbestos; thus the benefit-of-the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for service connection for a low back disability is reopened and to this extent the appeal is granted. Service connection for a respiratory disability, to include as due to asbestos, is denied. REMAND Low back disability A summary of the relevant evidence reveals why a new VA examination of the veteran's low back is needed. Service medical records reflect that he was not found to have any low back disability (or history thereof) at his January 1955 enlistment examination. A summary of sick calls indicates that he was given heat treatment after complaining of sore back muscles in November 1956. In February 1957 he was treated at sick call for a "sprained back," although an x- ray was negative. At his January 1958 reenlistment examination, his spine was normal. In September 1958, he was seen at sick call complaining of a three-week history of back pain, near the meeting of the thoracic and lumbar region. At a subsequent consultation, he was noted to have some pain on stress of the lumbosacral area, but was otherwise negative. Later in September 1958, it was noted that he had markedly increased lumbosacral angle (about 90 degrees overall) and bilateral spondylolysis, L5. The examiner noted that the veteran's symptoms could be overcome by proper posture if he were well motivated for service (this, however, was not the case). Consequently, it was suggested that he be hospitalized for purposes of medical survey. The consultation examiner diagnosed the veteran as having defect, bone fusion, neurocentral synchrondrosis, bilateral L-5. In October 1956, the veteran was admitted to the US Naval Hospital in San Diego for evaluation. He stated that his back had not caused him trouble prior to his entry into the service, but that since enlistment his back hurt most of the time. The discomfort was aggravated by standing, bending, and lifting. Examination revealed accentuated lumbar lordosis, although range of motion was essentially normal. Roentgengraphic examination of the back was unremarkable except for the accentuated lumbosacral angle and bilateral spondylolysis of the L5 vertebrae. The hospitalization report noted that the veteran's subjective symptoms (coupled with his verbally-expressed desire to leave the military and his radiologically demonstrable defects of bone fusion in the lumbosacral spine) offered an extremely poor prognosis for continued useful military service. Prior to appearing before a Board of Medical Survey, the veteran left the hospital without authorization, and was declared a deserter in early November 1958. He was apprehended by the FBI in late December 1958, however, and was handed over to the Navy Shore Patrol. He was returned to the hospital in January 1959 from the brig because of complaints of low back pain. He stated that on his unauthorized leave, he had opened a gas station but because of persistent low back pain, he had to hire a second person to do most of the heavy work. Following an examination, it was concluded that he had a bilateral defect in fusion at the lumbosacral articulation. It was the Medical Board's opinion that "the defect existed prior to entry into service and that the natural course of this anomaly has not been materially affected by his duty in the service." It was also the Medical Board's opinion that the veteran was unfit for retention in the naval service. Nevertheless the veteran was again returned to duty status. He reportedly continued to have persistent, non-radiating low back pain, which occurred daily and was directly proportionate to the amount of standing and walking that he did. He said that because of this pain he was unable to perform his duties properly. He was admitted to the US Naval Hospital in Chelsea, Massachusetts, in August 1969 for disposition. X-rays again revealed bilateral spondylolysis of the fifth lumbar vertebra without displacement of L5 on S1. This diagnosis was later changed "by reason of error" to defect, bone fusion, neurocentral, synchondrosis L5, bilateral. The Medical Board again concluded that the veteran's back "defect existed prior to entry into service and that the natural course of this anomaly has not been materially affected by his duty in the service." The veteran was discharged from active duty in September 1959 with a general discharge under honorable conditions by reasons of physical disability. He has presented evidence of a current back disability: a January 2005 CT scan of the lumbar spine revealed disk bulging at L3-4, L4-5 (extending slightly more towards the left), and at L5-S1 (extending a little more towards the left but without significant nerve root impingement). There were degenerative changes involving facet joints, particularly at L4-5, with vacuum phenomenon in the joints. As noted above, the Medical Board concluded that the veteran had a preexisting and congenital back defect, the natural course of which had "not been materially affected by his duty in the service." Congenital or developmental defects are not "diseases" or "injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). However, service connection may be warranted where a congenital or developmental defect is subject to a superimposed injury or disease. VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)). The veteran has submitted several buddy statements in support of his claim that he had two superimposing injuries to his back during service. In a written statement submitted in October 2003, a buddy of the veteran wrote that in November 1956 he and the veteran were hitchhiking in California when they were picked up in a vehicle. The driver apparently fell asleep and drifted off the road into gravel. After waking and suddenly turning the wheel, the driver reportedly caused the car to roll four or five times. The veteran and his buddy were able to crawl out and eventually continued hitchhiking. (As noted above, service medical records confirm that the veteran complained of sore back muscles at a November 1956 sick call). In multiple statements submitted in June 2004, four buddies recounted how they (along with the veteran) had been aboard a liberty boat that was returning from Formosa to the USS Bremerton in January 1957. The boat approached the ship in very rough seas and one man apparently fell overboard while attempting to climb on a ladder. In the course of the man's rescue, the veteran (with another individual) apparently helped brace the liberty boat with their bodies so that it would not crush the man against the ship. One of the buddies recounted how the veteran complained of having injured his back as a result of this incident. The veteran has also submitted a deck log indicating that an individual fell into the water attempting to climb aboard the USS Bremerton in January 1957. (As noted above, the veteran complained of a "sprained back" during a February 1957 sick call). To date, the veteran has not undergone a VA examination for an opinion as to the diagnosis or etiology of any current low back disability. This should be done on remand (as detailed below). Hearing loss/tinnitus There is evidence that the veteran has hearing loss and tinnitus. Following a July 2000 private outpatient visit, he was noted to have chronic tinnitus, and after an October 2001 private audiology examination, the impression was moderate to moderately severe bilateral high frequency sensorineural hearing loss. He has made a number of claims concerning in-service noise exposure. For example, in a November 2002 written statement, he asserted that he lost his hearing for several days after participating in target practice (which apparently involved 5-inch guns firing near him). He asserted that he was never issued any hearing protection during active duty. In a June 2004 statement, he gave a highly detailed account of being exposed to noise while working in engine rooms aboard three ships, as well as guns firing during gun firing practices (all without ear protection). In a September 2006 written statement, he asserted that he had been a machinist's mate in the steam turbine room, and was exposed to noise from steam bilge pumps, lube oils pumps, condensate pumps, air compressors, air pumps, and reduction gears. At his Board hearing, he asserted that his ears had been ringing ever since a gun unexpectedly fired over his head in the Navy. He apparently went to sick bay and was told that his hearing loss and tinnitus symptoms would simply "go away." Despite this, the veteran apparently could not hear for three or four days (and felt as if he were in a "vacuum" during that period). Service medical records do not reflect any complaints of or treatment for hearing loss or tinnitus. Indeed, the veteran's hearing was noted to be normal (15/15 whispered hearing) at a January 1955 enlistment examination, a January 1958 reenlistment examination, and a December 1958 "apprehended for desertion" examination. A "Sick Call Treatment Record" documents visits the veteran made between March 1956 and July 1957 for a range of maladies, including sore feet, boils, headache and cold, ingrown toe nail, sore back muscles, a foreign body in his eye, and upset stomach. None of the 16 entries on this document reference complaints of hearing loss or tinnitus, however. Nevertheless, the veteran is certainly competent to say whether he experienced symptoms like hearing loss or ringing in the ears. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (ringing in the ears is capable of lay observation). The claims file contains two DD Form 214s, one for each period of active duty. Neither document reveals the veteran's military occupational specialty. However, a DD Form 256N (Certificate of Discharge) for his first period of active duty (from January 1955 to January 1958) indicates that he served aboard the USS Bremerton and the USS Hooper, and was a machinist's mate, 3rd class. Similarly, a Navy Personnel Form 661 (General Discharge) for the second period of active duty (January 1958 to September 1959) indicates that he served aboard the USS Hooper and the USS Taussig, and again was a machinist's mate, 3rd class. This evidence suggests that the veteran's reports of having been exposed to noise aboard ships in an engine room setting are credible. The question remains as to whether there is any link between the veteran's in-service noise exposure and any current hearing loss and/or tinnitus. A VA medical examination and opinion is therefore necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to determine the nature and etiology of any low back disability. The claims folder must be reviewed prior to the examination. Any tests and/or x-rays deemed necessary should be performed. The following questions should be answered and the rationale for any medical opinions given should be discussed in detail: a. Does the veteran currently have a low back disability, to include arthritis? b. If so, did he enter active duty with a preexisting low back disability? i. If the veteran entered active duty with a preexisting congenital low back disability, was it subject to a superimposed injury or disease during active duty? ii. If the veteran entered active duty with a non- congenital preexisting low back disability, did it undergo an increase in severity during service? If so, did the increase in severity during service represent the natural progress of the disability? c. If the veteran did not enter service with a preexisting low back disability, is it at least as likely as not that the currently diagnosed low back disability is related to symptomatology shown in the service medical records, or was manifested within one year of discharge in September 1959? 2. Schedule the veteran for a VA ear examination, to include audiological testing. After the audiological testing is conducted, the ear examiner should review the veteran's medical records and answer the following questions: a. Does the veteran currently have bilateral hearing loss and/or tinnitus? b. If so, is it is at least as likely as not (i.e., probability of at least 50 percent) that the hearing loss and/or tinnitus is related to noise exposure during active duty, or was manifested to a compensable degree within one year of the veteran's separation from active duty in September 1959, or otherwise had its onset in service? 3. Thereafter, readjudicate the claims for service connection. If any of these claims remain denied, provide the veteran and his representative with a supplemental statement of the case that summarizes the evidence and discusses all pertinent legal authority. Allow an appropriate period for response and return the case to the Board, if in order. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of these claims as a result of this action. All remands require expeditious handling. 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ STEVEN L. KELLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs