Citation Nr: 0515258 Decision Date: 06/06/05 Archive Date: 06/15/05 DOCKET NO. 01-10 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disability, including as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1955 to January 1959, with subsequent reserve duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for asbestosis. In August 2003, the Board remanded the matter for additional development. FINDING OF FACT There is no current medical diagnosis of asbestosis or any other chronic lung disability. CONCLUSION OF LAW Service connection for a lung disability, to include as due to asbestos exposure in service is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). Regulations implementing the VCAA are at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. In August 2003, the Board remanded this matter, in part, to specifically ensure compliance with the VCAA's enhanced notice requirements. The Board finds that the mandates of the VCAA are met. The claim has been considered on the merits. The veteran was advised of VA's duties to notify and assist in the development of the claim. A February 2004 letter from the RO informed the veteran of his and VA's responsibilities in claims development, and specifically informed him of the type of evidence that was needed to establish this claim. This letter, the rating decisions in May and July 2000, the statement of the case (SOC) dated in October 2001, the Board Remand in August 2003, and the supplemental statement of the case (SSOC) in February 2005, all notified the veteran of applicable laws and regulations, of what the evidence showed, and why his claim was denied. While notice did not precede the initial rating decisions in this matter (obviously, as the decision preceded the VCAA), the claim was readjudicated after substantially full notice was given. See February 2005 SSOC. The veteran has had ample opportunity to respond, and is not prejudiced by any notice timing defect. Regarding notice content, the veteran was advised verbatim in the February 2004 letter to submit any evidence or information he may have pertaining to his appeal. Via this letter and prior correspondence, he was asked to identify or submit any additional medical evidence which may support the claim, advised of the type of evidence he needed to submit to establish his claim, and asked to assist in obtaining any outstanding medical records or any other evidence or information supporting the claim. Specifically noted in this regard were any records of clinical treatment or examination performed in association with January 1999 X-rays interpreted by Dr. RBL. He is not prejudiced by the Board's proceeding without any further notice; he has been notified of everything necessary. Regarding the duty to assist, the RO sought and obtained the veteran's service medical records and military personnel records, as well as records of his post-service medical treatment. In the August 2003 remand, the Board directed the RO to ensure compliance with all notice and assistance requirements set forth in the VCAA. This has been done. The veteran has not identified any pertinent evidence outstanding. VA arranged for VA examinations, including pursuant to Board remand in August 2003. There is nothing further for VA to do to assist him. VA's notice and assistance obligations are met. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Factual Background Military personnel records reflect that the veteran's duties in service were such that he may have been exposed to asbestos. Service medical records reveal no complaints or findings indicative of lung problems. On January 1959 examination prior to separation clinical evaluation of the lungs was normal. Clinical evaluation of the lungs was also normal on Reserve service examinations in November 1971, March 1973, and December 1976. A note on the December 1976 examination report indicated that a pulmonary function screening was also normal. RBL, MD, noted the following findings on a report of a January 1999 private chest X-ray: no mass observed within the lungs; definite bilateral interstitial fibrosis noted in the mid and lower lung zones with irregular linear interstitial markings delineated; and no pleural plaque, calcified plaque, pleural thickening, or hemidiaphragmatic plaque observed. In his summary, RBL, MD, included a notation of "[i]nterstitial fibrosis at the lung bases typical of previous asbestos exposure indicating asbestosis." In an April 1999 statement responding to questions from the RO regarding his claimed asbestos exposure, the veteran itemized each duty assignment in which believed he was exposed to asbestos during service. On VA examination in October 1999, it was noted that there were no records for review. The veteran reported a long history of shortness of breath increasing in severity over the past two years. He noted that a family doctor evaluated him with asbestosis. He indicated that he never had pulmonary studies done. The veteran stated that he smoked until 1978 and that he had a history of coronary artery disease. On physical examination, the veteran's lungs were clear to auscultation and percussion. There was no accessory muscle used in breathing. Chest X-rays and pulmonary function studies were ordered. The provisional diagnosis was asbestosis by history that does not interfere with his occupation or activities of daily living at this time. The interpretation on the report of a November 1999 lung study was possible restriction, and it was noted that the spirometric pattern was consistent with restriction although that diagnosis would not be made from the spirometry alone. Findings on November 1999 chest X-rays included the following: lungs show only minor coarsening of markings; no significant abnormality; no characteristic stigmata of asbestos exposure. The impression (for lung pathology) was no significant abnormality. Handwritten notes added to the report of the October 1999 examination, and signed November 1999, indicate that X-rays showed no evidence of asbestosis and that the pulmonary function test revealed mild restrictive disease. In a January 2000 statement, a private osteopath reported that the veteran had respiratory symptoms including shortness of breath, a dry cough and hoarseness. It was noted that the veteran reported a 27-year history of asbestos exposure. Physical examination revealed no abnormalities of the oropharynx, lungs, or extremities. Spirometry in November 1999 reportedly had revealed evidence of mild obstructive defect as noted by a FEV1/FVC ratio of 74%. Forced vital capacity was 3.98 liters or 82% predicted. FEV1 was 2.94 liters or 76 % predicted. Examination of the flow volume loop was consistent with an obstructive pulmonary process. It was noted that chest X-rays were performed in January 1999 and interpreted by RBL, MD (as reported above). The osteopath repeated the findings of RBL, MD, and stated that the veteran had a "diagnosis of asbestos lung disease established within a reasonable degree of medical certainty." In a June 2000 statement, the veteran indicated that his history of asbestos exposure was incorrectly reported as having been 27 years. He indicated that his exposure started in 1955 during service as previously described. Three statements received in July 2001 from retired servicemen essentially support the veteran's contention that there was asbestos exposure involved in his duty assignments during service. In a statement on his VA Form 9, the veteran essentially indicated why his history of asbestos exposure was during service, and not in any of his post-service jobs. On VA respiratory examination in March 2004, the veteran's claims file was reviewed. The examiner noted that the veteran had been given a medical workup in 1999 by one of the legal firms doing workups for asbestosis in a class action suit. A diagnosis of pulmonary fibrosis was made from the medical workup. The examiner noted that when the veteran was initially seen by VA in 1999, review of the charts and X-rays did not reveal any evidence of asbestosis. He noted that while the report of X-rays obtained by the legal firm did mention asbestosis with fibrosis, the VA radiologist did not read it as such. The examiner noted that the veteran presented for reevaluation, with no change in symptoms. He reported a productive cough and no other problems. He was on no medications. On physical examination, the veteran's lungs were clear to auscultation and percussion. There was no accessory muscle use and no evidence of dyspnea on exertion or restrictive disease. The examiner noted that it was basically a normal examination. X-rays and pulmonary studies were ordered. March 2004 chest X-rays showed no evidence of asbestosis. Pulmonary studies were read as normal spirometry. The examiner stated that we do not have any evidence of asbestosis or any associated lung problems by X- rays or by pulmonary studies. III. Analysis Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when 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). To establish entitlement to service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. In addition, the Court has held that there can be no valid claim [of service connection]without proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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 further notes that lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. It is not in dispute that the veteran's duties in service may have exposed him to asbestos. However, to establish service connection for a residual of such exposure, as a threshold matter there must be competent (medical) of current disability related to such exposure. In that regard, it is noteworthy that service medical records (encompassing both the period of active duty and time served with the reserves) reveal no evidence of any lung problem. Nor was there any medical evidence of lung disability until many years after service. While a private physician and osteopath have provided diagnoses of interstitial fibrosis at the lung bases typical of previous asbestos exposure and asbestos lung disease, VA examinations have resulted in contrary conclusions. On VA examination in October 1999, the examiner noted symptoms of restrictive disease on spirometry, but concluded after examination and review of X-rays that there was no evidence of asbestosis. November 1999 VA X-rays revealed no significant abnormality and no stigmata characteristic of asbestos exposure. Most recently, on VA examination in March 2004, (specifically pursuant to the Board's remand to resolve the conflicting medical findings), the examiner found no evidence of asbestosis or any associated lung problems by X-ray or by pulmonary studies. Moreover, the examiner disagreed with the private interpretation of the 1999 medical workup. The VA examination in 2004 which found no current lung disability is the most probative evidence in this matter. The examiner expressly reviewed the claims file, discussed the diagnostic studies which supported the conclusions reached, and concluded that the evidence did not show asbestosis or any associated lung problems. In the absence of current medical evidence that the veteran has lung disability due to exposure to asbestos in service, service connection for such disability is not warranted. The veteran's own opinion that he has lung disability (including asbestosis) due to asbestos exposure in service is not competent evidence. As a layperson, he lacks competence to offer competent opinion in the matter of medical diagnosis or etiology. See Espiritu, supra. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. Brammer, supra. In the absence of proof of present disability there can be no valid claim [of service connection]. Degmetich v. Brown, 104 F.3d 1328 (1997). Here, the preponderance of the evidence is against a finding that the veteran has current chronic lung disability, including as due to asbestos exposure. Consequently, the claim must be denied. ORDER Service connection for lung disability, including as due to exposure to asbestos is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs