Citation Nr: 0724777 Decision Date: 08/10/07 Archive Date: 08/20/07 DOCKET NO. 04-20 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a respiratory disability to include a due to asbestos exposure. 2. Entitlement to service connection for colon cancer to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from January 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In October 2004, the veteran testified at a personal hearing in Washington, D.C., before the undersigned. The claim of entitlement to service connection for colon cancer, is properly before the Board, but will not be adjudicated at this time. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006) that reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides; VA disagrees with the Court's decision in Haas and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by the decision in Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. In this case, the veteran had service on a vessel off the shore of Vietnam. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will resume. FINDINGS OF FACT The veteran does not have a diagnosed respiratory disorder. CONCLUSION OF LAW A respiratory disorder was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in April 2003 fully satisfied the duty to notify provisions. 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 claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where 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). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As to claims involving service connection for asbestos- related disease, there are no special statutory or regulatory provisions. However, the VA has provided adjudicators with some guidelines in addressing claims involving asbestos exposure, as set forth in Veterans Benefits Administration Manual M21-1, Part VI, 7.21. The manual notes that 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 mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. The latent period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). The clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. In reviewing claims for service connection, it must be determined whether or not military records demonstrate asbestos exposure in service; it should be determined whether or not there was asbestos exposure pre- service and post-service; and it should be determined if there is a relationship between asbestos exposure and the claimed disease. Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, 7.21 (January 31, 1997). The pertinent parts of 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. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Service medical records reveal that in September 1966, the veteran complained of coughing up blood; however, this was attributed to epitaxis. The lungs were clear. In October 1967, an x-ray indicated a suspicious finding in the left hilum. In a repeat x-ray in December 1967, the chest x-ray was normal. In July 1968, the veteran was seen for complaints of sore throat, chest congestion, and a productive cough. The veteran was provided antibiotics and Robitussin. On his October 1968 separation examination, the veteran's lungs and chest were normal. Post-service, the veteran was afforded a VA examination in June 1974. The respiratory examination revealed a clear chest. Chest x-rays revealed no abnormalities. In 1992, the veteran was seen for treatment of colon cancer by private physicians. July and October 1992 examinations of the lungs revealed that they were clear with no dullness. In November 1992, it was noted that a computerized tomography (CT) of the chest revealed that the lung fields were clear, but there was a slightly increased prominence of the paratracheal and right hilar lymph nodes which might be very early lung cancer. However, thereafter, all subsequent examinations to include physical evaluations, x-rays, and CT testing, were negative. These reports were dated through October 2000. The veteran was not diagnosed with lung cancer or any other respiratory disability. VA records reveal that the veteran was evaluated in February 2003. At that time, the veteran's lungs were clear to auscultation, bilaterally. Although it was noted that the veteran had a history of tobacco abuse, no current diagnosis of a respiratory disorder was rendered. In May 2003, the veteran was afforded a VA examination which confirmed the veteran's history of smoking. In October 2004, the veteran testified at a personal hearing. He indicated that he was exposed to asbestos during service. He related that he began having breathing problems about 20 years earlier, but did not go see a physician at that time or since that time. The veteran related that he smoked on occasion. He indicated that he has never been given a diagnosis of a respiratory disorder. The veteran felt that he had a respiratory disorder as he felt short-winded and not able to exert himself as much as he should be able to exert himself. In sum, the veteran was not diagnosed as having respiratory disease during service nor was there any injury to the lungs. He was treated on one occasion for a chest cold which resolved with treatment. His lungs and chest were normal on separation. The 1974 post-service VA examination was also negative for any lung abnormalities. When the veteran began treatment for colon cancer, he was afforded numerous and repeated respiratory evaluations. Although it was thought that he might have a lung abnormality consistent with lung cancer in 1992, the finding was not confirmed and all subsequent testing by the private physicians over the next 8 years were also negative for respiratory disability. The veteran was not diagnosed as having any respiratory disability. Likewise, in 2003, a VA evaluation was also normal. There is no confirmed post-service diagnosis of any respiratory disease and there is no current diagnosis of such. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the Court indicated that varicose veins were a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that 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), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The veteran is not reporting a contemporaneous disability. The veteran's assertions regarding symptoms of the claimed disability have not been supported by a later diagnosis of a medical professional. See Jandreau. While the veteran is competent to report shortness of breath and decreased exertional capacity, he is not competent to diagnose an underlying respiratory disease as this does not involve a simple diagnosis. Thus, the veteran's lay assertions of a current underlying respiratory disability are not competent or sufficient. There is no competent medical evidence that the veteran has a respiratory disability. The various treatment records show that there is no diagnosis of an underlying respiratory disease. A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau. Where the question requires medical expertise, medical evidence is required. See Espiritu. The competent evidence establishes that there is no current disability. Absent a current diagnosis, service connection is not warranted. Accordingly, service connection is denied. ORDER Service connection for a respiratory disability to include as due to asbestos exposure is denied. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs