Citation Nr: 0421405 Decision Date: 08/04/04 Archive Date: 08/09/04 DOCKET NO. 02-08 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), also claimed as a result of exposure to asbestos. 2. Entitlement to service connection for a disability manifested by dizziness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from April 1943 to March 1946 and from January 13, 1950 to February 17, 1950. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that the veteran also appealed the October 2001 rating decision's denial of service connection for residuals of a right hand fracture. However, a subsequent May 2003 rating decision granted service connection for this disability and it is no longer at issue. FINDINGS OF FACT 1. A respiratory disorder, to include COPD, was not shown during service, and is not shown to be related to any incident of service. 2. A chronic disability manifested by dizziness was not shown in active service. 3. The veteran's current disability manifested by dizziness is not shown to be related to service. CONCLUSIONS OF LAW 1. A respiratory disorder, to include 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, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.326 (2003). 2. A disability manifested by dizziness was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he currently has a respiratory disorder and another disability manifested by dizziness as a result of his inservice exposure to turpentine fumes and/or smoke inhalation of burning asbestos. I. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In the present case, the AOJ, in August 2001, provided adequate notice to the veteran regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to submit any evidence in his possession that pertains to the claims. The content of this notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). A subsequent rating decision dated in October 2001 denied service connection for a respiratory disorder, to include COPD, and for a disability manifested by dizziness. The record reflects that the veteran was provided with notice of the October 2001 rating decision from which the current appeal originates. The veteran was provided with a statement of the case in June 2002, and a supplemental statement of the case in May 2003 which notified him of the issues addressed, the evidence considered, the adjudicative action taken, the decisions reached, the pertinent law and regulations, and the reasons and bases for the decisions. In short, the veteran is well aware of the information and evidence necessary to substantiate his claims, he is familiar with the law and regulations pertaining to his claims, he does not dispute any of the material facts pertaining to his claims, and he has not indicated the existence of any outstanding information or evidence relevant to his claims. See Desbrow v. Principi, No. 02-352 (U.S. Vet. App. May 4, 2004); Valiao v. Principi, 17 Vet. App. 229, 232 (2003) (holding that failure to comply with VCAA constitutes nonprejudicial error "[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision"). Based on the procedural history of this case, it is the conclusion of the Board that VA has no outstanding or unmet duty to inform the veteran that any additional information or evidence is needed. The Board concludes that the August 2001 VA letter and the statement of the case and supplemental statements of the case on file informed the veteran of the information and evidence needed to substantiate his claims. Moreover, and as noted above, the August 2001 correspondence notified the veteran as to which evidence would be obtained by him and which evidence would be retrieved by VA, and also suggested that he submit any evidence in his possession. It is clear from submissions by and on behalf of the veteran that he is fully conversant with the legal requirements in this case. With respect to VA's duty to assist the veteran, the Board notes that pertinent medical records from all relevant sources identified by the veteran, and for which he authorized VA to request, were obtained by the RO. 38 U.S.C.A. § 5103A. In this regard the Board notes that the record contains the following pertinent records: service medical records and VA and private treatment records. He has not alleged that there are any outstanding medical records. Moreover, in December 2002, VA requested the deck logs of the USS Sperry A5-12 and the USS Threadfin SS-410. A January 2003 letter from the National Archives and Records Administration indicates that the deck logs of both ships were checked and the alleged incidents were not mentioned. In April 2003, VA received the crew's muster roll for the USS Threadfin SS-410. The Board consequently finds that VA's duty to assist the veteran in obtaining records in connection with the instant appeal has been fulfilled. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of the VCAA or the implementing regulations. Therefore, the veteran has not been prejudiced as a result of the Board proceeding to the merits of the claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Factual Background Service medical records show no relevant complaints, findings, treatment or diagnoses associated with a respiratory disorder or any disability associated with dizziness. The veteran's February 1950 discharge medical examination report shows that examination of his lungs and chest revealed no significant abnormalities. Moreover, a chest X-ray study further revealed no significant abnormalities. Service personnel records show the veteran's military occupational specialty was as an electrician's mate. An August 1977 letter from Robert W. Edmonds, M.D., indicates that the veteran was to be withheld from working about moving equipment because of his worsening positional dizziness. J. R. Sheets, M.D., in a September 1977 letter, notes that he first gave the veteran a physical in September 1973 and that his chief complaint throughout the years was of headaches and dizziness related to a positional vertigo. The physician, although unable to ascertain the origin of the veteran's dizziness, did appear to associate it with either ischemic attacks or his documented hypertensive cardiovascular disease. In September 1993, the veteran was admitted to Sarasota Memorial Hospital for unrelated complaints. At that time, he denied any history of pulmonary cancer, pleurisy, or asthma. Examination revealed his chest was clear to auscultation and percussion. VA treatment records, dating from March 2001 to February 2003, show the veteran complained of a chronic cough in August 2001. A chest X-ray study revealed mildly hyperinflated lung fields. There was no evidence of segmental infiltrates or pleural effusions. The impression was mildly hyperinflated lung fields that could reflect COPD. A June 2002 treatment record notes the veteran had dizziness since his active duty service which caused his disability retirement from the railroad. In a VA Form 21-4138, received in December 2002, the veteran states that he was exposed to turpentine fumes in December 1944 while attached to the USS Sperry. He further states that he was sealed in a compartment containing a galley fire, and thus was exposed to the smoke of burning asbestos while attached to the USS Threadfin SS-410 around January 1946. Based on the information provided, VA attempted to secure the deck logs for the USS Sperry and USS Threadfin. A January 2003 letter from the National Archives and Records Administration, indicates that the deck logs of both the ships named by the veteran showed no evidence of the occurrence either incident claimed by the veteran. In April 2003, the muster roll of the crew of the USS Threadfin SS-410, was associated with the veteran's claims file. The muster roll shows the veteran was attached to the ship in January and March 1946. The veteran's personnel records indicate that he came aboard the USS ThreadFin in August 1945. During his July 2003 videoconference hearing before the undersigned Veterans Law Judge, the veteran testified that he initially served aboard a submarine tender, the USS Sperry. In 1944, while aboard the USS Sperry, he inhaled turpentine fumes in a confined space and had to go topside as a result. He testified that he collapsed when he got topside and that his memory blanked because of the experience. Later, while serving as an electrician aboard the USS "RedFin," [ThreadFin] the veteran was exposed to the smoke from a galley fire. He testified that the fire burned insulation, which included asbestos. III. Analysis A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service, and that the appellant still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or during an applicable presumptive period, if continuity of symptomatology is demonstrated thereafter, or if competent evidence relates the present disorder to that symptomatology. Id. There are no specific statutory or regulatory criteria governing claims of entitlement to service connection 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; 65 Fed. Reg. 33422 (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 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). After carefully reviewing the veteran's claims file, and assuming without conceding that he was exposed to asbestos in service (the evidence does indicate he was attached to the USS ThreadFin), the Board finds that the preponderance of the evidence is against granting entitlement to service connection for a respiratory disorder. Initially, there is no evidence in his service medical records of any complaints, findings, treatment or diagnosis that could be associated with a respiratory disorder. Further, while there is the August 2001 chest X-ray study that first revealed findings consistent with possible COPD, there is no competent medical evidence etiologically linking it to his service, or any incident therein. Although the veteran believes he currently has a respiratory disability as a result of 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 disorder, to include COPD, must be denied. Reviewing the evidence of record, the Board must also find that the preponderance of the evidence is against finding that the veteran's currently diagnosed dizziness or vertigo is directly related to active service or any incident therein. Although the evidence shows that he currently has dizziness and was diagnosed with dizziness as early as 1977, there is no competent medical evidence etiologically linking it to his service, or any incident therein. In this respect, the Board notes that treatment records noting the veteran's history of dizziness since service do not constitute "competent medical evidence" as the information recorded by the medical examiners, is unenhanced by any additional medical comment by those examiners. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Once again, although the veteran asserts he currently has a disability manifested by dizziness as a result of his service or as a result of 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). Therefore, the Board concludes that the veteran's current disability manifested by dizziness was not incurred in or aggravated during active service or any incident therein. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a respiratory disorder, to include COPD, is denied. Service connection for a disability manifested by dizziness is denied. ____________________________________________ DEBORAH W. SINGLETON 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