Citation Nr: 0218056 Decision Date: 12/13/02 Archive Date: 12/18/02 DOCKET NO. 02-03 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a lung disease secondary to inservice exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from February 1965 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. There is no competent medical evidence of record linking the veteran's diagnosed chronic obstructive pulmonary disease (COPD) to his service or any incident therein. CONCLUSION OF LAW COPD was not incurred in or aggravated by military service or inservice exposure to asbestos or any other incident therein. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 1991 & West Supp. 2001); 38 C.F.R. §§ 3.102, 3.303 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and implementing regulations essentially provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. The RO notified the appellant of the new law in a June 2001 letter and in the statement of the case issued in March 2002. He has been sent other letters and information concerning evidence needed to support his claim. There is no indication that there is any additional evidence that could be obtained that would be helpful in substantiating this claim. Because no additional evidence has been identified by the appellant as being available but absent from the record, the Board finds that any failure on the part of VA to further notify him what evidence would be secured by VA and what evidence would be secured by him is harmless. Cf. Quartuccio v. Principi, No. 01-997 (U.S. Vet. App. June 19, 2002). Factual Background The veteran's service personnel records reveal that he served aboard the USS Shenandoah (AD-26). His military occupational specialty was boiler tender. His service medical records are silent for any respiratory complaints, findings, treatment or diagnoses. VA treatment records, dating from March 2001 to April 2002, generally show that the veteran gave a history of having emphysema and reported smoking one pack of cigarettes a day. A March 2001 treatment record noted that he was a 50 pack/year smoker. He was advised to stop smoking. The assessment was COPD related to cigarette smoking. Ongoing treatment records indicate he continued to smoke and assessments of COPD. In January 2002, VA received a response from the Navy Medical Liaison regarding an inquiry as to the likelihood that the veteran was exposed to asbestos in service. Although it could not be determined to what extent he was exposed to asbestos, the response stated it was highly probable that he was exposed. The response indicates that the veteran's occupation aboard ship was fireman. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (2002). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (specifically addressing claims based ionizing radiation exposure). There is no specific statutory or regulatory criteria governing claims for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, VA has provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1 (M21-1), Part VI, Par. 7.21. The VA General Counsel has held that these M21-1 guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000. Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1, Part VI, Par. 7.21(b). This information provides that inhalation of asbestos fibers can produce pleural effusion, fibrosis and pleural plaques. The latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Veterans Benefits Administration Manual M21-1, part VI, paragraph 7.21(a)(1). The medical evidence shows that COPD was diagnosed almost forty years after the veteran's discharge from service. Although the evidence indicates he was exposed to asbestos in service, the record contains no medical opinion suggesting that his COPD is etiologically related to his inservice exposure to asbestos. In fact, March 2001 VA treatment records etiologically link his diagnosed COPD to his cigarette smoking. Although the veteran asserts he currently has a respiratory disease as a result of his inservice exposure to asbestos, he is not competent to provide evidence that requires medical knowledge. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, the claim for service connection for a respiratory disease must be denied. ORDER Service connection for a respiratory disease, to include COPD, is denied. RENÉE M. PELLETIER 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.