Citation Nr: 0432667 Decision Date: 12/09/04 Archive Date: 12/15/04 DOCKET NO. 04-08 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a respiratory disorder, diagnosed as chronic obstructive pulmonary disease and claimed as a residual of asbestos exposure during service. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from February 1946 to August 1947 and from October 1950 to July 1951. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia (RO). A motion to advance this case on the Board's docket was granted by the Board on November 8, 2004, for good cause. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2004). FINDINGS OF FACT 1. Private medical records reveal that the veteran is diagnosed with chronic obstructive pulmonary disease (COPD). 2. A private medical report dated May 2001 refers to post- service exposure to respiratory toxins including silica. 3. The veteran's served in the Army for his active military service and was transported overseas aboard troop ships during service. 4. There is no competent medical evidence of a current asbestos-related respiratory disorder. 5. There is no medical evidence linking any current respiratory disorder to service or any incident therein, to include asbestos exposure during active military service. CONCLUSION OF LAW A respiratory disorder, diagnosed as chronic obstructive pulmonary disease, was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Following the RO's determinations of the veteran's claim, VA issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2004). First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Second, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, VA notified the veteran by a letter dated March 2003, that VA would obtain all relevant evidence in the custody of a Federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment for his claimed disabilities, or to provide a properly executed release so that VA could request the records for him. The duty to notify the appellant of necessary evidence and of responsibility for obtaining or presenting that evidence has been fulfilled. Quartuccio, 16 Vet. App. at 187; Third, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO requested the veteran's service medical and service personnel records from the appropriate records depository on several occasions. The available records have been received and are on file. There is no indication that other Federal department or agency records exist that should be requested. The veteran was asked to advise VA if there were any other information or evidence he considered relevant to his claim so that VA could help him by getting that evidence. He was also advised what evidence VA had requested, and notified in the statement of the case and supplemental statement of the case what evidence had been received. There is no indication that any pertinent evidence was not received. Therefore, the duty to notify of inability to obtain records does not arise in this case. Id. Moreover, the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. In this regard, the veteran has not been provided a VA examination in order to determine whether he has a respiratory disorder due to military service. Nevertheless, none is required. The Board notes that such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In this appeal, this is not the case. Consequently, the Board finds that VA did not have a duty to assist that was unmet. Thus, VA's duty to assist has been fulfilled. While VA did not specifically ask for all evidence in the appellant's possession. The appellant, however, has not indicated any additional evidence which needs to be obtained thus stating sub silentio that he neither has nor knows of any further pertinent evidence. Hence, no evidence has been lost to the record, and there is no failure to assist the appellant simply because VA did not explicitly ask him to submit all evidence in his possession. If an appellant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the appellant, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. II. Requirements for Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. § 3.303. "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (Court) observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has VA promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the Circular has been subsumed verbatim as § 7.21 of VA Manual ADMIN21 (M21-1). More recently the Court has held that neither Manual M21-1 nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). III. Military Service and Asbestos Exposure The veteran had two periods of active military service in the Army. The first period extended from February 1946 to August 1947 and the second period extended from October 1950 to July 1951. The veteran's primary claim is that during service he traveled overseas aboard multiple troop ships and that is was during these voyages that he was exposed to asbestos. In September 2004, a hearing was held before the Board pursuant to 38 U.S.C.A. § 7107(b) (c) (West 2002). The veteran testified that during active service he traveled overseas aboard troop ships and that he believed asbestos was used as insulation aboard these ships. He also testified that he maintained furnaces during a few weeks of being stationed in barracks. Review of the veteran's discharge papers for first period of active service reveal that he had over a year of foreign service in the European Theater. The veteran's discharge papers for his second period of active service reveal that he served overseas in Japan and Korea during this time. As such, the Board acknowledges that the veteran had multiple postings overseas during his periods of active military service and that he would have traveled to these postings aboard troop ships. Manual M21-1 provides some guidance with respect to occupational asbestos exposure. It states that: (1) Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and 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, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. (2) 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, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were 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 disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21, b. The Board does not doubt that asbestos was present aboard the troop ships which the veteran traveled on during service. However, the veteran was transported as a passenger aboard troopships during active service; he did not serve in the engineering spaces of these ships which would have brought him into contact with the equipment aboard the ship which required insulation with asbestos. A May 2001 private medical treatment record also provides some evidence with respect to respiratory exposure. In this record the veteran had complaints of shortness of breath and occasional wheezing. The treating physician suspected that the veteran had COPD and ordered a chest x-ray to rule out COPD versus a pulmonary edema. The treating physician also noted that the veteran "is a former I.N.C.O. employee, and he thinks he may have been exposed to some sort of toxic substance not excluding silica." VA must ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). At this point the Board notes that the veteran's service medical records are unavailable. An April 2003 response from the National Personnel Records Center (NPRC) reveals that the veteran's service medical records had been destroyed by a fire. The RO attempted to obtain alternate service medical records but was unsuccessful. VA has a heightened obligation to search for alternate medical records when service medical records are not available and must also provide an explanation to the veteran regarding VA's inability to obtain his service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). In the present case, the veteran does not assert that he had symptoms of, or treatment for a respiratory disorder during service. Rather, he asserts that his current respiratory disorder is the result of asbestos exposure during service with symptoms manifesting many years after service. As such, the presence of the service medical records is not critical to the adjudication of the veteran's claim. IV. Medical Evidence of Current Asbestosis Disability As noted above, a May 2001 private medical record reveals that the veteran sought treatment for had complaints of shortness of breath and occasional wheezing. He reported that the veteran stated he may have been exposed to some sort of toxic substance not excluding silica in his post-service employment. The treating physician suspected that the veteran had COPD and ordered a chest x-ray to rule out COPD versus a pulmonary edema. The chest x-ray was conducted and the May 2001 report reveled hyperlucency in the veteran's upper lung lobes, with no pleural disease being seen. The impression was "COPD, unchanged since 6/30/98." A subsequent record dated September 2001 reveals that the diagnosis was mild to moderate COPD and that the veteran was being treated with inhaled medication. M21-1 also provides specific guidance with respect to the requirements for a diagnosis of asbestosis. It states that: The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21, c. The medical evidence of record clearly shows that the veteran has a current respiratory disorder. He has a current diagnosis of COPD and is being treated for this disability. However, the medical evidence of record does not establish that the veteran currently suffers from any asbestos related pulmonary disorder. Specifically, asbestos related respiratory disorders are "restrictive" lung disorders, which the veteran suffers from an "obstructive" lung disorder. Even assuming that the veteran was exposed to asbestos during military service, there is no medical evidence which in any way relates the veteran's COPD to his military service or to asbestos exposure during military service. The only medical evidence of record which in anyway appears to provide a nexus seems to relate the COPD to post-service industrial exposure to toxins and silica. The preponderance of the evidence of record shows that the veteran does not have a diagnosis of asbestosis or any asbestos related pulmonary disorder. With no evidence of any current asbestos-related disability that is related to his military service, the preponderance of the evidence is against the veteran's claim for service connection. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a respiratory disorder, diagnosed as chronic obstructive pulmonary disease and claimed as due to asbestos exposure in service, is denied. ____________________________________________ JOY A. MCDONALD 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