Citation Nr: 0407300 Decision Date: 03/19/04 Archive Date: 03/30/04 DOCKET NO. 00-19 775 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active duty for training (ACDUTRA) from July to December 1964, and active service from November 1990 to June 1991. This appeal arises from a June 2000 rating action that denied service connection for asbestosis. A Notice of Disagreement was received in July 2000, and a Statement of the Case (SOC) was issued in August 2000. A Substantive Appeal was received in September 2000. In April 2001, the Board of Veterans' Appeals (Board) remanded this case to the RO for further development of the evidence and for due process development. A Supplemental SOC (SSOC) was issued in August 2003, reflecting the RO's continued the denial of service connection. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Asbestosis was first manifested many years post service, and the competent medical evidence of record establishes that there is no nexus between such disorder and any incident of the veteran's military service. CONCLUSION OF LAW The criteria for service connection for asbestosis have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2003)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Having considered the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. In the September and October 1999 RO letters, June 2000 rating action, the August 2000 SOC, the April 2001 Board Remand, the May 2001 RO letter, and the August 2003 SSOC, the veteran and his representative were variously notified of the law and regulations governing entitlement to the benefit on appeal, the evidence that would substantiate his claim, and the evidence that had been considered in connection with his appeal. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit information and evidence. Additionally, the Board notes that in the October 1999 and May 2001 RO letters, the veteran was variously informed of what the evidence had to show to establish entitlement to the benefit he sought; what information or evidence the VA still needed from him; what evidence the VA had retrieved and considered in his claims; what evidence he had to furnish; what he had to do to obtain assistance from the VA in connection with his appeal; that the VA would make reasonable efforts to help him get evidence necessary to support his claim, such as medical records, if he gave it enough information about such records so that it could request them from the person or agency that had them; and that he should submit any evidence that he had. In addition, the May 2001 RO letter specifically informed the appellant of the VCAA and its requirements, and notified him that he could help with his claim by informing the VA of any additional information or evidence that he wanted it to try to obtain for him, where to send additional evidence or information concerning his appeal, and where he could request assistance if needed. Accordingly, the Board finds that the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by the claimant and what evidence will be retrieved by the VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board points out that, in the recent decision of Pelegrini v. Principi, 17 Vet. App. 412 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a claimant of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by the VA that the claimant provide any evidence in his possession that pertains to the claim. As explained above, all of these requirements have been met in the instant case. However, Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after" the VA receives a complete or substantially-complete application for VA benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such a pre-adjudication notice was not prejudicial to the claimant. See 38 U.S.C.A § 7261(b) (West 2002) (providing that, in making determinations under that statute, the Court shall take due account of the rule of prejudicial error.). In the case now before the Board, documents meeting some of the VCAA's notice requirements were provided both before and after the June 2000 rating action on appeal. However, the Board finds that any lack of pre-adjudication notice in this case has not prejudiced the veteran in any way. As indicated above, the RO sent the veteran a letter explaining what was needed to substantiate a claim for disability resulting from exposure to asbestos in early October 1999, some weeks after receiving his claim for service connection in mid-September 1999 and prior to the June 2000 rating action on appeal. The veteran responded with additional important information in mid-October 1999, which the RO took into account at the time of its June 2000 determination. A SOC was issued in early August 2000, less than two months after the veteran was notified in late June 2000 of the rating action on appeal; the veteran and his representative were thereafter afforded an opportunity to respond. Moreover, after the RO specifically notified the veteran and his representative of the VCAA and its requirements in the May 2001 letter, the RO did not again adjudicate the claim until August 2003 (as reflected in the SSOC), well after the 1-year period for response to such a notice letter. See 38 U.S.C.A. § 5103(b)(1). As noted above, in May 2002 the veteran stated that he had no additional medical evidence to submit, and in February 2004 his representative stated that he had no further argument or evidence to submit. Hence, the Board finds that any failure on the part of the VA in not fulfilling all VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F. 3d 532, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2003). The Board also finds that all necessary development has been accomplished. The RO has made comprehensive efforts to assist the appellant in obtaining evidence necessary to substantiate his claim, as documented in RO letters of September and October 1999, October 2000, May 2001, March, June, August, and October 2002, February, July, and August 2003, and January 2004. The RO has obtained extensive VA medical records through April 2003, and medical records underlying determinations of the Social Security Administration and the U.S. Railroad Retirement Board in connection with the veteran's applications for disability benefits, all of which has been associated with the claims file. The veteran was afforded comprehensive VA examinations in October 1999 and March 2003 (with an April 2003 addendum). An August 2003 VA Contact Report reflects that the RO's July and August 2003 efforts to obtain a post-September 1999 VA radiological addendum report produced negative results; the pertinent VA medical facility performed a search for the document, but no such addendum report was found. Significantly, neither the veteran nor his representative has identified, and the claims file does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In a statement of May 2002, the veteran stated that he had no additional medical evidence to submit. In a statement of February 2004, the veteran's representative stated that he had no further argument or evidence to submit. Under these circumstances, the Board finds that adjudication of the claim for service connection for asbestosis at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the veteran. The claim is ready to be considered on the merits. II. Background The service medical, personnel, and administrative records from both the period of active service and ACDUTRA are completely negative for findings or diagnoses of asbestosis or evidence of the veteran's exposure to asbestos. In an undated Asbestos Survey Questionnaire completed by the veteran sometime during his military service for the purpose of assessing the number of personnel potentially exposed to asbestos, he stated that he had held a "CM" rating but denied (a) ever supervising the work of a lagging or ripping crew by remaining in the compartment where the work was accomplished for an extended period of time; (b) ever working as a member of an asbestos lagging or ripping crew; and (c) entering a compartment where an asbestos lagging or ripping operation was in progress. He stated that he had been exposed to operations involving asbestos materials during his employment career. Numerous military medical records and examination reports during the veteran's period of Reserve service dated from 1981 to 1993 are also completely negative for findings or diagnoses of asbestosis or evidence of his exposure to asbestos. Post service, a June 1987 report of chest X-rays by W. Rosner, M.D., was normal, without evidence of asbestos- related pulmonary or pleural disease. On November 1997 examination by J. Scutero, M.D., the veteran gave an employment history of frequent exposure to asbestos while working with a railroad from 1966 to 1991. One source of exposure was while working as a machinist on a wheel trueing machine, wherein much dust was created from brakes made of asbestos. During the course of his employment with the railroad, he also repaired damage to steam boilers on diesel engines, wherein he had to remove insulation made of asbestos, and also worked in areas where there was a great deal of asbestos on pipes. The veteran did not relate any history of inservice asbestos exposure. On current examination, pulmonary function tests were normal. Chest X-rays showed increased markings at both bases consistent with pulmonary fibrosis with bilateral pleural plaquing along the lateral chest wall. Based on the veteran's history of asbestos exposure and chest X-ray findings, Dr. Scutero opined that he had asbestosis. On October 1999 VA respiratory examination, the veteran gave a 30-year employment history as a railroad machinist, which job he had to quit because his asbestosis was interfering with his ability to work and making him ill. He speculated that exposure to asbestos might have occurred during military service in the Persian Gulf War, when he participated in the demolition of buildings that might have contained asbestos. The examiner noted that he had reviewed Dr. Rosner's 1997 examination report wherein the veteran gave a history of exposure to asbestos during the course of his employment with the railroad. The veteran further stated that he was never given any precautionary measures to decrease the possibility of inhaling asbestos compounds. After current examination, the diagnosis was asbestos disease of the lungs producing symptomatology that has rendered the veteran disabled for maintaining full-time gainful employment. On March 2003 VA respiratory examination, the examiner reviewed the claims file in depth. He noted that an undated military Asbestos Survey Questionnaire completed by the veteran indicated that he had been exposed to operations involving asbestos materials during his employment career, but that no details were given regarding this exposure. He also noted that multiple examinations of the veteran performed during Reserve service dated from 1981 to 1993 were negative for pulmonary complaints or findings. The doctor described a conflicting history of potential asbestos exposure while the veteran was employed by the railroad, noting that Dr. Scutero in 1997 described significant asbestos exposure, but that the veteran currently disagreed with this information, now claiming potential asbestos exposure during active military service during the Persian Gulf War from November 1990 to May 1991, when he was stationed near a construction site where old buildings were being demolished and dust created. The doctor further commented that the veteran was non-specific, vague, and tangential in giving this military history. The examiner also noted that private pulmonary function tests and chest X- rays were normal in 1987, after over 20 years of working for the railroad; that Dr. Scutero was the first physician to diagnose asbestosis in 1997; and that September 1999 VA chest X-rays were reported to be within normal limits. After current examination, the impression was pulmonary disorder of unspecified cause, and further diagnostic tests were scheduled. In an April 2003 addendum to his March 2003 VA examination report, the examiner reviewed current chest X-ray and CT scan findings. He commented that the veteran's potential exposure to asbestos in the military was brief in duration and of modest intensity at most, and that the time course of onset of clinical symptoms or radiographic findings of asbestosis following exposure was 20 to 30 years. Therefore, he opined that it was not as likely as not (a) that any symptoms or findings related to asbestos exposure in the military would be significantly evident at this time, and (b) that any pulmonary disability resulting from asbestos exposure was related to exposure to asbestos material in the military. Rather, based on the time course and duration of exposure, the physician opined that it was more likely than not that the veteran's current pulmonary disability was related to asbestos exposure while working for the railroad. III. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that there is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations for those types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21- 1"). In addition, a recent opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on inservice asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for asbestosis under the established administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (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 DVB Circular and discussed the RO's compliance with the its claim-development procedures). With these claims, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). In this case, the veteran claims service connection for asbestosis that is related to his military service during the Persian Gulf War. However, the Board notes that there are no clinical findings of asbestosis, or even evidence of exposure to asbestos, during that period of service. Neither is there any competent and probative evidence of a nexus between any currently-diagnosed asbestosis and any incident of the veteran's military service during the pertinent time period. The only competent evidence that addresses the question of a medical relationship between the veteran's current asbestosis and his military service consists of Dr. Scutero's 1997 examination report and the April 2003 VA medical opinion, and it squarely militates against the claim for service connection. As noted above, in November 1997 Dr. Scutero opined that the veteran had asbestosis that was related to his employment with the railroad, and in April 2003 a VA physician opined that it was more likely than not that the veteran's current pulmonary disability was related to asbestos exposure while working for the railroad. Significantly, the veteran has neither presented nor alluded to the existence of any other medical opinion to support his claim. The Board also notes that, in arriving at his opinion, the 2003 VA physician properly considered the factors contained in DVB Circular 21-88-8 and M21-1. Moreover, the Board is satisfied that the RO has complied with its claim-development procedures, and considered whether military records demonstrated evidence of asbestos exposure during service; developed whether there was pre-service and/or post-service occupational or other asbestos exposure; and determined whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. The Board has considered the veteran's assertions in connection with the claim on appeal. However, as a layman without appropriate medical training and expertise, he is not competent to render a probative opinion on a medical matter- such as whether there is a medical relationship between a current clinical disorder and a claimed incident of his military service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). In the absence of medical evidence of any exposure to asbestos, or asbestosis itself, in service or for many years thereafter, and in view of the competent medical evidence ruling out a relationship between the veteran's currently- diagnosed asbestosis and his military service, the Board finds that the claim for service connection asbestosis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable to this appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for asbestosis is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2