Citation Nr: 0739814	
Decision Date: 12/18/07    Archive Date: 12/26/07

DOCKET NO.  06-23 184	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an increased rating for basal cell and 
squamous cell carcinomas and actinic keratosis of the face, 
ears, neck, shoulders and hand, evaluated as 30 percent 
disabling between September 7, 1990 and August 29, 2002, as 
50 percent disabling between August 30, 2002 and December 15, 
2005, and as 60 percent disabling as of December 16, 2005.  

2.  Entitlement to service connection for asbestosis.

3.  Entitlement to service connection for hypertension.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Vella Camilleri, Associate Counsel


INTRODUCTION

The veteran served on active duty in the Marine Corps 
Reserves from October 1947 to October 1949, in the Air Force 
from December 1949 to October 1953, and in the Coast Guard 
from November 1953 to November 1957.  He also had an 
unverified period of active service in the Naval Reserves.  

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from rating decisions issued by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Providence, 
Rhode Island, in September 2004 and August 2005.  The 
September 2004 rating decision continued the 30 percent 
evaluation assigned for service-connected basal cell and 
squamous cell carcinomas and actinic keratosis of the face, 
ears, neck, shoulders and hand.  The August 2005 rating 
decision denied entitlement to service connection for 
asbestosis and hypertension.  

In a January 2007 supplemental statement of the case (SSOC), 
the RO assigned a 50 percent evaluation for basal cell and 
squamous cell carcinomas and actinic keratosis of the face, 
ears, neck, shoulders and hand, between August 30, 2002 and 
December 15, 2005, and a 60 percent evaluation as of December 
16, 2005.  Despite the increased ratings granted by the RO, 
the veteran's appeal remains before the Board.  Cf. AB v. 
Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a 
notice of disagreement (NOD) as to an RO decision assigning a 
particular rating, a subsequent RO decision assigning a 
higher rating, but less than the maximum available benefit, 
does not abrogate the pending appeal).  


The veteran was afforded a personal hearing before the 
undersigned Veterans Law Judge in May 2007.  A transcript of 
the hearing is of record.  

In a July 2006 VA Form 21-4138, the veteran indicated that he 
had been diagnosed with chronic obstructive pulmonary disease 
(COPD) in addition to asbestosis and appears to contend that 
COPD is the result of exposure to asbestos.  He also 
contended that service connection for hypertension was 
warranted on a secondary basis, as it is a condition linked 
to weakened lungs, which has caused a strain on his heart.  A 
review of the claims folder does not reveal that the RO has 
addressed these issues.  Therefore, they are REFERRED to the 
RO for appropriate action.  

The issue of entitlement to service connection for 
hypertension is addressed in the REMAND portion of the 
decision below and is REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  On February 6, 2007, prior to the promulgation of a 
decision in the appeal, the Board received notification from 
the veteran that he wished to withdraw his appeal involving 
entitlement to an increased rating for basal cell and 
squamous cell carcinomas and actinic keratosis of the face, 
ears, neck, shoulders and hand.  

2.  The veteran does not have a current diagnosis of 
asbestosis.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal 
regarding the issue of entitlement to an increased rating for 
basal cell and squamous cell carcinomas and actinic keratosis 
of the face, ears, neck, shoulders and hand have been met.  
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. 
§§ 20.202, 20.204 (2007).

2.  The criteria for service connection for asbestosis have 
not been met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 
38 C.F.R. § 3.303 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	Increased rating claim

Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss 
any appeal which fails to allege specific error of fact or 
law in the determination being appealed.  A Substantive 
Appeal may be withdrawn in writing at any time before the 
Board promulgates a decision.  38 C.F.R. § 20.202 (2007).  
Withdrawal may be made by the appellant or by his or her 
authorized representative.  38 C.F.R. § 20.204 (2007).  

On February 6, 2007, prior to the promulgation of a decision 
in the appeal, the Board received notification from the 
appellant that he wished to withdraw his appeal involving 
entitlement to an increased rating for basal cell and 
squamous cell carcinomas and actinic keratosis of the face, 
ears, neck, shoulders and hand.  See appeal status election 
form.  The appellant has withdrawn his appeal concerning this 
claim.  As such, there remain no allegations of errors of 
fact or law for appellate consideration.  Accordingly, the 
Board does not have jurisdiction to review the appeal and it 
is dismissed.

II.	Service connection claim

To establish service connection for a claimed disability, the 
evidence must demonstrate that a disease or injury resulting 
in current disability was incurred during active service or, 
if pre-existing, was aggravated therein.  38 U.S.C.A. 
§§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007).  

The veteran contends that he has asbestosis as a result of 
in-service asbestos exposure while serving in the Coast 
Guard.  He reports serving aboard two lightships that were 
built in the early 1900s, Relief Lightship (WAL-515) and 
Boston Lightship (WAL-510).  The veteran indicates that as 
both ships were so small, he performed multiple duties, to 
include boiler tender, machinist mate and electrician in 
addition to his military occupation of engineman.  In 
performing his duties, he had to cut through asbestos 
coverings to make repairs and had to replace valve packings 
and gaskets that were made of asbestos.  The veteran also 
asserts that there was asbestos dust throughout the ships as 
well as below deck.  He indicates that he has had shortness 
of breath and difficulty walking up inclines, which has 
worsened over the years and which he attributes to asbestos 
exposure.  He also reports being diagnosed with this 
condition for many years.  The veteran denies being exposed 
to asbestos outside of service and contends that he has not 
smoked in over 40 years.  See VA Form 21-4137 received 
February 2005; February 2005 and July 2005 VA Forms 21-4138.  

The veteran's service medical records are devoid of reference 
to complaint of, or treatment for, a lung condition.  His 
service personnel records show that he served on board the 
Lightship WAL-515 in Portsmouth, Virginia with a reporting 
date of September 7, 1954.  He was transferred from WAL-515 
to the Boston Group (WAL-510) in August 1955, with a 
reporting date of September 6, 1955.  See CG-3307 records.  
There is no indication in the personnel records as to whether 
the veteran was exposed to asbestos in any of these duty 
assignments.  

A November 2004 letter from Dr. L. Chin reported that the 
veteran had "evidence of asbestosis exposure in past based 
on chest CT scan.  He has apical pleural thickening and 
scarring.  He also has a linear shaped density along the 
major fissure consistent with chronic fissural thickening."  

Records from Caritas St. Elizabeth's Medical Center dated 
prior to November 2004 indicate that posterior-anterior (PA) 
and lateral chest x-rays taken in December 2003 showed that 
the veteran's lungs were well expanded and appeared clear of 
acute or focal findings.  An impression of no acute 
cardiopulmonary disease was made.  In March 2004, the veteran 
was found to have a history of pleural plaque with a plan to 
repeat the chest CT in six months.  See progress notes/adult 
medicine from St. Elizabeth's (Brighton Marine).  In November 
2004, the veteran's prior medical history (PMH) included a 
notation of COPD/asbestosis and the assessment made was 
COPD/asbestosis, with a note to check pulmonary function 
tests (PFTs).  See progress notes/adult medicine from St. 
Elizabeth's (Brighton Marine).  PFTs showed very mild 
obstruction.  See November 2004 record from St. Elizabeth's 
Medical Center of Boston.  

The veteran underwent a VA compensation and pension (C&P) 
miscellaneous respiratory diseases examination in August 
2005, at which time he reported a history of exposure to 
radiation during the collection of dust samples after nuclear 
testing in the early 1950s and of asbestos exposure, which 
occurred when he was working in the boiler room of a Coast 
Guard lightship (asbestos was covering pipes).  The veteran 
reported shortness of breath on moderate exertion.  He 
indicated that he quit smoking 40 years prior and indicated 
that he develops acute bronchitis once or twice per year.  He 
denied a history of asthma, COPD, tuberculosis (TB) or 
cancer.  Physical examination revealed that the veteran's 
lungs were clear.  

Chest x-rays performed on August 4, 2005 showed no signs of 
interstitial infiltrate characteristic of asbestosis.  In 
addition, there was no pleural or diaphragmatic calcification 
or pericardial calcification suggestive of asbestos exposure.  
PFTs performed on the same date as the x-rays showed a 
reduction in forced vital capacity (FVC) to 54 percent 
predicted, which markedly increased after exposure to 
bronchodilator.  The forced expiratory volume in one second 
(FEV1) was within normal limits and total lung capacity was 
normal.  There was air trapping with an increased residual 
volume and the lung diffusion capacity testing (DLCO) was 
decreased but was normal when corrected for the low vital 
capacity.  The impression made was as follows:  the current 
chest x-ray and PFTs are not consistent with asbestosis.  The 
examiner noted the record that indicated a CT scan showed 
apical pleural thickening and thickening of the pleura in the 
major fissure, but reported that this is not necessarily 
characteristic of asbestosis.  The examiner further reported 
that she found no evidence to suggest asbestosis in the 
veteran.  

The medical evidence of record does not support the claim for 
entitlement to service connection for asbestosis.  The Board 
acknowledges that private treatment records contain a 
diagnosis of asbestosis in November 2004 and that Dr. Chin 
reported evidence of asbestos exposure based on chest CT scan 
due to apical pleural thickening and scarring and a linear 
shaped density along the major fissure consistent with 
chronic fissural thickening.  However, the August 2005 VA 
examiner reported that current chest x-ray and PFTs are not 
consistent with asbestosis and that she found no evidence to 
suggest asbestosis in the veteran.  The examiner further 
reported that apical pleural thickening and thickening of the 
pleura in the major fissure are not necessarily 
characteristic of asbestosis.  This opinion is found to be 
more persuasive than that of Dr. Chin, because the VA 
examiner reviewed the record, including the opinion of Dr. 
Chin, and explained the rationale for her opinion.  See 
Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for 
assessing the probative value of a medical opinion are the 
physician's access to the claims file and the thoroughness 
and detail of the opinion.)  Her opinion was also based upon 
the results of diagnostic testing, including both chest x-ray 
and PFTs.  

In the absence of a current disability, service connection 
for asbestosis is not warranted.  See 38 C.F.R. § 3.303 
(2007).  As the preponderance of the evidence is against the 
claim, the benefit of the doubt rule is inapplicable.  
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).  

III.	Duties to notify and assist

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In 
accordance with 38 C.F.R. § 3.159(b)(1), proper notice must 
inform the claimant of any information and evidence not of 
record (1) that is necessary to substantiate the claim; (2) 
that VA will seek to provide; and (3) that the claimant is 
expected to provide.  Proper notice must also ask the 
claimant to provide any evidence in his or her possession 
that pertains to the claim.  Notice should be provided to a 
claimant before the initial unfavorable decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Prior to the August 2005 rating decision that denied the 
claim for entitlement to service connection for asbestosis, 
the veteran was advised of the evidence needed to 
substantiate his claim for service connection and of his and 
VA's respective duties in obtaining evidence.  He was also 
asked to send any evidence in his possession that pertains to 
his claim.  See February 2005 letter.  Accordingly, the duty 
to notify has been fulfilled concerning this claim.  The 
veteran was also provided notice of the appropriate 
disability rating and effective date of any grant of service 
connection, as required by Dingess v. Nicholson, 19 Vet. App. 
473 (2006).  See March 2006 letter.  

VA also has a duty to assist claimants in obtaining evidence 
needed to substantiate a claim.  38 U.S.C.A. § 5103A (West 
2002); 38 C.F.R. § 3.159 (2007).  This duty has also been met 
as the veteran's service medical, private and VA treatment 
records have been obtained and he was afforded an appropriate 
VA examination in connection with his claim.  The record does 
not suggest the existence of additional, pertinent evidence 
that has not been obtained.  

For the reasons set forth above, the Board finds that no 
further notification or assistance is necessary, and deciding 
the appeal is not prejudicial to the veteran.


ORDER

The issue of entitlement to an increased rating for basal 
cell and squamous cell carcinomas and actinic keratosis of 
the face, ears, neck, shoulders and hand is dismissed.

Service connection for asbestosis is denied.  




REMAND

Unfortunately, a remand is required in regard to the 
remaining claim.  Although the Board sincerely regrets the 
additional delay, it is necessary to ensure that there is a 
complete record upon which to decide the veteran's claim so 
that he is afforded every possible consideration.  Such 
development would ensure that his due process rights, 
including those associated with 38 U.S.C.A. §§ 5102, 5103, 
5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326 (2007), are met.  

The veteran contends that he has had a problem with high 
blood pressure since active duty, to include a 14 year period 
of service in the Naval Reserves.  He reports having to plead 
with the medical professional conducting his annual physicals 
to find him fit for duty.  The veteran indicates that he has 
been on, and continues to take, medication for this problem.  
The veteran also asserts that he was treated for hypertension 
within the first, presumptive year.  See VA Form 21-4137 
received February 2005; February 2005 and July 2005 VA Forms 
21-4138.  

The Board notes that annual physicals dated April 1984, June 
1985, May 1986 and July 1988, and presumably associated with 
the veteran's reserve duty, were submitted by the veteran's 
representative in December 2000.  The veteran reported high 
or low blood pressure in June 1985 and May 1986; the 
examining medical professional also noted increased/high 
blood pressure.  See reports of medical history.  High blood 
pressure was also noted on the May 1986 report of medical 
examination.  Despite the veteran's contention that he served 
in the Naval Reserves for 14 years, the RO has not requested 
verification of this period of service.  Nor has the RO 
requested medical records associated with his reserve duty.  
On remand, the RO should accomplish both.  

Pursuant to 38 C.F.R. § 3.159(c)(4) (2007), a medical 
examination will be provided or a medical opinion obtained if 
review of the evidence of record reveals that an examination 
or opinion is necessary for a decision to be rendered.  The 
Board finds that based on the evidence as a whole, a medical 
examination is necessary in relation to the veteran's claim 
for the purpose of ascertaining whether the veteran currently 
has hypertension and for an opinion on whether any current 
diagnosis is related to service.  This is particularly 
important given the notations of high blood pressure in the 
1980s during the veteran's presumed period of reserve duty 
and an August 2004 clinical indication of hypertension, which 
was noted during testing due to the veteran's coronary artery 
disease (CAD).  See nuclear medicine report from Carnitas St. 
Elizabeth Medical Center.  Any recent VA treatment records 
should also be obtained.

The veteran is hereby notified that it is his responsibility 
to report for any scheduled examination and to cooperate in 
the development of the case, and that the consequences of 
failing to report for a VA examination without good cause may 
include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 
(2007).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the veteran's VA treatment 
records, dated since December 2006.  

2.  Verify the veteran's period of duty 
in the Naval Reserves.  If such service 
cannot be verified, indicate whether the 
pertinent records do not exist and 
whether further efforts to obtain the 
records would be futile.

3.  After the foregoing has been 
completed, schedule the veteran for a VA 
examination to determine if he has 
hypertension.  All indicated tests and 
studies should be performed and all 
clinical findings reported in detail.  
The claims folder must be made available 
to the medical examiner and review of the 
folder should be noted.  

If a diagnosis of hypertension is made 
based on the examination, the examiner 
should express an opinion as to whether 
it is at least as likely as not (i.e., 
probability of 50 percent or greater) 
that the veteran's hypertension is 
related to service, to include the period 
of service in the Naval Reserves.  

The examiner must provide a comprehensive 
report including a complete rationale for 
all opinions and conclusions reached.

4.  Thereafter, readjudicate the claim.  
If the benefit sought on appeal is not 
granted, issue an updated supplemental 
statement of the case and give the 
veteran and his representative an 
appropriate amount of time to respond.

The appellant has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by 
the U.S. Court of Appeals for Veterans Claims for additional 
development or other appropriate action must be handled in an 
expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 
Supp. 2007).


______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs