Citation Nr: 1328502	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  12-09 400	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for a bilateral 
shoulder disability.

2.  Entitlement to service connection for a bilateral knee 
disability.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for a respiratory 
disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Stephen Eckerman, Counsel


INTRODUCTION

The appellant served in the Air National Guard between 
February 1952 and August 1993, with active duty for training 
(ACDUTRA) from May 8, 1957 to May 13, 1957, from September 
28, 1957 to October 4, 1957, and from March 15, 1958 to 
March 17, 1958.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 2011 rating decision of the 
Department of Veterans Affairs (VA) regional office (RO) in 
Cleveland, Ohio.  Jurisdiction over the appellant's claims 
file was subsequently transferred to the RO in Providence, 
Rhode Island.  In July 2013, the appellant was afforded a 
videoconference hearing the undersigned Veterans Law Judge.


FINDING OF FACT

The evidence of record does not demonstrate that the 
appellant has a shoulder disability, a knee disability, 
hypertension, or a respiratory disability, that was caused 
by his service.  


CONCLUSION OF LAW

A shoulder disability, a knee disability, hypertension, and 
a respiratory disability, were not caused by the appellant's 
service.  38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 
38 C.F.R. §§ 3.102, 3.159, 3.6 (2012);



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Service Connection

The appellant asserts that he is entitled to service 
connection for a shoulder disability, a knee disability, 
hypertension, and a respiratory disability.  He asserts that 
he injured his right shoulder while removing his "B-4 bag" 
from his car after a deployment to Andrews Air Force Base.  
He also argues that he sustained a left rotator cuff tear.  
He has stated that both injuries occurred while he was on 
active duty in 1991.  See appellant's statement (VA Form 21-
4142), received in December 2011; VA Form 21-4138, received 
in July 2011.  However, in his claim (VA Form 21-526), 
received in December 2010, the appellant indicated that he 
injured his shoulders in 1990, and during his July 2013 
hearing, he testified that he injured his shoulder in 1992.  
With regard to the claims for a bilateral knee disability, 
and hypertension, the appellant indicated that these 
conditions began in 1975.  Id.  With regard to his claim for 
a respiratory disability, the appellant has indicated that 
this condition began in 1985, and that it is related to 
exposure to asbestos while training airmen in firefighting 
duties.  Id.; appellant's statements (VA Form 21-4138s), 
received in January and February of 2011.  However, during 
his July 2013 hearing, he testified that it happened "out of 
the blue," about 30 years ago; he testified that he has 
never been told that he has asbestosis.  

The Board notes that during the appellant's July 2013 
hearing, it was argued that the appellant received private 
treatment for his shoulders shortly after his claimed 
injuries, and it was conceded that these records had not 
been associated with the claims file.  It was agreed that 
the record would be held open for 30 days to allow the 
appellant to obtain and submit this evidence.  However, 
there is no record to show that any medical evidence was 
ever received.  

In general, service connection may be established for a 
disability resulting from an injury suffered or disease 
contracted in the line of duty, or for aggravation of a pre- 
existing injury or disease in the line of duty.  38 U.S.C.A. 
§§ 1110, 1131.  Regulations also provide that 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 which was incurred in or aggravated by 
service.  38 C.F.R. § 3.303(d). 

The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 
2002) as "a person who served in the active military, naval, 
or air service, and who was discharged or released therefrom 
under conditions other than dishonorable."  The term "active 
military, naval, or air service" includes active duty, and 
"any period of active duty for training (ACDUTRA) during 
which the individual concerned was disabled or died from a 
disease or injury incurred or aggravated in line of duty, 
and any period of inactive duty training during which the 
individual concerned was disabled or died from an injury 
incurred or aggravated in line of duty."  38 U.S.C.A. § 
101(24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a) (2012); 
see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). 

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated while 
performing ACDUTRA or injury incurred or aggravated by 
inactive duty training (INACDUTRA).  38 U.S.C.A. §§ 101(24), 
106 (West 2002 & Supp. 2012).  Under 38 U.S.C.A. § 101(22) 
(a) and (c)  ACDUTRA means, in pertinent part, full-time 
duty in the Armed Forces performed by Reserves for training 
and full-time duty as members of the Army National Guard or 
Air National Guard of any State. 

A service connection claim based on a period of ACDUTRA must 
be based on a showing that a disease or injury was incurred 
or aggravated in the line of duty.  38 U.S.C.A. § 101(24).  
In the absence of such evidence, the period of ACDUTRA would 
not qualify as "active military, naval, or air service" and 
the claimant would not achieve veteran status for purposes 
of that claim.  See 38 U.S.C.A. § 101(2)-(24); Mercado-
Martinez v. West, 11 Vet. App. 415, 419 (1998).  For any 
period of INACDUTRA, there must be a showing of an injury 
incurred in or aggravated in line of duty.  Id.   

The VA General Counsel  has held that it was the intention 
of Congress when it defined active service in 38 U.S.C.A. § 
101(24) to exclude a period of INACDUTRA during which a 
member was disabled or died due to nontraumatic incurrence 
or aggravation of a disease process.  VAOPGCPREC 86-90, 56 
Fed. Reg. 45,712 (1990). 

In summary, when a claim for service connection is based 
only on a period of ACDUTRA or INACDUTRA, there must be 
evidence that the appellant became disabled as a result of a 
disease or injury incurred or aggravated in the line of duty 
during the period of ACDUTRA or an injury that was incurred 
in or aggravated by a period of INACDUTRA. See 38 U.S.C. §§ 
101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. 
Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 
Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 
11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 
466, 470 (1995)). 

In the absence of such evidence, the period of ACDUTRA or 
INACDUTRA would not qualify as "active military, naval, or 
air service," and the appellant would not qualify as a 
"Veteran" by virtue of the ACDUTRA or INACDUTRA service 
alone.  38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. 
at 324.

Pursuant to applicable law, disability compensation may also 
be recognized for "travel status-training duty," whereby the 
claimant has become disabled or died from an injury or 
covered disease incurred while proceeding directly to or 
returning directly from ACDUTRA or INACDUTRA.  In this 
instance, VA will determine whether such individual was so 
authorized or required to perform such duty, and whether the 
individual was disabled or died from an injury or covered 
disease so incurred.  In making such determinations, there 
shall be taken into consideration the hour on which the 
individual began to proceed or return; the hour on which the 
individual was scheduled to arrive for, or on which the 
individual ceased to perform, such duty; the method of 
travel performed; the itinerary; the manner in which the 
travel was performed; and the immediate cause of disability 
or death.  Whenever any claim is filed alleging that the 
claimant is entitled to benefits by reason of this 
paragraph, the burden of proof shall be on the claimant.  38 
C.F.R. § 3.6(e). 

Presumptive periods do not apply to periods of ACDUTRA or 
INACDUTRA.  Biggins v. Derwinski, 1 Vet. App. 474, 477-78 
(1991). 

To the extent that a claim has been presented based on 
exposure to asbestos during service, there is no specific 
statutory guidance with regard to asbestos-related claims, 
nor has the Secretary promulgated any regulations in regard 
to such claims.  However, the VA Adjudication Procedure 
Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C 
(Manual), provides information concerning claims for service 
connection for disabilities resulting asbestos exposure.  
The date of this amended material is December 13, 2005.  The 
United States Court of Appeals for Veterans Claims (Court) 
has held that VA must analyze an appellant's claim for 
service connection for asbestosis or asbestos-related 
disabilities under the appropriate administrative 
guidelines.  Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty 
v. Brown, 4 Vet. App. 428 (1993). 

The Manual defines "asbestos" as a fibrous form of silicate 
mineral of varied chemical composition and physical 
configuration, derived from serpentine and amphibole ore 
bodies.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 
Subsection (a).  Common materials that may contain asbestos 
are steam pipes for heating units and boilers, ceiling 
tiles, roofing shingles, wallboard, fire-proofing materials, 
and thermal insulation.  Id. at Subsection (a).  Some of the 
major occupations involving exposure to asbestos include 
mining, milling, shipyard work, insulation work, demolition 
of old buildings, carpentry and construction, manufacture 
and servicing of friction products (such as clutch facings 
and brake linings), and manufacture and installation of 
products such as roofing and flooring materials, asbestos 
cement sheet and pipe products, and military equipment.  Id. 
at Subsection (f).  

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.  Id. at Subsection 
(b).  Inhalation of asbestos fibers can produce fibrosis 
(the most commonly occurring of which is interstitial 
pulmonary fibrosis, or asbestosis), tumors, pleural 
effusions and fibrosis, pleural plaques, mesotheliomas of 
pleura and peritoneum, and cancers of the lung, bronchus, 
gastrointestinal tract, larynx, pharynx, and urogenital 
system (except the prostate).  Id. at Subsection (b). 

The latent period for the development of disease due to 
exposure to asbestos ranges from 10 to 45 or more years 
(between first exposure and the development of disease).  
Id. at Subsection (d).  The adjudication of a claim for 
service connection for a disability resulting from asbestos 
exposure should include a determination as to whether or 
not: (1) service records demonstrate the veteran was exposed 
to asbestos during service; (2) development has been 
accomplished sufficient to determine whether or not the 
veteran was exposed to asbestos either before or after 
service; and (3) a relationship exists between exposure to 
asbestos and the claimed disease in light of the latency and 
exposure factors.  Id. at Subsection (h). 

The appellant's service records include a "report of 
separation and record of service" (NGB Form 22), which 
states that he had 32 years of service, and that his primary 
specialty number included "fire protection supt." 

The appellant's service treatment reports show that in 
October 1977, he was noted to complain of headaches, and to 
have blood pressure of 160/100.  Service treatment reports 
include a number of examination reports, dated between 1955 
and 1990, which show that the appellant was first noted to 
have hypertension in August 1978, at which time he was noted 
to use diazide for mild essential hypertension.  In a number 
of associated "reports of medical history" the Veteran 
indicated that he did not have shoulder or knee symptoms.  
The two most recent examination reports, dated in November 
1986 and November 1990, do not note hypertension, and show 
that his blood pressure was 126/82 (November 1986) and 
150/90 (November 1990).  In the associated "reports of 
medical history" to the November 1986 and November 1990 
examination reports, the appellant indicated that he had a 
history of high or low blood pressure, and he denied having 
shoulder or knee symptoms.  None of the service examination 
reports show that the appellant was found to have a 
shoulder, knee, or respiratory disorder.  In this regard, a 
November 1986 pulmonary function test notes a history of 
smoking one PPD (pack per day), quit 15 years before.  
Several notations, dated between 1977 and 1980, note that 
annual toxic solvents examinations showed that no evidence 
of toxicity was found by history or upon examination.  

As for the non-service medical evidence, it consists of VA 
and non-VA reports, dated between 2002 and 2013.  This 
evidence shows that the Veteran was repeatedly noted to have 
BA (presumably bronchial asthma) beginning in 2003.  It 
includes a number of PFTs which note a history of smoking, 
11 pack/years, quit in 1963.  A September 2007 chest X-ray 
was negative.  Reports, dated beginning in 2010, show that 
the Veteran was treated for a right shoulder disorder, and 
that he was noted to have hypertension.  In October 2011, 
the Veteran was treated for left shoulder symptoms, and was 
diagnosed with RCT (rotator cuff tear).  The report notes, 
"Never had treatment."  

The Board finds that the claims must be denied.  With regard 
to the claim for a bilateral knee disability, there is no 
medical evidence to show that the appellant currently has a 
knee disability.  See Gilpin v. West, 155 F.3d 1353 (Fed. 
Cir. 1998) (an appellant must submit proof of a presently 
existing disability resulting from service in order to merit 
an award of compensation).  For all claims, there are no 
line of duty reports of record.  In addition, there is no 
medical evidence to show that the appellant sustained any 
relevant injury during service, let alone during any of the 
verified periods of ACDUTRA.  Although the appellant has 
asserted, in essence, that he injured his shoulders while 
traveling at some point between 1990 and 1992, during a 
qualifying period of service, no such injury, or qualifying 
service, is shown.  To the extent that the Veteran has 
asserted that he has a respiratory disability due to 
exposure to asbestos, even assuming such exposure, there is 
no medical evidence linking his asthma to exposure to 
asbestos.  Finally, although the appellant was noted to have 
hypertension during his service, there is no evidence to 
show that he became disabled as a result of hypertension 
that was incurred or aggravated in the line of duty during 
the period of ACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 
38 C.F.R. § 3.6(a); Donnellan.  In summary, there is no 
evidence to show that a disease or injury involving the 
appellant's shoulders, knees, respiratory system, or 
hypertension, was incurred or aggravated in the line of 
duty.  38 U.S.C.A. § 101.  Accordingly, the claims must be 
denied.  

With regard to the appellant's own contentions, a layperson 
is generally not capable of opining on matters requiring 
complex medical knowledge.  Lay testimony is competent, 
however, to establish the presence of observable 
symptomatology and "may provide sufficient support for a 
claim of service connection."  Layno v. Brown, 6 Vet. App. 
465, 469 (1994).  The issues on appeal are based on the 
contention that a shoulder disability, a knee disability, 
hypertension, and a respiratory disability, are related to a 
qualifying period of service.  Although lay persons are 
competent to provide opinions on some medical issues, see 
Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the 
specific issues in this case, this falls outside the realm 
of common knowledge of a lay person.  See Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Given the 
foregoing, the Board finds that the service records, and the 
medical evidence, outweigh the appellant's contentions to 
the effect that he has a shoulder disability, a knee 
disability, hypertension, and a respiratory disability, due 
to his service.  

The Board has considered the applicability of "benefit of 
the doubt" doctrine, however, the record does not 
demonstrate an approximate balance of positive and negative 
evidence as to warrant the resolution of these matters on 
that basis.  38 U.S.C.A. § 5107(b). 


II.  Duties to Notify and Assist

The Board is required to ensure that the VA's "duty to 
notify" and "duty to assist" obligations have been 
satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 
C.F.R. § 3.159 (2012).  The notification obligation in this 
case was accomplished by way of a letter from the RO to the 
appellant dated in January 2011.  Quartuccio v. Principi, 16 
Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 
112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), 
rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  

The RO also provided assistance to the appellant as required 
under 38 U.S.C.A. § 5103A  and 38 C.F.R. § 3.159(c), as 
indicated under the facts and circumstances in this case.  
It appears that all known and available service treatment 
reports, and non-service records relevant to the issues on 
appeal have been obtained and are associated with the 
appellant's claims files.  The RO has obtained the 
appellant's VA and non-VA medical records.  

The appellant has not been afforded VA examinations, and 
etiological opinions have not been obtained.  Under McLendon 
v. Nicholson, 20 Vet. App. 79 (2006), in disability 
compensation (service connection) claims, the VA 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 manifest 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 the 
veteran's service or with another service-connected 
disability, but (4) insufficient competent medical evidence 
on file for the VA to make a decision on the claim. 

With regard to the claims for shoulder and knee 
disabilities, and a respiratory disability, the appellant's 
service treatment reports do not show any relevant 
complaints, treatment, or findings, providing evidence 
against the claims.  These reports note the existence of 
hypertension, however, the appellant is not shown to have 
active duty service, and there is no evidence to show that 
the appellant became disabled as a result of hypertension 
that was incurred or aggravated in the line of duty during 
the period of ACDUTRA.  Therefore, the second McLendon 
criterion is not satisfied. 

With regard to the third McLendon criterion, the earliest 
medical evidence of hypertension is dated no earlier than 
1978, the earliest medical evidence of asthma is dated no 
earlier than 2003, and the earliest evidence of a shoulder 
disability is dated no earlier than 2010.  There is no 
competent or credible lay or medical evidence to show that 
the appellant has a knee disorder.  There is also no 
competent or credible lay or medical evidence to show that 
any of the claimed disabilities are related to any period of 
ACDUTRA or INADCUTRA service, and there are no relevant line 
of duty reports of record.  Therefore, an examination and an 
etiological opinion need not be obtained for any of the 
claims.  McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); 
Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). 

Based on the foregoing, the Board finds that the Veteran has 
not been prejudiced by a failure of VA in its duty to 
assist, and that any violation of the duty to assist could 
be no more than harmless error.  See Conway  v. Principi, 
353 F.3d 1369 (Fed. Cir. 2004). 


ORDER

Service connection for a shoulder disability, a knee 
disability, hypertension, and a respiratory disability, is 
denied.  



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs



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