Citation Nr: 0400088 Decision Date: 01/05/04 Archive Date: 01/21/04 DOCKET NO. 03-04 645 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for restrictive lung disease, claimed as due to asbestos exposure in service. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from March 1956 to March 1960. This matter comes to the Board of Veterans' Appeals (Board) from a September 2001 RO decision that denied service connection for restrictive lung disease, claimed as due to asbestos exposure in service. A Board hearing was scheduled for September 2003, but the veteran failed to report for the hearing. FINDINGS OF FACT The veteran's current restrictive lung disease began many years after service, and it was not caused by any incident of service including asbestos exposure. CONCLUSION OF LAW Restrictive lung disease, claimed to be due to asbestos exposure in service, was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran claims service connection for restrictive lung disease. He maintains that this current condition is due to exposure to asbestos while serving as a boiler tender aboard ship in the Navy. The file shows that through correspondence, the rating decision, and the statement of the case, the veteran has been notified with regard to the evidence necessary to substantiate his claim, and of his and the VA's respective duties to obtain evidence. In April 2001, the RO sent correspondence to the veteran informing him of his rights and responsibilities under the Veterans Claims Assistance Act of 2000. The letter informed the veteran of the evidence needed to substantiate his claim, and indicated that the VA would assist him in obtaining any pertinent evidence he would identify. Identified medical records have been obtained. A VA examination was conducted in September 2001. A Board hearing was scheduled for September 2003, but the veteran failed to report for the hearing. The Board finds that the notice and duty to assist provisions of the law have been satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran served on active duty in the Navy from March 1956 to March 1960. His service medical records show no lung disease. His March 1960 service separation examination shows that the lungs and a chest X-ray were normal. His service personnel records indicate that he served as a boiler technician (or boiler tender) aboard the USS Fort Snelling for over three years. A statement from the service department in September 2001 noted that, given the veteran's boiler technician duties, it was highly probable that he was exposed to asbestos during his service. Post-service medical records include a VA examination in December 1965, and this noted that his lungs were clear. Subsequent VA examinations in May 1966, February 1972, September 1972, and September 1991, were also silent as to complaints, findings, or diagnosis of a lung disorder. A number of records note the veteran worked for years after service as a roofer. The first post-service evidence of restrictive lung disease is dated in February 2000, almost 40 years after service. The veteran was given a VA respiratory examination in September 2001. The examiner noted the history of asbestos exposure in service. The veteran reported that he has never been a smoker. Physical examination did not show any presence of clinically occult pulmonaria, alveoli-pulmonary hypertension. Pulmonary function studies showed restrictive lung disease. X-ray examination of the chest revealed the lungs to be clear. The diagnosis was chronic restrictive lung disease. The VA examiner opined that it is as likely as not that the lung disorder was due to another cause, other than the reported asbestos exposure in service. Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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 Veteran's Benefits Administration Manual M21-1, Part VI, 7.21. The manual notes that asbestos particles 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. The manual notes that lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. 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. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people 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 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 manual goes on to say that 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. It should be noted that 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. The evidence shows that it is likely that the veteran had exposure to asbestos in the Navy, due to working as a boiler tender. He may also well have had asbestos exposure after service, due to working as a roofer. A chronic lung disorder was not shown during his active duty or for almost 40 years later. He has recently been diagnosed with restrictive lung disease. He has not been diagnosed with asbestosis. The recent VA examiner essentially opined that the veteran's current restrictive lung disease was not due to reported asbestos exposure in service. There is no contrary medical opinion. As a layman, the veteran has no competence to give a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The weight of the credible evidence establishes that the veteran's current restrictive lung disease began many years after service, and it was not caused by any incident of service including asbestos exposure. The claimed condition was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection for restrictive lung disease, the benefit- of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for restrictive lung disease, claimed as due to asbestos exposure in service, is denied. ____________________________________________ L.W. TOBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2