Citation Nr: 0120057 Decision Date: 08/03/01 Archive Date: 08/10/01 DOCKET NO. 01-04 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an asbestos-related lung disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from March 1944 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That rating decision denied service connection for the veteran's asbestosis. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The service medical records reveal no evidence of exposure to asbestos, or the presence of any asbestos related lung disorder. 3. Private medical records from July 1991 to the present reveal diagnoses of asbestosis; these diagnoses are supported by radiology reports and pulmonary function test (PFT) results. 4. Competent evidence of record reveals that the veteran served in the Navy from March 1944 to January 1946; his assigned duties were as a Seaman, and the probability of exposure to asbestos in this occupation was minimal. 5. Competent evidence of record reveals that the veteran had an extensive period of asbestos exposure for over 40 years subsequent to active service. 6. The competent medical evidence of record relates the veteran's current asbestosis to his extensive history of post-service asbestos exposure. 7. The veteran's accounts of his asbestos exposure during service and subsequent to service lack credibility in light of the other evidence of record. 8. The veteran's claimed asbestosis is not the result of disease or injury during his active military service. CONCLUSION OF LAW Asbestosis was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110, (West 1991); 38 C.F.R. § 3.303 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Requirements for Service Connection Service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (2000). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2000). Establishing direct service connection for a disability, which has not been clearly shown in service, requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1995); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, the determinative issues presented by the claim are (1) whether the veteran had asbestos exposure during service; (2) whether he has a current asbestos related pulmonary disability; and, if so, (3) whether the current disability is etiologically related to the alleged asbestos exposure during service. 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 there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service 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) (2000). "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB circular has been subsumed verbatim as § 7.21 of VA manual ADMIN21 [hereinafter "M21-1"]. More recently the Court has held that "neither MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. II. Medical Evidence of Current Asbestosis Disability The veteran claims that he was exposed to asbestosis during active Naval service from March 1944 to January 1946. As an initial matter he must establish with competent medical evidence that he currently has an asbestos related disorder. The veteran has submitted adequate evidence to establish a current disability. Various private medical records dating from 1991 to the present reveal that the veteran does have a medical diagnosis of asbestosis. Radiology reports from chest x-rays and CT examinations reveal the presence of lung fibrosis and pleural thickening which are symptoms of asbestosis. Multiple private pulmonary function test (PFT) reports are of record. These show that the veteran has a restrictive respiratory defect which is consistent with asbestosis which is a restrictive lung disease. Finally, there are physicians' reports which evaluate the various test results and ultimately provide a diagnosis of asbestosis. The competent medical evidence of record clearly shows that the veteran currently has asbestosis. This fact is not in dispute. Rather, the veteran's claim fails because the competent evidence of record does not establish asbestos exposure during service, nor does the competent evidence of record establish any nexus, or link, between the veteran's current asbestosis and his Naval service. The Board will discusses these elements below. III. Asbestos Exposure and Nexus M21-1 provides some guidance with respect to occupational asbestos exposure. It states that: (1) Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and 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, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. (2) 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 chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were 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 disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21, b. A. Naval Service The veteran claims that he was exposed to asbestos during active service. He states he served in the Navy during World War II aboard USS Riverside (APA 102). He indicates that his shipboard duties involved work in the boiler room and other engineering spaces and that this is where he was exposed to asbestos. He asserts that during service his job included maintaining the fresh water evaporator which involved cleaning it. To clean this piece of equipment he claims he had to remove asbestos insulation, clean the pipes and equipment and then re-insulate the pipes. The veteran's Naval service separation papers are of record. They reveal that he served from March 1944 to January 1946. These records confirm that the veteran served as a "Seaman." Specifically, the veteran held the ratings of Apprentice Seaman, Seaman Second Class, and Seaman First Class during service. The veteran's service medical records have also been obtained. These records appear to be complete. While not numerous, these records contain entrance and separation examination reports along with some medical and dental treatment records which span the veteran's period of service. There is no indication in any of the service medical records that the veteran was exposed to asbestos during service or that he was diagnosed with any asbestos related disorder during service. Specifically, x-ray examinations of the veteran's chest were conducted in March 1944, April 1944, and January 1946. In each instance, the results were negative for any abnormality. The RO requested information related to asbestos exposure from the service department. Copies of some of the veteran's service personnel records were provided and these confirm that the veteran did serve aboard the USS Riverside. The reply also stated that "we have no way of determining what extent [the veteran] was exposed to asbestos during his Naval service. We know General Specifications of Ships during this period, required heated surfaces to be covered with an insulating material and it is highly probable that asbestos products were used to achieve this end. Items that required insulation included piping, flanges, valves, fittings, machinery, boilers, evaporators, and heaters. [The veteran's] occupation was as a Seaman (SN). The probability of exposure to asbestos is minimal. However, a positive statement that the veteran was or was not exposed cannot be made." The Board acknowledges that asbestos was used widely as an insulating material aboard Navy ships during World War II, the period of the veteran's service. However, this material was concentrated as insulating materials in engineering spaces as noted in the service department reply above. The veteran asserts that his duties involved work in these areas, and that as such he was exposed to asbestos. The Board finds these assertions on the veteran's part to lack credibility. The veteran's service personnel records clearly reveal that the veteran's rating was as a Seaman, not an engineering rating. The service department confirms that the veteran's duties as a Seaman did not involve engineering work and that the "probability of exposure to asbestos is minimal." The veteran's duty as a Seaman involved in deck duties, as opposed to engineering duties, is also confirmed by a statement submitted (on the veteran's behalf in a prior claim) by a service comrade in September 1958. In this statement the service comrade identifies himself as a former Navy Coxswain, another deck rating, who served in the same division with the veteran aboard the USS Riverside. This further supports that the veteran's shipboard duties did not involve work in the engineering spaces as he claims. The veteran's statements about his shipboard asbestos exposure were made on a June 2000 statement, which was a reply to the RO's request for specific asbestos exposure information from the veteran made in May 2000. The RO's request also asked for other pieces of related information such as post-service employment and asbestos exposure and the veteran's smoking history. On his June 2000 exposure statement the veteran also indicated the "only time I can remember smoking was when I was in the Navy and that was because they came in our rations. I have not smoked since getting discharged from the Navy [in January 1946]." The Board notes that this statement is contradicted by a July 1991 medical treatment record from Dr. Holmes. The treatment note states that the veteran "smoked 10 years. Stopped 20 years ago." According to this record the veteran smoked as late as 1971, not 1946 as he indicated in his statement. As noted above, "neither MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. The veteran's assertions of asbestos exposure in engineering duties during his Naval service are completely inconsistent with the objective evidence of record. Service records clearly reveal that the veteran served as a Seaman who would be involved in deck duties, not engineering duties. This is confirmed by the service department and by a service comrade statement dated in 1958. Moreover, the veteran's inconsistencies with respect to his duties and his tobacco use history lead the Board to find that his assertions of in- service exposure during engineering duties lack credibility. As such, we find as fact that the evidence of record shows that the veteran served aboard a ship during Word War II and that his duties involved deck duties. He did not engage in engineering duties and the probability of exposure to asbestos during service was minimal. At this point the Board takes a moment to indicate that it has considered the applicability of 38 U.S.C.A. § 1154 to the veteran's claim. However, the Board must determine that 38 U.S.C.A. § 1154 (b) is not applicable to the veteran's claim. The veteran did serve in the Navy aboard a ship during World War II. However, the veteran's assertions of asbestos exposure are not related to any combat service, and the evidence of record does not show that the veteran engaged in combat during his period of active Naval service. B. Post- Service Employment In the March 2001 rating decision the RO found that the veteran's current asbestosis was the result of asbestos exposure during his post-service employment. The veteran has vehemently disagreed with this finding. In February 2000 the veteran filed his claim for service connection for asbestosis. Along with his claim he submitted copies of private medical records. One record was a cover letter from the Choctaw County Family Medical Clinic. The letter begins by stating "thank you for allowing us to perform your 1991 James River Painters, Carpenters, Insulators and Asbestos Physicals." Also included in the records submitted by the veteran at this time was an undated chest x-ray report revealing results consistent with asbestos related pulmonary system changes along with July 1991 CT examination report which confirmed that the veteran had asbestos related pulmonary changes. The veteran submitted release forms, and the RO obtained copies of additional private medical records. A July 1991 treatment record from Dr. Holmes states that the veteran "smoked 10 years. Stopped 20 years ago. Worked with pipe fitting and insulation at James Rivers 1958 - present." This record is hand written and is clearly a contemporaneous transcription of information provided by the veteran to the physician at an office visit. The RO also obtained a copy of a July 1991 consultation letter from Dr. Holmes to Dr. Aldridge. The letter begins "as you know [the veteran] is a 68 year old white male who has worked at James Rivers since 1958. He has worked primarily with pipe fitting and also with some insulation. Both of these are reportedly known to have asbestos." The letter then reported the veteran's test results and the diagnosis of pulmonary asbestosis. Dr. Holmes also stated that "I recommend that he not work around asbestos anymore. There is enough evidence in the literature to suggest that continued work around asbestos is more likely to increase the rate of progression of pulmonary asbestosis." An undated chest x-ray report from Dr. Lorino also states that the veteran "has pulmonary asbestosis as indicated by his history of exposure to asbestos. " An October 2000 letter from Dr. Champion merely confirms the diagnosis of asbestos based testing which included CT examination and PFTs. This letter does not indicate any etiology for the veteran's asbestosis. Asbestos exposure information and post-service employment information was requested from the veteran by the RO in May 2000. In June 2000 he replied that "since my discharge from the U.S. Navy in 1946 I was a pipe fitter and worked maintenance. I did not handle any insulating material in these jobs. None of these jobs involved asbestos insulation that I knew of." In July 2000 the veteran submitted a written statement of his post-service employment history. He stated that he worked at the James Rivers company from 1958 to 1992. He also submitted a list of employment at various locations from 1946 to 1958. Some of the highlights of this list include: work at a shipyard in 1948; work as a pipe fitter in a power plant in 1950 and 1951; work as a pipe fitter in a steel mill in 1951; work as a pipe fitter and pipe insulator in 1951 and 1952; and pipe fitting and welding at various industrial locations from 1952 to 1958. In his March 2000 Notice of Disagreement (NOD), and his May 2001 Substantive Appeal the veteran has vehemently disagreed with the assertion that he was exposed to asbestos during his post-service employment. In pertinent parts of his NOD the veteran's stated: . . . the rating decision it shows my job history and implies that I worked with pipes that contained insulation or asbestos. It states that I worked for several companies as a pipe fitter. I worked at the same place for all those years, the company changed names several times but it was still the same work place and same job. I never worked with any pipe insulation or asbestos. I was a pipe fitter and not a pipe insulator. These are two separate jobs. The pipe fitter puts the pipes in and then it goes to painters and then pipe insulators. I have attached copies of my Union Job descriptions and duties. I have also attached copies of my Union Cards. Please note that under Union rules I could not do a job that I was not authorized to do. If insulation was on a pipe that needed working on, we had to call the insulators and they would remove the insulation before we repaired the pipes. I never handled any insulation because that was not my job. . . . My Union did not allow me to work with insulation because I was qualified as a pipe fitter and not as a pipe insulator. . The only time that I was exposed to asbestos was when I was in the Navy and worked in the boiler room, and with the fresh water supply system for the ship. . . . The statement by Doctor Edward Holmes in July of 1991 that I had worked for James River since 1958 as a pipe fitter and also with some insulation is not true. Dr. Holmes also stated in this letter that "both of these are reportedly known to have asbestos." Dr. Holmes was not employed at James River and has no first hand knowledge of what my job involved and what I was exposed to. He is not qualified to make this statement. As earlier stated, I was a pipe fitter and not a pipe insulator! There is a big difference in these two jobs. The main difference is that pipe fitters DO NOT do any insulation of pipes, The pipe insulators install all pipe insulation after the pipe fitters have installed all of the pipes. In his May 2001 Substantive Appeal the veteran also stated that the "Statement of the Case, points out that I was the one who authorized the VA to obtain records from Dr. Holmes to support my claim. This is true. I authorized the VARO to obtain medical records from Dr. Holmes to support a diagnosis of asbestosis. I did not authorize the VA to accept a statement from Doctor Holmes concerning what my job duties were and what I was exposed to." Based on this statement, the veteran would have the Board read the medical records he has submitted on his behalf selectively, ignoring some sentences, but giving full credence to others. Moreover, the veteran has quoted extensively from M21-1 in his NOD and his substantive appeal. The Board notes that the "clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease." Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 (c). If the Board were to ignore the sections of Dr. Holmes' consultation report which relate the veteran's asbestos exposure history, then the entire diagnosis of asbestosis would be thrown into question. Again the Board does not believe the veteran in these assertions. His assertions completely lack credibility. The evidence shows that the veteran had a pulmonary consultation with Dr. Holmes in July 1991. This is approximately 9 years prior to the date he filed a claim with the RO for service connection for asbestosis. There are two records from this consultation. The first record is the physician's handwritten notes which appear to be contemporaneous with his examination of the veteran, and which must have included gathering a medical history and asbestos exposure history. In order for any physician to diagnose asbestosis, a history of exposure is necessary. It is clear from the medical records that the veteran provided Dr. Holmes with his exposure history which was related as the decades of employment at James River since 1958. The fact that the veteran had asbestos exposure during his employment at James River is also confirmed by the cover letter from the Choctaw County Family Medical Clinic which states "thank you for allowing us to perform your 1991 James River Painters, Carpenters, Insulators and Asbestos Physicals." This letter clearly indicates that there was asbestos exposure at James River and that periodic examinations of the employees were conducted to monitor their health in light of this exposure. The veteran's assertions imply that the following scenario took place: That the veteran had a pulmonary consultation with Dr. Holmes in 1991 at which he informed the physician that his only asbestos exposure was over 4 decades ago during 2 years of Naval service in World War II. Dr. Holmes then chose to completely ignore the veteran's account of asbestos exposure and fabricate the fact that his employment as a pipe fitter for over 4 decades was the source of asbestos exposure. Then Dr. Holmes, a board certified pulmonary specialist, diagnosed the veteran with pulmonary asbestosis based on a falsified asbestos exposure history. This is the scenario that the veteran indicates took place; the Board finds it to be incredible. The evidence of record shows that the veteran worked as a pipe fitter for James River from 1958 to 1992. From 1946 to 1958 the evidence shows that the veteran worked in variety of jobs including a shipyard and as a pipe fitter at various industrial locations. The fact that there was exposure to asbestos during the veteran's employment at James River is confirmed by Dr. Holmes' consultation report and the letter from the Choctaw County Family Medical Clinic. Pipe fitting is an occupation in which employees have a high incidence of exposure to asbestos. Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21. Even accepting the veteran's assertion that he fitted and welded pipes, but did not insulate them, this would not mean that he was not exposed to asbestos. The Board finds it difficult to believe that the veteran as a pipe fitter would not be in the vicinity of the pipe insulators when they were insulating, or removing insulation from, pipes. The Board finds the veteran's assertions with respect to the lack of asbestos exposure during his post-service employment and his assertions as to the inaccuracy of Dr. Holmes reporting of the veteran's source asbestos exposure to lack credibility. The evidence of record shows that, subsequent to service from 1946 to 1992, the veteran was employed in occupations with a high incidence of exposure to asbestos. Based on the exposure reports from Dr. Holmes and the Choctaw County Family Medical Clinic, the Board finds as fact that the veteran has an extensive history of exposure to asbestos subsequent to his military service. C. Nexus and Analysis The medical evidence of record clearly reveals that the veteran has a diagnosis of pulmonary asbestosis. However, there is no competent medical evidence which links the veteran's current disability to his naval service over half a century ago. Rather, the competent medical evidence of record, Dr. Holmes' pulmonary consultation, clearly links the veteran's asbestosis to a 40 year history of post-service asbestos exposure during employment as a pipe fitter. The evidence of record reveals that the veteran has asbestosis, that the veteran's probability of exposure to asbestos during his two years of Naval service was minimal based upon his documented duties and rating, and that the veteran has an extensive history of asbestos exposure during employment subsequent to service from 1946 to 1992. The competent medical evidence of record links the veteran's asbestosis to his post-service asbestos exposure. The Board finds the veteran's contrary accounts of asbestos exposure during service, but not after service, to be completely unbelievable and to lack credibility. The overwhelming preponderance of the evidence is against the veteran's claim. IV. VCAA Recently there was a significant change in the controlling laws. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) codified at 38 U.S.C.A. § 5103A (West Supp. 2001). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099- 2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Upon careful review of the claims folder the Board finds that all required notice and development action specified in this new statute have been complied with during the pendency of the current appeal. Specifically, the Board finds that the statement of the case and supplemental statement of the case, provided to both the veteran and his representative, specifically satisfy the requirement at 38 U.S.C.A. § 5103A (West Supp. 2001) of the new statute in that they clearly notify the veteran and his representative of the evidence necessary to substantiate his claim. Additionally, the Board finds that the duties to assist provided under the new statute at § 5103A have also been fulfilled in that all evidence and records identified by the veteran as plausibly relevant to his pending claim have been collected for review and that VA has notified the veteran of the records that it could not obtain. Specifically, the veteran has taken issue with the ability of the RO to obtain records from the James River corporation, the veteran's post-service employer. In July 2000, the RO wrote to James River and requested the veteran's employment records along with any medical records related to the veteran's claimed asbestosis and whether, or not, the veteran was involved in litigation related to asbestos exposure during his employment. James River corporation did not respond to the RO's request. The Board does not find this surprising since the evidence of record indicates that the veteran had extensive asbestos exposure during his employment at James River and that he developed asbestosis because of it. In January 2001, the RO contacted the veteran and his representative by letter and informed them that James River had not provided the requested information. This letter requested the veteran to contact his employer for the information and also notified him that, if the information was not received in 30 days, the claim would be adjudicated on the evidence of record. The veteran asserts that 38 U.S.C.A. §38 U.S.C.A. § 5103A (b) (West Supp. 2001) shifts the burden to VA to retrieve these private records. The Board disagrees. Specifically, the RO contacted the veteran, and his representative, in the January 2001 letter and informed him that James River had not responded to the request for information. The RO's January 2001 letter meets all of the requirements stated in 38 U.S.C.A. § 5103A (b)(2). VA has made reasonable efforts to obtain the veteran's employment records and informed the veteran that the attempts were unsuccessful. The Board also notes that the records requested were related to the veteran asbestos exposure during his post service employment and any litigation resulting therefrom. It is not surprising that the veteran's employer would not want to provide these records. Moreover, we note that the veteran has never attempted to provide VA with these records himself and has never indicated whether he was involved in litigation based on his post-service asbestos exposure. 38 U.S.C.A. § 5103A (d) provides for VA examination of claimants in cases involving service connection. However, the conditions enumerated in 38 U.S.C.A. § 5103A (d)(2) have not been met and a VA examination of the veteran is not required. Specifically, there is competent medical evidence of record, which shows that the veteran has asbestosis, but the evidence relates it to the veteran's post-service employment. While the veteran's lay assertions are that his Naval service caused his asbestosis, the Board has determined that his assertions lack credibility. As such a VA examination is not required. ORDER Service connection for asbestosis is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals