Citation Nr: 0430489 Decision Date: 11/17/04 Archive Date: 11/29/04 DOCKET NO. 02-15 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include service connection due to exposure to asbestos. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision rendered by the the Department of Veterans Affairs (VA) Regional office in Waco, Texas (the RO). Procedural history The veteran served on active duty from September 1943 to March 1946. In a November 2001 rating decision, the RO denied the veteran's claim of entitlement to service connection for COPD. The veteran appealed that decision and, following issuance of a Statement of the Case, perfected his appeal with the submission of a substantive appeal (VA Form 9) in September 2002. A personal hearing was held before the undersigned Veterans law Judge at the RO in February 2004. A transcript of that hearing is associated with the veteran's claims folder. FINDING OF FACT COPD was not manifested during service, and is not currently shown to be related to an in-service incident or injury. CONCLUSION OF LAW COPD was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking entitlement to service connection for COPD. He specifically alleges that his disability is due to his exposure to asbestos during his military service. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107) (West 2002)]. This law eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)]. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, the VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. The provisions of the VCAA and the implementing regulations are, accordingly, applicable to this case. See Holliday v. Principi, 14 Vet. App. 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of this issue has proceeded in accordance with the provisions of the law and regulations. As stated above, the VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review As alluded to above, the VCAA eliminated the former well groundedness standard. The current standard of review is as follows. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2003). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. Crucially, by two letters to the veteran dated March 1, 2001, with a copy of each to his representative, the Board specifically informed the veteran of what was required of him and what VA would do, satisfying the requirements of 38 U.S.C.A. § 5103 and those later enumerated in Quartuccio. The veteran was informed by means of those letters as to what evidence he was required to provide and what evidence VA would attempt to obtain on his behalf. Those documents explained that VA would obtain government records and would make reasonable efforts to help him get other relevant evidence, such as private medical records, employment records, etc., but that he was responsible for providing sufficient information to VA to identify the custodian of any records. One of these letters specifically set forth the evidence that would assist VA in determining whether his current disability was the product of in-service asbestos exposure. The Board finds that these documents properly notified the veteran and his representative of the information, and medical or lay evidence, that was necessary to substantiate his claim and it properly indicated which portion of that information and evidence was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. The Board notes that even though one of these letters requested that the veteran respond within 30 days and that the other letter requested a response within 60 days, more than one year has expired since he was so notified. The Board also notes that the veteran's claim was reviewed by the RO in August 2002 (as reflected by the Statement of the Case issued in that month), more than one year following the notification in March 2001 of the evidence necessary to substantiate his claim. Moreover, the Veterans Benefits Act of 2003, Pub. L. No. 108- 183, § 107, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § ____), made effective from November 9, 2000, specifically addresses this issue and provides that nothing in 38 U.S.C.A. § 5103 shall be construed to prohibit VA from making a decision on a claim before the expiration of the one-year period referred to in that subsection. The Board finds that the veteran was notified properly of his statutory rights. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of the issue by the RO. In this case, the veteran's claim was initially adjudicated by the RO in November 2001, after the veteran was provided with VCAA notice in March 2001. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2004). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the RO obtained the veteran's service medical records and all available outpatient treatment records. In addition, the veteran was accorded a VA examination in October 2001, the report of which has been associated with his claims file. During his his personal hearing in February 2004, the veteran indicated that there were pertinent records that he would submit to VA. However, no additional evidence was thereafter forwarded to VA, notwithstanding the fact that the record was held open for 60 days by the undersigned for that purpose. In brief, there is no indication that there exists any evidence that has a bearing on this case that has not been obtained. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. The veteran was informed of his right to a hearing and was presented several options for presenting personal testimony. He was accorded a hearing before the Board at the RO in February 2004, per his request. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2004). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the law. Under these circumstances, the Board can identify no further development that would avail the veteran or aid the Board's inquiry. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, the Board will proceed to a decision on the merits. Pertinent Law and Regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active wartime military service. 38 U.S.C.A. § 1110 (West 2002). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2004); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). The resolution of issues pertinent to a determination of entitlement to service connection must be considered on the basis of the places, types, and circumstances of service as shown by service records, the official history of each organization in which the veteran served, and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2004); see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M-21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The guidelines provide that the latency period for asbestos- related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, U.S. Navy veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). The United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that M21-1, Part VI, § 7.68(b)(2) does not create a presumption of exposure to asbestos for any class of veterans. Rather, M21- 1 suggests that asbestos exposure is a fact to be determined from the evidence. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2003). Analysis The medical evidence demonstrates that a pulmonary disorder, diagnosed as COPD, is currently manifested. Private medical records dated in 1995 and thereafter show that the veteran was accorded treatment for this disability. Likewise, the report of an October 2001 VA examination indicates an impression of COPD. The Board, accordingly, finds that Hickson element (1), medical evidence of a current disability, in the form of currently manifested COPD, is satisfied. With regard to Hickson element (2), in-service incurrence or aggravation of a disease or injury, the Board notes that the veteran has alleged that he was exposed to asbestos while on active service; he testified in February 2004 that he served aboard a ship on which asbestos was used for purposes such as soundproofing and fireproofing. With respect to in-servie incurrence of disease, the veteran's service medical records do not indicate that a pulmonary disorder, to include COPD, was diagnosed, or that he at any time complained of symptoms that could be deemed to represent any such disorder. The report of his service separation medical examination, dated in March 1946, shows that clinical evaluation of his respiratory system, to include X-ray studies, was normal. Neither this report, nor any other service medical record, references an in-service history of COPD or pulmonary problems. With respect to in-service injury, namely exposure to sasbestos, the veteran has testified that he was exposed to asbestos while in service, and specifically has alleged that asbestos was commonly and prolifically used aboard the ship upon which he served. This is consistent with the VA Manual M-21-1, Part VI provisions discussed in the law and regulations section above. Therefore, for the purpose of this analysis, the Board will assume that the veteran did incur an in-service injury, in the form of exposure to asbestos, and that Hickson element (2) is therefore met to that extent. The evidence, however, fails to demonstrate that Hickson element (3), medical nexus, is satisfied. To the contrary, the record is devoid of any conclusion that the veteran's COPD is due to his service. The report of the October 2001 VA examination, which was undertaken expressly to address this question, shows a conclusion by the examiner that it was less likely than not that the veteran's lung disease is related to asbestos exposure. A private medical record dated in December 1998, apparently prepared in conjunction with litigation for persons seeking recompense for asbestosis, indicates that the veteran had interstitial fibrosis caused by pulmonary asbestosis as well as asbestos-related pleural disease. Significantly, that report cited a history provided by the veteran of employment prior to service as a railroad laborer, and after service as a railroad fireman, engineer, and hostler. The report does not reference any in-service asbestos exposure. It therefore follows that even if his diagnosis of asbestos-related disease is accepted, the conclusion reached by this private physician did not encompass in-service asbestos exposure as a cause of the veteran's pulmonary disability. The only evidence submitted that advocates a causal relationship between the veteran's COPD and his naval service is his own testimony. The veteran has not, however, demonstrated that he has requisite medical expertise or training that would render his testimony competent and probative. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) [lay person cannot offer opinion requiring medical knowledge]; see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. In short, Hickson element (3), medical nexus, is not met. See VA O.G.C. Prec. Op. No. 04-00. In the absence of a nexus between a current disability and service, the preponderance of the evidence is against the veteran's claim of entitlement to service connection for COPD. The claim, accordingly, is denied. ORDER Service connection for COPD is denied. ____________________________________________ Barry F. Bohan 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