Citation Nr: 0213740 Decision Date: 10/07/02 Archive Date: 10/10/02 DOCKET NO. 99-23 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a lung disorder, to include asbestosis. 2. Entitlement to the assignment of a compensable evaluation for a noncalcified pleural plaque. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from February 1944 to June 1946. This appeal arises from a March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the veteran's application to reopen his claim for service connection for a pulmonary disorder, to include as due to exposure to asbestos. In November 1995 the Board of Veterans' Appeals remanded the claim to the RO. In a July 1999 decision the RO reopened the veteran's claim for service connection for a pulmonary disability due to exposure to asbestos and denied the claim on the merits. In a July 2000 decision, the RO granted service connection for a noncalcified left pleural plaque and assigned a noncompensable rating, and continued the denial of service connection for other lung disease, to include asbestosis. The veteran appealed for the assignment of a compensable rating for the noncalcified left pleural plaque. In November 2000 the veteran filed an application to reopen a claim for service connection for heart disease. As this matter has not been developed or certified for appellate review it is referred to the RO for appropriate action. As noted above, the RO reopened the veteran's claim for service connection for lung disease, to include asbestosis. However, the Board must consider the threshold question of whether new and material evidence has been submitted to reopen the claim. This is because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Jackson v. Principi, 265 F.3d 1366 (Fed.Cir. 2001). Therefore, regardless of the way the RO characterized the issue, the initial question before the Board is whether new and material evidence has been presented. Id. In September 2000, the Board received additional medical evidence pertaining to the veteran's claims with a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2000). FINDINGS OF FACT 1. An RO decision in May 1991 denied the veteran's initial claim for service connection for lung disease due to asbestos exposure; the veteran timely notice of disagreement and a statement of the case was issued but he did not file a timely substantive appeal. 2. The additional evidence submitted in support of the veteran's application to reopen the claim of service connection for lung disease, to include asbestosis bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran was exposed to asbestos while serving as a machinist mate during service. 4. The evidence is in relative equipoise as to whether the veteran has asbestosis due to his in-service exposure to asbestos. 5. The preponderance of the evidence is against the claim that his additional diagnosed lung disorders, to include chronic obstructive pulmonary disease (COPD) began during or are causally linked to any incident of service, to include exposure to asbestos. 6. The veteran's service-connected non-calcified pleural plaque is asymptomatic and not productive of any functional impairment. CONCLUSIONS OF LAW 1. The RO May 1991 rating decision denying service connection for lung disease due to exposure to asbestos is final. 38 U.S.C.A. § 7105(c) (West 1991); 38. C.F.R. §§ 3.104, 19.129, 19.130, 19.192 (1991); 38 C.F.R. § 20.1103 (2001). 2. New and material evidence has been submitted to reopen the claim of entitlement to service connection for a pulmonary disorder, to include asbestosis. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (2001). 3. Service connection for asbestosis is warranted. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (2001). 4. Service connection for a lung disorder other than asbestosis is not warranted. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (2001). 5. The criteria for the assignment of a compensable rating for a noncalcified left pleural plaque have not been met. 38 U.S.C.A. §§ 1110, 1155 (West 1991); 38 C.F.R. § 4.20, 4.97, Diagnostic Code 6899-6833 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters. During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (the VCAA) became law. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (codified as amended at 38 U.S.C. § 5107(a) (West Supp. 2001)). VA has also revised the provisions of 38 C.F.R. § 3.159 effective November 9, 2000, in view of the new statutory changes. See 66 Fed. Reg. 45620-45632 (August 29, 2001). The Board notes that the RO did not refer to the explicit provisions of the VCAA when it adjudicated the case below. Nevertheless, the Board finds that VA's duties have been fulfilled in the instant case. The Board is satisfied that all relevant facts have been properly developed. There is no indication of any additional relevant evidence that has not been obtained. Regarding VA's has a duty to notify, the Board notes that the RO advised the veteran of the evidence necessary to substantiate his claim, by various documents such as the letters sent by the RO to the veteran, the Statement of the Case, the Supplemental Statements of the Case, and the RO decisions. As such, the veteran was kept apprised of what he must show to prevail in his claims, what information and evidence he was responsible for, and what evidence VA must secure. Therefore, there is no further duty to notify. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board further notes that, in addition to the fact that there does not appear to be any additional evidence available that is relevant to this appeal, the instant Board decision on the claim for service connection for asbestosis is favorable to the veteran. This appeal stems from a March 1993 RO decision. It has been remanded for additional development, which was completed, and examinations with opinions addressing the several issues in this appeal have been obtained. There should be no further delay in granting this 75 year old veteran his benefit of service connection for asbestosis. Consequently, the Board finds that, in the circumstances of this case, any additional development or notification 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); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, this Court has concluded that the VCAA does not apply). Thus, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, to include the revised regulatory provisions 38 C.F.R. § 3.159. No additional assistance or notification to the veteran is required based on the facts of the instant case. As already stated, the RO did not refer to the explicit provisions of the VCAA when it adjudicated the case below. However, for the reasons stated above, the Board has found that VA's duties under the VCAA have been fulfilled. Further, the RO considered all of the relevant evidence of record and all of the applicable law and regulations when it adjudicated the claim below, and the Board will do the same. As such, there has been no prejudice to the veteran that would warrant a remand, and the veteran's procedural rights have not been abridged. Bernard v. Brown, 4 Vet. App. 384 (1993). Veterans Benefits Administration Adjudication Procedure Manual (M21-1), Part VI, 7.21 outlines the procedures for developing claims involving asbestos-related disabilities. The RO and the Board have followed those instructions as to the development of the veteran's claim. The Board ordered an opinion to resolve a medical question raised in the record. The veteran was notified of that opinion and given an opportunity to respond. He submitted additional evidence in response. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A § 5103A. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Factual Background. The veteran served in the U.S. Navy from February 1944 to June 1946. His Notice of Separation from Service reveals that he served as a motor machinist mate. His duties included repairing the boiler, pumps, engine, steam lines, and other ship maintenance. The service medical records show no lung disease, to include asbestosis. On service separation examination in June 1946 the respiratory system was noted to be normal and a chest X- ray was negative. A VA examination in June 1949 noted the veteran's respiratory system was normal. The first reference to a diagnosis of a respiratory disorder in the claim folder appears in a VA hospital record dated in June 1979, which notes a history of emphysema." The veteran was reported to be very short of breath. X-rays revealed no evidence of active inflammatory disease and the lungs were reported to be somewhat over distended in appearance. Pulmonary Function Tests revealed FVC=57% of predicted, FEV1=50% of predicted, and FEVI/FVC=67%. An October 1979 decision of the Social Security Administration includes references to chronic obstructive pulmonary disease. A December 1982 VA pulmonary function study revealed borderline normal spirometry and early small airways disease could not be excluded. VA hospital records for December through January of 1983 reveal the veteran underwent a two vessel aorta bypass graft. Pulmonary function studies at that time were normal. A March 1983 VA examination report included diagnosis of coronary artery disease, status post bypass; status post myocardial infarction by history; compensated congestive heart failure and chest pain, atypical for angina. Noted in the report were the veteran's risk factors, which included a 40 pack year history of tobacco use. In October 1987 the veteran was referred for a pulmonary consultation for evaluation of severe restrictive and obstructive disease with a history of asbestos exposure in service. After evaluating the veteran's history and recording the objective findings the following assessment was recorded. "Hard to correlate normal pulmonary function tests in 1979 and 1982 mean for increased volumes with current study. "CRX" (chest X-ray) shows increase in air/volumes consistent with chronic obstructive pulmonary disease, "?" false study, diaphragmatic paralysis. Little lung for asbestosis, which usually appears within 30 years, yet has crackles. Repeat studies were recommended. A March 1990 pulmonary function test was interpreted as revealing mild (illegible) obstructive disease with good bronchodilator response and normal lung volumes. An October 1990 pulmonary function test revealed mild combined obstructive and restrictive pattern. A November 1990 computed tomography (CT) scan was conducted because their was a suspicious of fibrosis due to exposure to asbestos. The report of the CT scan of the thorax revealed no parenchymal infiltrates or mass lesions. There was no evidence of pleural thickening, plaque formations of calcifications. No significant interstitial pulmonary fibrosis was demonstrated. In March 1991 the veteran submitted a Statement in Support of Claim in reply. He noted he served aboard four vessels in service, the USS Gentry, USS Roy O. Hale, USS Floyd B. Parks and the USS Kretechmer. He served in the "Eng.Div." He repaired the boiler, pumps, engine, steam lines, and any ships maintenance partially below decks and battle station "before" deck. After service he was employed in the plastering trade for twelve years. He worked as a truck driver for 5 years, repaired vending machines for 5 years and was a self employed contractor with the Forest Service for 8 years. The veteran indicated in April 1991 that he was diagnosed with asbestosis at the Lake City VA Medical Center. He stated that all of his medical records including previous VA Medical Center records were located at the Lake City VA Medical Center. August 1990 VA records include diagnosis of chronic obstructive pulmonary disease. Under the heading history a notation of "hx of asbestosis" was recorded. In September 1990 under assessment is written r/o bronchitis, coronary artery disease status post coronary artery bypass graft and history of asbestosis. Another September 1990 VA record includes under assessment, history of asbestosis ?. A September 1990 report of VA chest X-rays includes a clinical history of asbestosis. The impression of the X-rays is status post coronary artery bypass graft (CABG) and no acute pulmonary disease. A Consultation Sheet dated in September 1990 requests an evaluation because a history of asbestosis was noted and chest X-rays were within normal limits. The provisional diagnosis was rule/out asbestosis. The October 2, 1990 VA note includes the veteran's exposure in service in the engine room to asbestos. The assessment is chronic obstructive pulmonary disease and chronic restrictive pulmonary disease due to his heart?, and fibrosis ? (not evident on plain X-ray). November 1990 VA records include an assessment of exposure to asbestos with no asbestosis on X-rays. February 1991 VA records include only an assessment of asbestos exposure. June and July 1991 VA records of hospitalization include a past medical history of pulmonary asbestosis. The social history revealed the veteran was a retired naval engineer with significant asbestos exposure and a long tobacco history of smoking greater than 35 pack per year and positive ethanol abuse. July 1991 VA records also include assessment of mild chronic obstructive pulmonary disease and chronic restrictive pulmonary disease (COPD) (mild fibrosis and arteriosclerotic heart disease (ASHD)). March 1992 VA chest X-rays revealed the pulmonary vasculature demonstrated increased prominence and redistribution consistent with congestive heart failure. The lungs were otherwise clear. The impression was congestive heart failure. April 1992 VA records included assessments of ASHD, mild COPD, mild fibrosis and chronic cough due to all of the above. Additional April 1992 VA records include notation of COPD-asbestosis-heavy exposure, no fibrosis. May 1992 chest X-ray revealed the veteran was status post median sternotomy with probable bypass surgery and there was no evidence of acute cardiopulmonary disease. July 1992 VA chest X-rays revealed no interval change and minimal scarring in the left lung base postoperatively. August 1992 VA chest X-ray revealed postoperative scarring in the left lung base, which was unchanged from the prior exam. The lung were free of focal infiltrates, pleural effusions and mass lesions. The impression was no interval change, minimal scarring in the left lung base postoperatively. June 1992 VA chest X-ray revealed the veteran was status post median sternotomy for CABG. There was mild cardiomegaly with mild pulmonary congestion, otherwise the lung fields were clear. Findings were consistent with mild congestive heart failure. July and August 1992 VA hospital records again note a past medical history of pulmonary asbestosis. The diagnoses made at that time do not include asbestosis. A July 1992 chest X- ray report reveals there was a pleural parenchymal scar in the left lateral chest wall at the site of the previous chest tube insertion. The impression noted was status post CABG surgery, mild cardiomegaly, pleural parenchymal scar of the left lower lung with otherwise apparent clear lungs. A September 1992 chest X-ray revealed sternotomy wires and vascular clips in position consistent with multiple coronary bypass surgery. Lungs were hyperexpanded. There was accentuation of some of the interstitial pulmonary markings of a chronic type. There was no evidence of active pneumonia. There were changes of arteriosclerosis. The impression was arteriosclerotic cardiovascular disease, status post CABG, COPD, and negative for active pulmonary lesion. May 1993 VA records included assessments of COPD and emphysema of moderate degree. Also noted was asbestos exposure in the Navy, but no calcification or pleural plagues. There was a minimal fibro-nodular infiltrate. A VA Chest X-ray revealed evidence of previous surgery with no acute cardiopulmonary abnormalities seen. There were few fibrotic changes seen in structures, which was noted to be unremarkable. In September 1993 the veteran filed his substantive appeal. He indicated the doctors had told him that COPD could be caused by something in his lungs. He had diminished lung capacity which he says he was told was probably caused by asbestos exposure. The veteran recalled that the surgeon at the VA Medical Center in Gainesville told him that there was evidence of fibrosis on the X-rays and not cancer. April 1994 VA records included assessments of asbestosis, tobacco use (none for 15 years), and COPD. In private radiologist report of March 1995 X-rays revealed evidence of previous CABG. Old inflammatory changes were seen in both bases, more pronounced on the left. There appeared to be some pleural thickening along the left lateral chest wall, presumably secondary to the old inflammatory change. The possibility of a low grade pneumonitis was also noted. April 1995 VA records included an assessment of possible pulmonary asbestosis with bilateral basal scarring and left pleural thickening. In June 1995 VA records noted the examiner discussed the role of asbestosis in the clinical picture and chest X-ray findings of pleural thickening (there is no explanation in the record as to what that role was). The veteran was to return for further evaluation. July 1995 VA records include an assessment of pulmonary asbestosis. An October 1995 VA pulmonary function test report includes diagnoses of mild obstructive airway disease and minimal diffusion defect. July 1996 VA records from the pulmonary clinic included an evaluation for shortness of breath. The veteran had a significant history of COPD and coronary artery disease. The veteran had smoked one pack a day for 35 years. He had heavy exposure to asbestos in the Navy. The assessment was that the veteran's shortness of breath was a combination of congestive heart failure, obesity and some component of COPD, but not much given his FEV.1 of 1.73. August 1996 VA records again noted his shortness of breath was multifactorial-a combination of coronary artery disease, congestive heart failure, and chronic obstructive heart disease (mild). The most likely contributor was congestive heart failure/coronary artery disease. A VA examination of the veteran's respiratory system was conducted in November 1997. Physical examination revealed no rales at the bases of his lungs. Chest films taken in November 1997 showed no evidence of pleural or parenchymal disease related to asbestos. Pulmonary function tests revealed decreased diffusing capacity that was consistent with an emphysematous component of his obstructive disease. The VA physician (Dr. JR) opined that films showed no evidence of asbestos disease and that the veteran symptoms were secondary to coronary artery disease, which is self inflicted from cigarette smoking and related to his hypercholesterolemia. It was noted that the veteran began smoking at 17 years of age and stopped cigarettes 17 years ago. The veteran submitted a May 1998 letter from his private internist, Dr. N. It reads as follows: (The veteran) has been our patient since 1996. Prior to that he was with Casa Blanca Clinic and several other places. We have records dating back to 1992, which show parenchymal scarring, possibly secondary to asbestosis. In multiple notes from many different doctors, this has been related to possible asbestosis because of his involvement in the service and in an area that would have asbestos. He is now on oxygen. I think that there may be a component that can be contributed to asbestosis, not just coronary artery disease, which he certainly has that well documented, but also having multiple myocardial infarctions and open heart surgery times two. I am not a pulmonary specialist, but I think that this definitely needs to be taken into consideration as part of his problem. July 1998 VA chest views revealed a possible nodule at the right base and indistinct density over the left anterior 6th rib, probably related to pleural calcification . A September 1998 letter from Dr. N., the veteran's internist included impressions of mild to moderate COPD, history of asbestos exposure (interstitial fibrosis and a notation that his interstitial fibrosis was probably secondary to asbestos), improved hypoxemia and coronary artery disease. On physical examination the veteran had diminished breath sounds bilaterally with occasional rhonchi. The veteran testified at an RO hearing in November 1998 that asbestosis had been diagnosed by Dr. G. at the Southeast Clinic in 1994. He noted that Dr. G had had a heart attack and was no longer with the Southeast Clinic. The veteran also asserted that his restrictive lung disease could possibly be the result of exposure to asbestos. A VA examination of the veteran was conducted in April 1999 to determine if the veteran had asbestosis. The VA physician (Dr. B) indicated he had reviewed the claims folder. The veteran had severe coronary artery disease, with a left ventricular ejection fraction of 26 percent. He also had evidence of chronic obstructive pulmonary disease, rather than true restrictive disease. Examination of the veteran revealed his chest appeared hyperinflated, with an increase in the AP diameter. The chest was also hyperesonant and the diaphragms moved poorly. Breath sounds were modestly reduced throughout the chest. There was slight prolongation of the expiratory phase of respiration. There are no rales, rhonchi, or wheezes, however. There was a systolic murmur, grade 2-3/6, heard toward the apex. The heart could be percussed at 10 centimeters but the physician suspected that it was much larger and the limitation of the percussion to detect size was probably related to hyperinflation of the chest. The impression of Dr. B was that the veteran had COPD and coronary artery disease with significant impairment of activity. There was possible asbestos exposure, as described, but none of the studies in the record were convincing that he had disease related to asbestos. In order to determine if there were any pleural based calcifications or other signs of asbestosis Dr. B requested a CT scan of the chest. Pulmonary function studies were also requested. In May 1999 Dr. B added these hand written findings to the examination report. The CT chest did not demonstrate findings supportive of asbestosis. The pulmonary function test showed mild COPD. Dr. B suspected that the veteran's severe ischemic cardiomyopathy was responsible for the bulk of his symptoms. The veteran submitted his notice of disagreement in August 1999. He stated that Dr. S was a pulmonary specialist. He asserted Dr. B the VA physician who conducted the April 1999 VA examination was an internist, not a pulmonary specialist. He stated the physician spent only three or four minutes reviewing the claims folder. The veteran states Dr. B told him the CT scan did not always pick up asbestosis. The veteran pointed out the diagnosis of interstitial fibrosis noted at the beginning of the VA pulmonary function test report. The veteran listed fourteen different records which he asserted supported his claim. In response to the veteran's contention that his VA examination had been inadequate the RO arranged for the veteran to be reexamined by a pulmonary specialist in January 2000. The VA pulmonary physician noted the veteran was referred to the pulmonary clinic for evaluation of suspected asbestosis. Examination of the veteran revealed his breath sounds were uniformly decreased in both lung fields but there were no wheezes or crackles. Dr. V., a VA pulmonary specialist, noted that he reviewed the serial chest films dating from March 1995 to January 2000. He indicated since 1997 they had shown significant cardiomegaly and episodes of congestive heart failure with resolution. No pleural effusion or pulmonary parenchymal densities were noted. Recent films noted a pacemaker. The January 2000 CT scan of the chest showed a noncalcified pleural plague along the lower left lateral chest wall, but no evidence of pulmonary parenchymal disease. Dr. V also reviewed the October 1995 and August 1998 pulmonary function tests. Dr. V wrote the following: Based on the clinical history, physical examination, review of the serial chest X-rays, pulmonary function tests and CT scan of the chest, this patient appears to have ischemic cardiomyopathy with chronic angina and congestive heart failure and has been stable clinically in recent years. There is evidence of mild obstructive lung disease in serial pulmonary function studies, probably related to cigarette smoking, but also may have a contribution from congestive heart failure. There is no evidence of asbestosis from review of the chest X- rays, CT scan and the pulmonary function tests. There is evidence of a noncalcified left pleural plague suggestive of prior asbestos exposure. In July 2000 the RO granted service connection for a noncalcified left pleural plague and assigned a noncompensable rating. The veteran was issued a supplemental statement of the case in July 2000. The veteran submitted a notice of disagreement with the noncompensable rating assigned for the noncalcified pleural plague in August 2000. The veteran requested treatment at the VA in July 2000 for increased shortness of breath. Examination noted good air movement with bilateral crackles greater on the left than the right. The veteran was admitted to the hospital. A chest CT showed no pulmonary embolism, but some calcification. The pulmonary vasculature appeared well opacified without any filling defect such as thrombus. There were diffuse emphysematous changes noted throughout the lung. There were no nodules or masses appreciated. There was no pleural effusion but the heart appeared enlarged. Records from Mesa Lutheran Hospital reveal that a lung biopsy was conducted in December 2000, which included samples of tissue from the veteran's left lower lobe. The Surgical Pathology Report reveals that an asbestos body was identified that was consistent with asbestosis. On microscopic examination, it was reported that "[n]o asbestos bodies are identified", however, "iron stains [revealed] the presence of a single ferruginous body morphologically consistent with an asbestos body." The pathologist also reported benign lung parenchyma and bronchial mucosa. The microscopic examination did not identify significant fibrosis in the interstitium of the lung parenchyma. January 2001 records from the veteran's private physician include impressions of asbestosis, hemoptysis, chronic obstructive pulmonary disease, cor pulmonale, acute bronchitis, chronic bronchitis and coronary artery disease. The veteran appeared with his spouse, and a friend at a hearing before the undersigned Member of the Board in January 2001. The veteran offered testimony as to the nature and circumstances of his exposure to asbestos while in the service. (T-5). The veteran stated he passed out in service in April of March 1945 and asserted it was related to his problems with his heart and lungs. The veteran stated he had dug coal on his own property. (T-8). He related being told his lung capacity was decreased in 1979 and that he was told it was restrictive disease. (T-9). The veteran was being treated by private physicians, Dr. R and Dr. N. The veteran and his representative disputed the contention that the veteran's shortness of breath was secondary to congestive heart failure. (T-9, 10). The veteran's friend, JK, testified he had known the veteran since 1995. He had noticed the veteran's breathing decreased more and more. The veteran first noticed breathing problems probably within five years after he got out of service. (T-13). The veteran submitted a statement in February 2001 from Dr. N., his internist He reported the veteran's history of open heart surgery. He stated the veteran has ischemic cardiomyopathy. In Dr. N's opinion the veteran with medication should not be as short of breath as he appeared to be. He noted there was documentation by pathology report of asbestos nodules. He reiterated the veteran did have cardiomyopathy, but it was not to the point of his being hospitalized or being complete cardiac cripple. His shortness of breath was not completely secondary to his cardiac problem. In November 2001 the Board requested an opinion from a pulmonary physician at a VA hospital. Following a review of the relevant evidence in the claims file, the pulmonary specialist noted, in pertinent part, that the veteran was exposed to asbestos on a daily basis during his service between 1944 and 1946 and had been followed at various VA hospitals and by private physicians since 1977 for multiple medical problems. It was noted the veteran had significant ischemic heart disease with a left ventricular ejection fraction of about 25%, and a history of multiple myocardial infarctions and CABG times two, the last one in 1992. Had a transvenous permanent pacemaker placed in 1999 for bradyarrhthmias and is on anticoagulation for a mural thrombus, along with hypertension and hypercholesterolemia. It was further noted that the veteran had no other history of asbestos exposure since discharge from the Navy, and was a smoker of 35-40 pack years, which he discontinued in 1979. The VA pulmonary specialist continued with the pertinent history as follows: Patient has reports of multiple chest radiograms in the record. A chest film in 1990 was reported to be normal. Then he underwent CABG second time in 1992 and had a chest tube placed on the left side, since then the reports of the chest films indicate presence of "fibrotic changes" and "possible calcification" of the pleura on the left side around the area of the sixth rib. CT scan of the chest done in January 2000, showed the noncalcified pleural plaque along the lower left lateral chest and no evidence of pulmonary parenchymal disease. There is no pleural thickening or calcification on the right side as per the reports. All of these points indicate that the pleural changes are likely to be secondary to the heart surgeries and chest tube placement on the left side. Pulmonary function tests done at VAMC Phoenix in 1995 showed mild obstructive impairment with minimal decrease in carbon monoxide diffusing capacity. Pulmonary function tests done at VAMC Phoenix in 1997 showed mild air flow limitation, hyperinflation and air trapping, and significant decrease in carbon monoxide diffusing capacity. Pulmonary function tests done at VAMC Phoenix in 1999 was a poor quality test and showed mild obstruction, worsening hyperinflation in air trapping and no change in carbon monoxide diffusing capacity. The change in the diffusing capacity could be secondary to chronic CHF that has been getting worse progressively and also secondary to the anemia, which has worsened over the past few years. Diffusing capacity has not been corrected to the hemoglobin. Lung biopsy done December of 2000 showed "benign lung parenchymal and bronchus". Also found to have one "ferruginous body" and "no significant fibrosis is identified in the interstitium of the lung parenchyma". The VA pulmonary specialist explained in March 2002 that asbestosis is defined as a fibrotic condition of the lung parenchyma that develops several years after a significant exposure to the asbestos fibers. After noting the criteria for a diagnosis, the physician opined that it was not likely that the veteran has asbestosis. While the veteran has a suitable history of asbestos exposure, the medical evidence does not indicate that he has significant fibrosis of the lung. It is likely that the veteran's problems are related to his cardiac disease and unlikely to be secondary to the asbestosis for the reasons that are given above in the summary of his medical records. It was noted that the presence of a single or of multiple Ferruginous bodies does not denote asbestosis. Ferruginous bodies can be present in the normal lungs of urban dwellers in North America and Europe. As far as is known at the present time, ferruginous bodies are unassociated with any other clinical manifestations of asbestos exposure. The veteran has pleural thickening in the left lower thorax, the most likely cause of which could be the multiple cardiac surgeries and insertion of chest tube in the past. It is unlikely that the single pleural plaque in the veteran was caused by his exposure to asbestos. Pleural plaques are almost always benign, do not interfere with lung function, and do not cause. symptoms. The lung function impairment noticed in the veteran between 1995 and 1997 is more consistent with increased air trapping with hyperinflation than with any asbestos related pathology. The low DLCO is less likely to be from any asbestos-related pathology than from left ventricular failure, possible scar tissue secondary to pneumonia he was treated for during this time, and anemia. The VA pulmonary specialist further noted in March 2002 that asbestos exposure has not been proven to cause acute or chronic bronchitis, nor has it been proven to cause COPD. The etiology of the veteran's COPD is most likely secondary to smoking. In addressing the veteran's service-connected pleural plaque, it was noted that such was not known to worsen asbestosis or asbestos-related lung disease. The physician opined that it is not at all likely that the veteran's pleural plaque caused or aggravated any asbestosis or asbestos-related lung disease. Finally, it was noted that benign asbestos pleural plaques or any other kinds of pleural plaques are not known to contribute in the etiology of cor pulmonale. After receiving Dr. D's Memorandum, the Board, in accordance with Thurber v. Brown, 5 Vet. App. 119 (1993), informed the appellant's representative in a March 14, 2002, letter of the additional evidence, and provided an opportunity to respond. The appellant responded in May 2002 and submitted a letter from Dr. R. dated in May 2002, and a letter dated in May 2002 from Dr. C, the Chief of the Pulmonary Section of the Southern Arizona VA Health Care System with a Medline Search attached, and a VA home oxygen therapy prescription dated in February 2002. The letter from Dr. R reads as follows: (The veteran) is a very pleasant 75-year old white male who suffers from COPD. He has been my patient since June of 2000, who had quite a bit of exposure to asbestos when he was in the service. Patient was apparently in the service from December of 1944 to October of 1945 at which time he served on the U.S.S. Roy O. Hale. Patient states that he was exposed to asbestos while on the ship for a year or so. He states that the asbestos dust was noticed coming from the insulation. Patient also does have a smoking history, probably a 40-pack year smoking history. I viewed the letter from R.F. Williams and also from Dr. N. Danamudi. In this letter, it states that patient did have asbestos exposure, however they feel that the patient does not have asbestosis and that this is not causing his severe shortness of breath. I have been in practice for about 17 years and I have done thousands of lung biopsies. Even on patients that have had a long history of asbestosis and were found to, have mesothelioma, I have never had a biopsy that came back with an asbestosis body identified or even the presence of a ferruginous body in all of these thousands of biopsies. In (the veteran's) biopsy, it had to be done very, fast so there was very small sampling of the biopsy and this may be why the patient did not have any pulmonary fibrosis on the biopsy. At any rate, patient does have other underlying problems, such as COPD, cor pulmonale as well as cardiomyopathy presently. I do however feel that patient did have the exposure to the asbestos and feel that some of his disability is a direct result of his exposure to the asbestosis. Because of this, I feel that the patient should be given consideration and should at least get some help from the VA system. The letter from Dr. C reads as follows: (The veteran) has a significant exposure to asbestos while in the military. He had a lung biopsy showing an asbestos body (also call a ferruginous body.) He had a CT scan of his lungs in July 2000. The report of this CT scan does not mention asbestos-associated abnormalities. However he has bilateral pleural thickening which is consistent with asbestos pleural disease. Although his pleural disease may not be related to asbestos, and although asbestos bodies are found in otherwise normal persons, I cannot prove that he does not have asbestos related pleural disease. Asbestos pleural disease is known to be associated with decreases in pulmonary function and significant asbestos exposure is associated with a multitude of illnesses many of which he has. Although I would not state that it is highly probable that his shortness of breath, chest pain or other medical problems are caused by asbestos, I would like to point out it is probably that asbestosis is playing a role in his disabilities. Enclosed are some references and abstracts related to asbestos. The veteran also submitted a February 2002 prescription for home oxygen therapy. The prescription stated the veteran had been prescribed oxygen for the following conditions: bronchial asthma/chronic obstructive pulmonary disease (COPD)/ cor pulmonale/pulmonary hypertension/sleep apnea/exercise related hyperoxemia. Relevant Laws and Regulations. Service connection may 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 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (2001). The VA General Counsel in VAOPGPREC 4-2000 held that Paragraph 7.21a., b., c., and d.(3) of the Veterans Benefits Administration Adjudication Procedure Manual (M21-1), Part VI, and the fourth and fifth sentences of paragraph 7.21d. (1) of that manual are not substantive in nature. However, relevant factors discussed in paragraphs 7.21a., b., c., must be considered and addressed by the Board in assessing the evidence regarding asbestos-related claims in order to fulfill the obligation under 38 U.S.C.A. § 71049d) (1) to provide an adequate statement of the reasons and bases for a decision. Rating specialists must determine whether or not military records demonstrate evidence of asbestos exposure in service. In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2. However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Veterans Benefits Administration Adjudication Procedure Manual (M21-1), Part VI, 7.21d.(2) provides that asbestosis, pleural effusions and fibrosis, and pleural plaques are rated analogous to silicosis. The General Rating Formula for Interstitial Lung disease (including silicosis) (diagnostic codes 6825 through 6833) is as follows: a 100 percent rating is provided when Forced Vital Capacity (FVC) is less than 50 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is less than 40 percent predicted, or; maximum exercise capacity is less than 15 milliliters(ml)/kilograms (kg)/per minute (min) oxygen consumption with cardiorespiratory limitation, or, cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent rating is provided with FVC of 50 to 64 percent predicted, or DLCO (SB) of 40 to 55 percent predicted or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 30 percent rating is provided with FVC of 65 to 74 percent predicted, or DLC (SB) of 56 to 65 percent predicted. A 10 percent rating is provided with FVC of 75 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6832 (2001). I. Service Connection for Asbestosis Analysis. As a threshold matter the Board must address the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection for asbestosis. Since the May 1991 unappealed RO decision the veteran has submitted medical evidence that includes a diagnosis of asbestosis. Previously there was no medical evidence of a diagnosis of asbestosis. The competent evidence of a diagnosis of the disability at issue is obviously new and relevant to the issue of service connection for asbestosis. The Federal Circuit has clearly stated that new and material evidence does not have be of such weight as to change the outcome of the prior decision. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). It is only necessary that the evidence be so significant that it must be considered in order to fairly decide the merits of the claim. The evidence submitted since the RO previously denied the claim is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Therefore, the veteran's claim for service connection for lung disease, to include asbestosis is reopened. After the RO reopened the veteran's claim it proceeded to adjudicate the issue of service connection for a pulmonary disorder related to exposure to asbestos in service on the merits. As the issue has been previously considered by the RO in the July 2000 rating decision and the veteran has been given an opportunity to present evidence and argument there is no prejudice in the Board proceeding to consider the issue of service connection for a pulmonary disorder, to include as due to exposure to asbestos. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service medical records show no lung disease. Variously diagnosed lung disorders, to include asbestosis, appear in the post-service medical evidence beginning in the late 1970s. The veteran asserts that he has asbestosis and chronic obstructive pulmonary disease which were caused by his exposure to asbestos in service. The medical evidence and opinions that have addressed the questions of diagnosis and causation in this case are conflicting in nature. As explained below, the Board finds that the evidence is in relative equipoise as to whether the veteran has asbestosis due to exposure to exposure to asbestosis during service. Under such circumstances, reasonable doubt is resolved in the veteran's favor. Following the procedures outlined in VA General Counsel in VAOPGPREC 4-2000 held that Paragraph 7.21a., b., c., and d.(3) of the Veterans Benefits Administration Adjudication Procedure Manual (M21-1), Part VI, and the fourth and fifth sentences of paragraph 7.21d. (1) the Board must consider whether or not the military record demonstrates exposure to asbestos in service. The veteran's separation papers indicate he served aboard ship. In Dyment v. West, 13 Vet. App. 141 (1999) the Court held that neither the Manual nor the Circular created a presumption of exposure to asbestos solely from shipboard service. They are guidelines that direct raters to develop the record, ascertain whether there is evidence of exposure before, during, or after service and determine whether the disease is related to putative exposure. See also Ennis v. Brown, 4 Vet. App. 523 (1993). The veteran has reported that as part of his duties he repaired and replaced pipes covered with asbestos. That is consistent with the veteran's Notice of Separation from Service that reveals he was a machinist mate. The statement of the veteran's Captain confirmed the asbestos insulation and damage suffered by the ship at the time of his service. Subsequent to his separation from the service the veteran worked in the plastering trade, as a truck driver and repaired vending machines. The Board has concluded the veteran was exposed to asbestos in service. The medical evidence of record is conflicting as to whether the diagnostic criteria are met for a diagnosis of asbestosis. In April 1992 the first notation of asbestosis appears in VA records. In April 1994 VA records included an assessment of asbestosis. While there were no reports of X- rays, a CT scan or any other basis noted for the assessment, in 1995 VA examiners began to routinely include an assessment of possible pulmonary asbestosis, although in July 1996 a physician in a VA pulmonary clinic concluded that the veteran's shortness of breath was due to a combination of congestive heart failure, obesity and some component of COPD. A VA examination in November 1997 found no evidence of pleural or parenchymal disease. The examiner's opinion was there was no evidence of asbestos disease. Based on the veteran's history of smoking and coronary artery disease he related the veteran's symptoms to those disorders and not to asbestosis. The September 1998 medical statements from Dr. N. are not consistent with laboratory evidence of record and a VA physician in April 1999 again stated his opinion that the veteran did not have findings consistent with asbestosis. He ordered and reviewed a CT scan and pulmonary function tests, which he reviewed after taking the veteran's history and examining the veteran. He explained the veteran had evidence of true chronic obstructive pulmonary disease rather than restrictive disease. A second VA examination in January 2000 included a review of X-rays, CT scan and pulmonary function tests and the conclusion was that there was no evidence of asbestosis. In addition Dr. V provided an opinion as to the etiology of the veteran's his mild obstructive lung disease, as due to cigarette smoking and some contribution from congestive heart failure. Finally, the Memorandum prepared by Dr. D in March 200, who is a pulmonary specialist and reviewed the claims folder, includes an opinion that the veteran did not have asbestosis to the absence of significant fibrosis of the lung. Dr. D explained that the lung impairment demonstrated on pulmonary function tests was related to increased air trapping with hyperinflation rather than any asbestos related pathology. Thus there is ample competent evidence that the veteran does not have asbestosis or any other asbestos related pulmonary disorder. However, there is a difference of opinion in the record as to whether or not the December 2000 findings of the Surgical Pathology Report support a diagnosis of asbestosis. The veteran's private pulmonary physician, Dr. R, based a diagnosis of asbestosis on the presence of a ferruginous body found on lung biopsy. Dr. C opined in May 2002 that asbestos played a causative role in the veteran's lung disease. The latter physician noted that the veteran has a history of pleural thickening and attached a copy of abstracts of several articles related to asbestos, which includes a discussion of asbestos related diffuse pleural thickening. Also, the veteran has presented evidence from his treating physicians, Dr. R and Dr. N., who both opined that the veteran has asbestosis due to in-service exposure to asbestosis. Drs. R and N provided a rationale for their opinions and the latter physician included references and abstracts related to asbestos. The veteran was exposed to asbestos while serving as a machinist mate during service, and the Board finds that the evidence is in relative equipoise as to whether the veteran has asbestosis due to his in-service exposure to asbestos. Resolving the reasonable doubt raised by such evidence in the veteran's favor, the Board finds that service connection for asbestosis is warranted. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (2001). As to the question of service connection for a lung disorder other than asbestosis, the memorandum of Dr. D. provided a sound rationale, with citation to the clinical and laboratory evidence of record, for his opinion that the veteran's other lung diseases, to include COPD, were not related to asbestos exposure. Other VA physicians have indicated similar opinions. The private medical opinions discussed above focus on the question of asbestosis; there is little if any competent evidence that favors a claim that a lung disorder other than asbestosis is due to any incident of service. The Board finds that Dr. D's opinion is the most probative evidence on this question because, in addition to his rationale, he reviewed the claims file and cited specific clinical and laboratory reports of record in support of his decision. As the overwhelming evidence is against the claim of service connection for a lung disorder other than asbestosis, this aspect of the veteran's claim must be denied. Id. The Board is cognizant of the fact that, as the result of this decision, the veteran has service and nonservice- connected lung diseases. The question of what degree of impairment is due to asbestosis versus, for example, COPD is a rating question that must be addressed by the RO. See Waddell v. Brown, 5 Vet. App. 454 (1993). The relevant question before the Board at this time is whether the veteran has any (emphasis added) lung impairment that can be attributed to asbestosis. For the aforementioned reasons, the Board finds that some component of the veteran's overall lung impairment is due to in-service asbestos exposure. A compensable rating for a noncalcified pleural plaque The veteran is also seeking a compensable rating for a noncalcified pleural plaque. The claim is an original claim for a compensable rating and as such Fenderson v. West, 12 Vet. App. 119 (1999) applies. The Board reviewed the record for evidence indicating the veteran's service connected noncalcified pleural plaque caused respiratory impairment. In August 1996 VA records revealed shortness of breath that was attributed to multiple factors. A combination of coronary artery disease and chronic obstructive heart disease was related to his shortness of breath. In November 1997 the pulmonary function tests revealed decreased capacity that was consistent with emphysematous component of his obstructive disease. The left pleural calcification was first noted in June 1998. The April 1999 VA examination report included a pulmonary function test, but there is no reference to the impairment shown being related to the pleural plaque. In the January 2000 VA examination report it was recorded that the veteran had supplemental oxygen therapy prescribed by his private cardiologist. The VA examiner reviewed the pulmonary function tests of October 1995 and August 1998 but did not address whether any impairment was due to the pleural plaque. There are only two medical records that address the issue of whether or not the noncalcified pleural plaque has caused respiratory impairment. They are the Memorandum prepared by Dr. D and the letter of May 2002 written by Dr. C. Dr. D has stated unequivocally that pleural plaques do not interfere with lung function and do not cause symptoms. He goes farther and relates the veteran's lung function impairment seen between 1995 and 1997 as more consistent with increased air trapping with hyperinflation. He also indicated the low DLCO is more likely to be related to left ventricular failure, possible scar tissue secondary to pneumonia and anemia. In his May 2002 letter Dr. C says that asbestos pleural disease is known to be associated with decreases in pulmonary function. He did not specifically indicate that pleural plaques cause impairment. The Board has also considered the statement of Dr. N dated in February 2001. He asserted that the veteran's shortness of breath was not solely related to his cardiomyopathy. The Board concurs. The record clearly demonstrates the veteran's pulmonary impairment includes a component of chronic obstructive pulmonary disease and obesity. The overwhelming preponderance of the evidence shows that the veteran's service-connected non-calcified pleural plaque is asymptomatic and not productive of any functional impairment during the entire period of time in question. Fendersion, supra. Accordingly, the assignment of a compensable rating for the noncalcified pleural plaque is not warranted. As the preponderance of the evidence is against the claim for the assignment of a compensable rating for the noncalcified pleural plaque, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for asbestosis is granted. Service connection for a lung disorder other than asbestosis is denied. A compensable rating for a noncalcified pleural plaque is denied. R. F. Williams 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.