Citation Nr: 0208619 Decision Date: 07/29/02 Archive Date: 08/02/02 DOCKET NO. 96-29 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to service connection for a respiratory disorder, claimed due to asbestos exposure. (The issue of entitlement to an increased disability rating for service-connected folliculitis will be the subject of a later decision) REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Associate Counsel INTRODUCTION The veteran had verified active service from May 1988 to May 1991, from June 1991 to December 1991 and from April 1992 to September 1992. Subsequent reserve service is indicated by the evidence of record. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which denied the benefits addressed in this appeal. The veteran subsequently relocated to St. Louis, Missouri. Procedural history The RO received the veteran's claim for service connection on November 23, 1993. In an April 1995 rating decision, the Chicago RO denied the veteran's claim for service connection for a respiratory disorder, claimed as due to asbestos exposure, on the basis that no disability was shown, and the claim was therefore not well grounded. The veteran disagreed with the April 1995 denial in November 1995, and submitted his substantive appeal (VA Form 9) in June 1996. In September 1997, the RO undertook a review of its April 1995 rating decision, in light of then-recent legislation pertaining to veterans of the Persian Gulf War. The denial of the veteran's claim was continued. In a March 2000 decision, the Board remanded this issue to obtain evidence referred to by the veteran, but not associated with the claims file. In May 2000, the RO attempted to obtain that evidence, and found that it did not exist. After the requested development was accomplished, to the extent practicable, the St. Louis RO issued a supplemental statement of the case (SSOC) in March 2002 which continued the previous denial. The Board notes that although the veteran requested a local RO hearing in his June 1996 substantive appeal (VA Form 9), he specifically withdrew his request in a September 1998 letter, signed by him. There are no other outstanding hearing requests of record. Other issues In a letter dated September 1998, the veteran withdrew an appeal as to the issue of entitlement to service connection for memory impairment; thus, this issue is not in appellate status. 38 C.F.R. § 20.204(c) (2001). In April 2002, the RO issued a rating decision addressing claims for service connection for a right ankle disorder, a left ankle disorder, a back disorder, residuals of a concussion, and a sinus disorder. These issues are not on appeal, and will not be addressed further in this decision. The Board is undertaking additional development on the issue of entitlement to an increased initial disability rating for service connected folliculitis, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) [to be codified at 38 C.F.R. § 19.9(a)(2)]. When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. See 67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) [to be codified at 38 C.F.R. § 20.903]. After giving notice and reviewing the veteran's response to the notice, the Board will prepare a separate decision addressing that issue. FINDINGS OF FACT 1. There is no competent medical diagnosis of any asbestos- related disease. 2. The record contains no competent medical evidence of a link between any currently manifested disability and the veteran's in-service exposure to asbestos. CONCLUSION OF LAW A respiratory disorder was not incurred in military service or as a result of exposure to asbestos in the service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. § 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking entitlement to service connection for a respiratory disorder, which he contends was caused by exposure to asbestos during service. In the interest of clarity, the Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the evidence of record. The VCAA The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)]. This law eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations are also effective November 9, 2000. In this case, the veteran's claim is not final and remains pending. The provisions of the VCAA and the implementing regulations are, accordingly, applicable. See Holliday v. Principi, 14 Vet. App. 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. Specific to asbestos-related claims, the Board must also determine whether the claims development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) [while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Appeals for Veterans Claims indicated that the Board should have specifically referenced the DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) and discussed the RO's compliance with the Circular's claim-development procedures]. With respect to claims involving asbestos exposure, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21. In this case, the record shows that the RO complied with these procedures, as is discussed further below. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issues of entitlement to an increased initial rating for folliculitis and entitlement to service connection for a respiratory disorder have proceeded in accordance with the provisions of the law and regulations. The former well grounded claim requirement The RO initially denied the veteran's claim of entitlement to service connection for a respiratory disorder as a result of asbestos exposure by finding that the claim was not well grounded. The VCAA eliminated the concept of a well grounded claim, and superseded the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. (2000) (per curiam), in which the Court held that VA could not assist in the development of a claim that was not well grounded. The current standard of review is as follows. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West Supp. 2001). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2001); 38 C.F.R. § 3.102 (2001). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In making its determination, the Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein (holding that the Board has the duty to assess the credibility and weight to be given to the evidence.) The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). After notifying the veteran of the evidence needed to substantiate his claim, in the June 2000 and March 2002 SSOCs the RO denied service connection for a respiratory disorder due to asbestos exposure based on the substantive merits of the claim. The veteran was given the opportunity to submit evidence and arguments in response. The Board finds, therefore, that it can consider the substance of the veteran's appeal without prejudice to him. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. The Board will apply the current standard of review in evaluating the veteran's claim. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The veteran was notified of the relevant law and regulations, and of the types of evidence that could be submitted by him in support of his claims through the April 1995 rating decision, the May 1996 statement of the case (SOC) and May 1998, June 2000 and March 2002 SSOCs. The veteran, moreover, was specifically informed of the provisions of the VCAA and what war required of him and VA by that law through correspondence from the St. Louis RO dated December 31, 2001. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. Upon receipt of the veteran's November 1993 claim, the RO sent a letter to the veteran in January 1994, giving details of the evidence necessary to substantiate his claim. The RO requested information on the veteran's duty assignments in service, and his post service work history, as well as the nature and duration of his asbestos exposure. The veteran submitted an asbestos survey memorandum in January 1994 and informed the RO of his work history. The veteran stated that this was all the evidence in his possession. The RO then sent the veteran a letter requesting additional medical evidence to substantiate his claim. In September 1994, the RO followed-up with a letter informing the veteran that simple exposure to asbestos did not constitute a disability and that medical evidence was required. The veteran responded in a letter received October 1994 that he had submitted more than enough information to show exposure, and that he was requesting an appointment at a VA hospital to evaluate his condition. In an attached statement, he referred to an already submitted pulmonary function test. The veteran was afforded a VA examination in December 1994 to evaluate his claim. The report of that examination is of record. In June 1996, the veteran submitted additional medical evidence, which is of record. In August 1997, the veteran notified the RO by phone that he had just completed a pulmonary function test. The RO requested the veteran's latest outpatient treatment records, to include the pulmonary function test report, in August 1997. Also in August 1997, the RO obtained the outpatient treatment records, but the July 1997 pulmonary function test was not among them. In May 2000, in response to the Board's March 2000 remand, the RO requested and obtained copies of all pulmonary function tests, and there was no record of any July 1997 pulmonary function test. In April 2000 and August 2000, the Board notified the veteran that he had submitted duplicate copies of certain evidence and returned the copies to him. The veteran submitted additional evidence in July 2000, and it was associated with the claims file and considered by the RO. The RO requested and obtained the veteran's service medical records and then requested and obtained records missing from the first request. The RO also obtained VA outpatient treatment records. There is no indication that there exists any evidence which has a bearing on this case which has not been obtained. The record contains the report of a VA medical examination conducted in December 1994, which did not find evidence of a respiratory disorder and therefore does not provide an opinion as the etiology of the veteran's currently diagnosed induced asthma. The Board has considered whether an additional VA examination is necessary to evaluate the veteran's claim for service connection for a respiratory disorder. However, because there is no medical evidence of record indicating or even suggesting that the claimed disorder may be associated with the veteran's active service, the Board does not find that an additional VA examination is necessary in this case. 38 U.S.C.A. § 5103A(d); 66 Fed. Reg. 45,630-31 (Aug. 29, 2001) [codified as amended at 38 C.F.R. § 3.159(c)(4)]. In this connection, the Board notes that the May 1998 SOC specifically noted that no medical statement, including those submitted by the veteran, had indicated that the veteran's asthma was causally related asbestos exposure during service. The veteran was clearly informed by this SOC that a nexus opinion would be required of him. He has not submitted such a nexus opinion. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. The veteran withdrew his request for a personal hearing, but has submitted numerous statements, all of which are of record and have been considered. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the new law. Under these circumstances, the Board can identify no further development that would avail the veteran or aid the Board's inquiry. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, the Board will proceed to a decision on the merits. Pertinent Law and Regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. § 3.303 (2001). Where a veteran served ninety days or more during a period of war and certain chronic diseases (including bronchiectasis) become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309 (2001). Asbestos exposure In McGinty v. Brown, 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 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. The Board notes that the DVB circular has been subsumed verbatim as § 7.21 of VA Manual M- 21. VA Manual M-21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The guidelines provide that the latency period for asbestos- related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. In a recent decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that M21-1, Part VI, § 7.68(b)(2)does not create a presumption of exposure to asbestos for any class of veterans. Rather, M21- 1 suggests that asbestos exposure is a fact to be determined from the evidence. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Standard of review The resolution of issues pertinent to a determination of entitlement to service connection must be considered on the basis of the places, types, and circumstances of service as shown by service records, the official history of each organization in which the veteran served, and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 U.S.C.A. § 7104(a) (West Supp. 2001); 38 C.F.R. § 3.303(a) (2001); see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Analysis The veteran seeks entitlement to a respiratory disability, which he claims is due to exposure to asbestos during service. The Board has reviewed the evidence of record. For reasons which will be expressed in greater detail below, the Board finds that a respiratory disorder was incurred neither in service nor as a result of asbestos exposure in service. The Board notes that the veteran has a currently diagnosed respiratory disability. An April 1996 pulmonary note shows complaint of dyspnea on exertion and difficulty getting air out, and the examiner diagnosed exercise induced asthma. A June 1996 letter from pulmonary physician M.L. shows treatment and diagnosis of exercise induced asthma, and a July 1997 outpatient treatment report and an October 1997 clinical record from R.L.M., M.D. show diagnoses of exercise induced asthma. Further, there is evidence of record to support the veteran's contention that he was exposed to asbestos during service. A March 1989 memorandum, entitled "Asbestos Survey", shows exposure to asbestos in February 1989. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that the guidelines established in M21-1 do not create a new presumption or a new basis of entitlement to benefits, but rather set forth a process for VA to follow where asbestos exposure creates a possible nexus between a current disability and service. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See also VA O.G.C. Prec. Op. No. 04-00. As noted by the Board above, the Federal Circuit has adopted the position of the Court. The question which must be answered by the Board, therefore, is whether any medical nexus exists between any incident of service, including asbestos exposure during service, and the veteran's current respiratory disability, exercise induced asthma. In this case, as discussed immediately below, there is nothing in the evidentiary record to support or suggest that a respiratory disorder was incurred in service. In addition, there is nothing in the evidentiary record to support or suggest a relationship between the veteran's exercise induced asthma and his in-service asbestos exposure. The veteran's service medical records do not indicate the onset of a respiratory disorder during active service. A November 1991 report of medical history, signed by the veteran, included answers of "no" to questions concerning asthma and shortness of breath. As noted in the Introduction, in November 1993, the veteran filed his initial claim of entitlement to service connection (VA Form 21-526). In item 19A, nature of sickness, disease or injury, he stated "asbestos exposure". He did not cite any specific illness caused by asbestos exposure. When informed by the Chicago RO that mere exposure to asbestos did not constitute a disability, the veteran replied, in a letter dated September 23, 1994, that he had been exposed to asbestos over a three year period. Again, he did not refer to any current disease. The veteran was accorded a VA compensation and pension examination in December 1994. He reported a history of asbestos exposure in service. Physical examination, X-rays and pulmonary function testing were all negative. The diagnosis was history of asbestos exposure. In a May 1995 communication to VA, the veteran reiterated that he had been exposed to asbestos and that he had since experienced a continual decrease in his capacity for physical exertion. As noted above, exercise induced asthma was initially identified in 1996 and remains the current diagnosis. It is clear from the medical and other evidence of record that a pulmonary disease did not exist during service or for a number of years thereafter. Although the veteran complained of such problems as shortness of breath in 1994 and 1995, several years after the end of his active service, these complaints were not associated with a pulmonary disability by any health care provider. Cf. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) [symptoms alone, without a diagnosed underlying disease entity, may not be service connected]. Accordingly, service connection on the basis of incurrence during service is not warranted. Further, with respect to service connection under 38 C.F.R. § 3.303(d), there is no medical opinion or other competent medical evidence attributing the veteran's asthma to asbestos exposure, or suggesting the possibility of such a relationship. The report of the December 1994 VA examination showed normal lungs on inspiration and expiration, with good expansion symmetrically, good diaphragmatic excursion to 3 cm bilaterally, and no wheezing or adventitial sounds. The Board finds it significant that the examiner noted the veteran's history of asbestos exposure in service, but not attribute any respiratory pathology to such exposure and in fact found the veteran to have no diagnosed respiratory disorder at that time. Also of great significance is the fact that X-rays were negative. There was then, and remains, no X-ray evidence of residuals of asbestos exposure, and the veteran has pointed to no such evidence. In short, although the veteran has been seeking service connection for residuals of asbestos exposure since 1993, and asthma was identified in 1996, there is no medical evidence which is suggestive of any link between the asbestos exposure and the asthma. Evidence in support of the veteran's claim boils in essence down to own contentions that such a connection exists. However, it is now well established that although he is competent to report on his symptoms, as a lay person without medical training the veteran is not competent to relate those symptoms to a particular diagnosis or specific etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Accordingly, one of the elements required for service connection, medical nexus evidence showing a link between asbestos exposure in service and the current pulmonary disability, has not been established. The Board therefore finds that a preponderance of the evidence is against a showing that the veteran's respiratory disorder resulted directly from a disease or injury incurred in active service, or as a result of asbestos exposure in service. The veteran's claim of entitlement to service connection for a respiratory disorder is therefore denied. ORDER Service connection for a respiratory disorder, claimed due to asbestos exposure, is denied. Barry F. Bohan 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.