Citation Nr: 0213685 Decision Date: 10/04/02 Archive Date: 10/10/02 DOCKET NO. 97-17 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. S. Hughes, Counsel INTRODUCTION The veteran served on active duty from March 1952 to February 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran was afforded a personal hearing before the RO in June 1997. This case was previously before the Board and was remanded in September 1998. It is noted that, when this case was previously before the Board, the veteran had no designated representative. Thereafter, in January 2000, the RO received an executed VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, from the veteran which showed that he had elected to have the Disabled American Veterans serve as his accredited representative. FINDING OF FACT The veteran's asbestosis is not related to his period of active duty service. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 and Supp. 2002); 38 C.F.R. § 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Initially, the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. 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 intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). After reviewing the claims folder, the Board finds that there has been substantial compliance with the assistance provisions set forth in the new law and regulation. The record in this case includes service medical and personnel records, VA medical records, a VA examination report, private treatment records, and records from the Social Security Administration. The record also includes military records which document the veteran's exposure to asbestos during his period of active duty. Additionally, as the record shows that the veteran has been afforded a VA examination, with an etiology opinion, in connection with his claim, the requirements of 38 C.F.R. § 3.159(c)(4) have been met. See 66 Fed. Reg. 45,631 (Aug. 29, 2001). Significantly, no additional pertinent evidence has been identified by the claimant as relevant to the issue on appeal. Under these circumstances, no further action is necessary to assist the claimant with the claim. Furthermore, the claimant has been notified of the applicable laws and regulations which set forth the criteria for entitlement to service connection. The discussions in the rating decision, statement of the case, supplemental statements of the case, and Board remand have informed the claimant of the information and evidence necessary to warrant entitlement to the benefit sought. Additionally, the record shows that, by an April 2002 letter, the veteran was advised of the provisions of the new VA regulations regarding the timing and scope of VA assistance, including the type of evidence necessary to substantiate his claims for service connection as well as the types of evidence VA would assist him in obtaining. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the April 2002 letter was issued in connection with claims which are unrelated to the present appeal, the information included in that letter nevertheless adequately notified the veteran of the provisions of the VCAA. The Board therefore finds that the notice requirements of the new law and regulation have been met. With respect to asbestos-related claims, it must be determined whether the claim-development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the court indicated that the Board should have specifically referenced the Department of Veterans Benefits Circular (DVB Circular) and discussed the RO's compliance with the Circular's claim-development procedures). With such claims, 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 pertinent latency and exposure information. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO complied with these procedures. The Board has reviewed the facts of this case in light of VCAA and the new VCAA regulations. As discussed above, VA has made all reasonable efforts to assist the claimant in the development of the claim, has notified the claimant of the information and evidence necessary to substantiate the claim, and has verified compliance with the DVB Circular's asbestos- related claims development procedures. Consequently, the case need not be referred to the claimant or the claimant's representative for further argument as the Board's consideration of the new law and new regulations in the first instance does not prejudice the claimant. See generally Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992). Under the circumstances of this case, where there has been substantial compliance with the new legislation and the new implementing regulation, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Analysis The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In McGinty v. Brown, 4 Vet. App. 428 (1993), the Court, noting the absence of specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, observed that some guidelines for compensation claims based on asbestos exposure were published in DVB Circular 21-88-8, dated May 11, 1988. The DVB Circular was subsequently rescinded but its basic guidelines are now found in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3 (January 31, 1997); see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, that an asbestos-related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b), p. 7- IV- 3 (January 31, 1997). 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. 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. The veteran served on active duty from March 1952 to February 1956, including service at the Marine Corps Supply Annex in Barstow, California. His service medical and personnel records do not show asbestos exposure; however, these records note that his related civilian occupation and military occupational specialty was sheet metal worker. Additionally, records from the United States Marine Corps, Office of General Counsel, include an Asbestos Activity Summary of the Marine Corps Logistics Base in Barstow, California, which confirms that the veteran may have been exposed to asbestos while serving at this location. The evidence also demonstrates that the veteran has had many years of asbestos exposure prior to and after service. Specifically, a January 1991 Medical Report in connection with evaluation of the veteran for the presence or absence of asbestos related disease, notes that the veteran began working as a sheet metal worker in 1947 at the age of 14. He was initially involved in tearing out old coal fire asbestos containing furnaces. In this environment, the veteran was regularly exposed to dusts associated with sawing asbestos material. This examination report further notes that, from 1952 to 1956, the veteran was in the United States Marine Corps where he was a heavy machine operator and had no known exposure to airborne asbestos material. The Medical Report also states that, from 1956 to the date of examination, the veteran resumed work on residential and commercial construction as a sheet metal worker with nearly daily exposure to airborne asbestos material until 1980 and intermittently thereafter. It is also noted that the veteran smoked cigarettes at the rate of two packages per day from 1947 to 1990 and subsequently at the rate of one-half pack per day. Similarly, a May 1995 report of psychiatric examination notes that, at the insistence of his father, the veteran dropped out of school after the 8th grade and went to work with a sheet metal company. It is also noted that, with the exception of his period of military service, the veteran remained in this occupation until he became physically disabled. During his June 1997 personal hearing at the RO as well as subsequent statements dated in January 1998 and January 1999, the veteran reported that, while stationed in Barstow, California, he was exposed to asbestos while working in the warehouses and removing heating and ductwork in the housing areas. These statements also reflect the veteran's belief that he had minimal to no asbestos exposure after service. The veteran testified that he usually worked in residential basements where he had no exposure. He also reported that, after his separation from service, companies were recognizing the dangers of asbestos and were cutting back on the use of this material. Having determined that there is evidence to suggest that the veteran was exposed to asbestos prior to, during, and subsequent to service; the Board moves to the discussion of whether the veteran has a current asbestos related pulmonary disability. In this regard, it is noted that veteran's service medical records do not contain any reference to a lung disorder, including asbestosis. Moreover, radiologic studies of the veteran's chest, dated from 1952 to 1956, were consistently negative. Additionally, the veteran has testified that he did not have a lung disorder during service and that his initial screening for asbestosis was in the late 1970's. Private medical records, in connection with treatment for an unrelated disorder, include a radiology examination report, dated on March 1, 1983, which reflects a diagnosis of bilateral lower lobe infiltrate. A subsequent radiology examination performed on the following day shows a diagnosis of improving infiltrate in both lower lobes and notes that endotracheal tube had been removed. Records from the Social Security Administration include a July 1995 Disability Determination and Transmittal which notes that the veteran became disabled in February 1994 due to asbestosis as a primary diagnosis and affective (mood) disorder as a secondary diagnosis. An Explanation of Determination notes that the veteran underwent examination by a pulmonary specialist in February 1994. A report of this examination notes that the veteran was a retired sheet metal worker who had been active in the trade from 1959 to one month prior to the examination. This report includes the examiner's comment that the exposure history, pleural changes, parenchymal opacities, crackles on exam, and the decreased DLCO (Diffusion Capacity of the Lung for Carbon Monoxide) are consistent with asbestosis and that because of these findings, the veteran was at increased risk to develop such asbestos related problems as debilitating parenchymal asbestosis or lung cancer. VA treatment records, dated form September 1996 to February 2000, reflect that X-ray studies of the veteran's chest revealed hyperinflated lungs and calcified pleural plaques in both bases. A March 1999 report of VA respiratory examination notes that the examiner reviewed the veteran's extensive medical records and includes diagnoses of COPD (chronic obstructive pulmonary disease) and asbestosis. Exposure to asbestos for many years was noted. This examination report also includes the opinion of the examiner that physical examination of the veteran as well as X-ray and pulmonary function testing were consistent with obstructive airways disease and asbestosis. Having determined that the veteran had asbestos exposure prior to, during, and after service and that he has a current asbestos related pulmonary disability, it must be determined whether the current disability is etiologically related to the veteran's alleged asbestos exposure during service. In this regard, the Board notes that the March 1999 report of VA respiratory examination includes the opinion of the examiner that it is impossible to retrospectively determine with complete accuracy where the veteran's asbestos exposure occurred and to what degree each contributed to his asbestosis. However, the examiner notes that various statements in the veteran's record suggest that he had significant exposure to asbestos prior to his military service and he may have had some exposure during his period of service. Accordingly, the examiner concludes that the development of the veteran's disease was most likely to have occurred from asbestos exposure while not in the service. The first medical evidence of asbestosis is from 1994, decades after service. However, based on examination of the veteran and review of his medical records to include his history of asbestos exposure, the opinion of a medical specialist is that the development of the veteran's disease was most likely to have occurred from asbestos exposure while not in the service. Moreover, upon examination in January 1991 and February 1994, private physicians note the veteran's history of asbestos exposure and are either silent with respect to such exposure during service or state that there was no known exposure at this time. In view of the above, the Board finds that the preponderance of the competent evidence is against the veteran's claim. It appears clear that the veteran had exposure to asbestos for many years, prior to, during, and after service. However, a trained medical examiner, after reviewing the record showing a history of asbestos exposure for many years, offered an opinion that the veteran's asbestos-related disability most likely was due to exposure while not in the military. Such an opinion appears to be supported by the overall evidence, and there is no persuasive competent evidence to the contrary. The Board acknowledges the veteran's belief in a causal connection between his current asbestosis and his asbestos exposure during military service; however, as a layman, the appellant is not qualified or competent to render opinions as to medical diagnoses, etiology or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The record shows that a trained medical examiner has examined the veteran and reviewed the claims file, but was unable to find a basis for linking findings of current asbestos related pulmonary disability to the veteran's period of military service. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence to otherwise permit favorable action on the veteran's claim. 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ALAN S. PEEVY 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.