Citation Nr: 0203684 Decision Date: 04/23/02 Archive Date: 05/02/02 DOCKET NO. 00-05 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for pulmonary tuberculosis (PTB). 2. Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. P. Tierney, Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1939 to January 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 1999 rating decision of the Reno, Nevada Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the benefits sought. In the claim which gave rise to this appeal, the veteran specifically indicated he was seeking service connection for the disabilities of asbestosis and PTB. Those were the matters addressed by the RO, and the matters raised in the veteran's notice of disagreement. The record appears to raise further issues of entitlement to service connection for various other disabilities - lung pathology other than that attributed to asbestosis or PTB. The veteran has not claimed service for such disabilities, and the RO has not adjudicated such claims. Consequently, claims of service connection for lung disabilities other than those specifically claimed by the veteran are not in the Board's jurisdiction. The matter of service connection for lung disability other than asbestosis or PTB is referred to the RO for any further action/clarification indicated. FINDINGS OF FACT 1. PTB was not manifested in service or within 3 years following the veteran's separation from service, and it is not shown that the veteran has PTB or disability residual from PTB which is related to service. 2. It is not shown that the veteran has asbestosis. CONCLUSIONS OF LAW 1. Service connection for pulmonary tuberculosis is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2001). 2. Service connection for asbestosis is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters - VCAA There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). VA has now issued final regulations implementing the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The VCAA applies to this claim although it was filed before the date of enactment, November 9, 2000, because it was not final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Board finds that VA's duties under the VCAA have been met. In a supplemental statement of the case (SSOC), the RO addressed the claims on the merits, and did not base its determination, as previously, on the concept of a well- grounded claim. Discussions in the rating decisions, the Statement of the Case (SOC), and SSOCs, in particular the SSOC dated in September 2001, informed the veteran what was needed to substantiate the claims and what evidence was of record, and complied with VA's notification requirements. VA also has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Here, the veteran has not indicated that there is any evidence outstanding relevant to the claims at issue. He has been provided a VA medical examination in connection with his claims. Manual provisions of M21-1 have been adhered to as necessary in adjudication of claims based on asbestos exposure. Further medical opinion is not necessary to consider the issues addressed, as the record is adequate to fairly decide the merits of these claims. The RO has complied with, or exceeded, the mandates of the VCAA and its implementing regulations. A remand to afford the RO initial review of these claims in light of the regulations implementing the VCAA would serve no useful purpose. Evidence The veteran's service medical records reveal that on January 6, 1943, possible chronic PTB was diagnosed. He had complained of a chronic cough with occasional blood streaked sputum for the preceding two months. One sputum sample revealed acid fast bacteria. He had night sweats and lost about 10 lbs. in four months. By January 25, 1943, following studies including X-ray, the diagnosis was amended to pneumonia, broncho. A note dated in February 1943 reveals that the veteran was hospitalized to rule out clinical and X- ray evidence of PTB. Upon admission, he showed symptoms and physical signs of broncho pneumonia. X-ray examination showed no evidence of PTB. All symptoms had disappeared. Repeat X-ray also failed to show evidence of PTB. On the veteran's separation examination, dated in January 1946, photofluorographic chest examination was negative. The veteran's respiratory system was normal. On VA compensation examination in March 1999, the examiner noted that he reviewed the veteran's service medical records. The veteran reported that in January 1943 he was placed in isolation because he had cough and bloody sputum and fever for about ten days. He stated that he was isolated for about three weeks and then treated on a general medical ward for one more week. He did not recall whether TB had ever been diagnosed. He reported no lung or breathing problems since the episode in 1943. He did not have any nightsweats or hemoptysis. He did have a chronic cough with whitish sputum daily, especially during the morning hours. He was a chronic smoker for about the last 60 years. He claimed that in the Navy he was exposed to paint fumes, smoke, and asbestos, especially while working on new ships. He felt that he had inhaled asbestos during his work on ships. He did not complain of shortness of breath during routine activities, and could walk up to one half mile without shortness of breath at a slow pace. He did complain of shortness of breath if he walked fast or did physically demanding work like washing or cleaning. Physical examination showed the veteran had no edema, clubbing, cyanosis, or chest deformity. His breath sounds were normal without any rales or rhonchi. Pulmonary function tests were consistent with moderate obstructive pulmonary disease, without significant response to bronchodilation. There was also evidence of mild restrictive lung disease. The chest X-ray examination revealed increased markings in the right lower lobe, probably consistent with pleural scarring. There was a small area of radiodensity in the right upper lobe consistent with fibrosis. There was calcification of hilar lymph nodes, suggesting old ganglionitis [probably granulomatous] process like tuberculosis, and there was hyperaeration of lung fields consistent with COPD. There were no significant interstitial markings in the lower lung fields to suggest asbestosis and there were no pleural plaques suggestive of asbestos related disease. The diagnoses were chronic nicotine dependence, not acquired during military service; moderately severe obstructive pulmonary disease related to chronic nicotine dependence; and probable healed PTB with mild residual pulmonary parenchymal and pleural scarring resulting in mild restrictive lung disease. There was no clinical evidence of active PTB. The examiner noted there was no clinical evidence of pulmonary asbestosis. Letters from the Western Institute for Occupational/Environmental Science, Inc. (WIOES), dated in October 1978, February 1979, and March 1979, note that the veteran participated in the Bay Area Asbestos Surveillance Project, which included interpretation of chest X-rays. It was noted that X-rays showed "a questionable abnormality" that was not thought to be an immediately serious problem. The veteran also submitted private medical records dating from November 1996 to October 2000 from the Washoe Medical Center. These records, in relevant part, reflect treatment for pneumonia and COPD. During hospitalization in October 2000, the diagnoses were right basilar pneumonia, COPD due to tobacco abuse, and question of asbestosis. The "question of asbestosis" diagnosis appears to be based on a history of asbestos exposure provided by the veteran. Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303(a) (2001). The Court has held that, in order to prevail in a claim of service connection on the merits, there must be: (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Tuberculosis may be presumed to have been incurred in service if it was manifested to a degree of 10 percent or more within three years after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309 (2001). To establish entitlement to service connection for an asbestos related disease, a claimant must present specific evidence of inservice exposure to asbestos, and also of a relationship between such exposure and the disability for which service connection is claimed. Dyment v. West, 13 Vet. App. 141, 145 (1999); VAOPGCPREC 4-2000. VA has published guidelines for compensation claims based on asbestos exposure in Veterans Benefits Administration Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). The guidelines include a nonexclusive listing of asbestos related diseases/abnormalities, including asbestosis. M21-1, Part VI, par. 7.21(a)(1) & (2). Although a lay person is not competent to testify as to the cause of disease, a veteran is competent to testify as to the facts of asbestos exposure. McGinty v. Brown, 4 Vet. App. at 432. Analysis Although the veteran's service medical reflect consideration of the possibility that he had PTB, diagnostic studies in service, including X-rays, ultimately established that he did not have PTB, and that the proper diagnosis was pneumonia, which resolved with treatment. The veteran himself has indicated that he does not know whether PTB was diagnosed in service. Hence, service connection for PTB on the basis that it was first shown in service is not warranted. Likewise, there is no evidence that PTB was manifested in the three years following the veteran's discharge from active duty. Accordingly, presumptive service connection also is not warranted. The veteran does not have active PTB. A VA examiner has noted that the veteran has "probable healed PTB with mild residual pulmonary parenchymal and pleural scarring resulting in mild restrictive lung disease." However, there is no competent evidence relating any current lung pathology to PTB in service. Without any evidence of a nexus between current disability stemming from PTB and service, service connection for PTB is not warranted. Hickson v, West, 12 Vet. App. 247 (1999). Regarding service connection for asbestosis, the analysis of that claim begins with factfinding whether such disability is present. Medical evidence of current disability is a threshold requirement for establishing service connection for a claimed disability. Here, the veteran's treatment records and the report of a VA examination do not reveal the presence of asbestosis, and the veteran has not identified any outstanding medical records that might confirm he has such disease. In fact, the March 1999 VA examiner specifically noted "No clinical evidence of pulmonary asbestosis." There is no need to consider further M21-1 guidelines for processing asbestos exposure related claims, including a determination as to asbestos exposure in service. Without evidence of current claimed disability, service connection for such disability may not be established. See Hickson, 12 Vet. App. at 253. ORDER Service connection for asbestosis and PTB is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.