Citation Nr: 0504616 Decision Date: 02/17/05 Archive Date: 02/24/05 DOCKET NO. 02-06 879A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for chronic obstructive lung disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty in the United States Coast Guard, Merchant Marine, from March 1944 to August 1945. This appeal arises from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The veteran served as an ordinary seaman. His rates were listed as deck maintenance and bosun. 2. The veteran's current pulmonary disorder has been diagnosed as chronic obstructive pulmonary disease and emphysema. 3. The clinical records, computed tomography scans and X-ray reports of record do not support diagnosis of asbestosis. 4. There is no competent medical evidence which links the currently diagnosed COPD to service. CONCLUSIONS OF LAW 1. Asbestosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). 2. Chronic obstructive pulmonary disease was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As a preliminary matter, the Board finds that VA has satisfied its duties to the appellant under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). The veteran filed his claim prior to the passage of the VCAA. The RO in compliance with the procedures contained in Veterans Benefits Administration Adjudication Procedure Manual (M21-1) sent veteran a letter in December 2000 requesting information regarding his exposure to asbestos. The RO obtained the veteran's records of treatment from this private physician and VA. He was afforded a VA examination. In correspondence in December 2000 and March 2001 the RO informed him of the evidence necessary to support his claim and kept him informed of efforts to assist him. The RO requested service medical records until they were notified the veteran was not treated in service. A June 2001 letter from the PHS Health Data Center which archives records from the Merchant Marine indicated no records of care aboard ship were available. 38 C.F.R. § 3.159(c)(2) and (d). The RO sent the veteran a letter in May 2003 informing him of the provisions of the VCAA and providing notice of the status of his claim. In June 2004 the veteran stated he had no further medical evidence to provide. There is no possibility of any benefit flowing to the veteran should the Board remand his claim to attempt to remedy in defect in notifying him of the VCAA. Any further effort in this regard would not avail the appellant, and would only result in an additional burden to adjudicative personnel. Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Relevant Laws and Regulations. To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002). The General Counsel in VAOPGCPREC 4-2000 stated there were no presumptive provisions providing service connection for asbestosis. Medical nexus evidence was required to establish a connection between exposure to asbestos in service and any current diagnosis of asbestosis. Factual Background. The veteran's DD 214 reveals he served with the United Stated Coast Guard in the Merchant Marines from March 1944 to August 1945. His ratings included ordinary seaman, deck maintenance and bosun. There are no service medical records and a notation on June 2001 correspondence indicates the veteran was not treated on active duty. The veteran submitted his claim for VA compensation in June 2000. He requested service connection for asbestosis and COPD. In support of his claim he submitted a report of a computed tomography scan dated in August 1994 which noted bullae formation in the right upper lung and both lower lobes posteriorly. There were no active infiltrates. Pleural structures were normal. The veteran also submitted correspondence from a law firm pursuing asbestos related cases. Included was a letter indicating the veteran received compensation for his "debilitating condition from shipboard exposure to asbestos." A January 1996 letter form the Maritime Asbestosis Legal Clinic to the veteran from a physician, AJS, reads as follows: A single PA chest shows bilateral pleural thickening. Pleural thickening of this type is seen following asbestos exposure and is consistent with the diagnosis of pleural asbestosis. A February 1999 private chest X-ray noted unaltered evidence of COPD. The lung fields and pleural spaces appeared clear. The impression was COPD. In a June 2000 statement the veteran indicated he had a "presumptive" service connection clam for exposure to asbestos. He indicates he had a diagnosis of COPD which was "related" to his exposure to asbestos. The RO sent the veteran a letter in December 2000. He was asked to inform the RO when he was exposed to asbestos and to describe his duty assignments. He also was asked to described his post service employment history. The veteran submitted a statement in December 2000 outlining his claimed exposure and post service employment history. He claimed he was exposed to asbestos from 1944 to 1946. He worked with the deck crew and his work consisted of scraping paint off the ship and related maintenance work. After service he worked as a heavy equipment mechanic. He also worked as a oiler on a crane. In April 2001 the RO received the veteran's records of treatment from his private physician. They included diagnoses of COPD. June 2000 records noted the veteran had smoked from 18 to 54 years of age approximately one and one half packs per day. Chest X-rays had noted COPD since 1992 and computed tomography (CT) scan had noted COPD since 1994. A CT scan of the chest dated in June 2000 revealed pulmonary parenchyma demonstrating severe bullous emphysematous and central lobular emphysematous changes in both lungs diffusely. Subpleural bullae were present. No masses, nodules, infiltrates, or pleural effusions were identified. The impression was the veteran had worsening severe emphysema. The RO denied the veteran's claims for service connection in a September 2001 rating decision. The veteran disagreed with the rating decision in October 2001. He requested a VA examination. The RO received the veteran's records of treatment from the Bay Pines VA Medical Center. They included outpatient treatment records. The veteran was being followed by an internist, Dr. W. In February 2001 records Dr. W. noted asbestosis and COPD underneath a heading for past medical history and current problems. The evaluation included listening to the veteran's chest, but no diagnostic testing. The assessments included COPD and asbestosis. At the end of his report Dr. W noted the veteran was "in litigation" for his asbestosis. October 2001 records again noted COPD and asbestosis. An October 2002 VA examination report concluded diagnosis of the veteran's pulmonary symptoms was COPD. The VA physician stated there was no overt evidence that asbestos played a role. In the opinion of the VA examiner it was very likely that the veteran's emphysema was due to heavy inhalation of smoke from age 18 to 1982. He ordered chest X-rays and pulmonary function testing. As the report did not include analysis of the chest X-rays ordered in October 2002 an addendum to the examination report was requested. Another VA physician reviewed the claims folder. He concluded the veteran was exposed to asbestos in service. However the chest X-ray taken in 2002 showed no evidence of asbestos disease. It showed evidence of severe chronic pulmonary disease. There was no pleural thickening or pleural plaques that would be markers of significant asbestos exposure. In the absence of these markers on chest X-rays, it would be impossible to give a diagnosis of asbestosis. His heavy cigarette smoking was the most likely cause of his severe chronic obstructive pulmonary disease. Although it is possible that asbestos had a contribution it would be speculative in light of the negative chest X-ray taken in 2002. In June 2004 the veteran's VA internist, Dr. W, inserted an addendum into his records and noted the diagnosis of shortness of breath was COPD. The veteran indicated in June 2004 he had no other medical evidence to provide. He stated he was treated at the Bay Pines VA for both COPD and asbestosis. Analysis. In Nolen v. West, 12 Vet. App. 347, 351 (1999) the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") noted the Board must analyze an asbestos related claim in light of the considerations outlined in Veterans Benefits Administration Adjudication Procedure Manual (M21-1), Part VI, Paragraph 21 (incorporating Department of Veterans Benefits' Administration, DVB Circular 21-88-8, Asbestos Related Diseases, May 11, 1988). Those considerations include taking notice of the general facts as to the nature of asbestos and asbestos related diseases, occupational exposure to asbestos, and review of any clinical diagnosis. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). See M21-1, Part VI, 7.21(a). COPD is not included in the listing of diseases related to exposure to asbestos. High exposure to asbestos and a high prevalence of disease has been noted in insulation and shipyard workers. It is significant considering that during World War II, several million people were employed in U. S. shipyards and U. S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. 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 or indirect. See M21-1, Part VI, 7.21(b). Clinical diagnosis of asbestosis requires history of exposure and radiogenic evidence of parenchymal lung disease. See M21-1, Part, 7.21(c). In this instance the only evidence of exposure to asbestos in service are the statements of the veteran. The Court has held that veterans are competent to testify as to the facts of their asbestos exposure. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In this instance the time period of the veteran's service and his service aboard ship are consistent with the facts reported in M21-1 that military ships during World War II were constructed using asbestos. For the purposes of adjudication the Board will presume the veteran was exposed to asbestos in service. The veteran worked as a heavy mechanic after service. As noted in M21-1 servicing such things as clutch facings and brake linings may have resulted in exposure to asbestos. Nevertheless, the critical element in this case is whether there is a current diagnosis of asbestosis and any competent medical evidence linking COPD to service. In this instance the veteran's private physician and VA examiners have diagnosed COPD not asbestosis. The only diagnoses of asbestosis in the claims folder are from AJS and Dr. W, the VA internist. The Board is obligated under 38 U.S.C.A. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The opinion of AJS was furnished to a law firm in connection with a class action lawsuit based upon exposure to asbestos, and the veteran later received a lump-sum payment as is noted in a June 1996 letter. It clearly benefited all persons involved if asbestosis was identified. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [personal interest may affect the credibility of the evidence]. AJS apparently did not examine the veteran, but rather simply reviewed X-ray film. In addition, there is no report of a chest X-ray in the claims folding showing pleural thickening. AJS very carefully stated the findings were "consistent" with diagnosis of pleural asbestosis, but did not render a diagnosis of asbestosis. Accordingly, the Board places relatively little value on AJS's opinion. The assessments of asbestosis noted in VA outpatient treatment records were clearly recitations of statements made by the veteran that he had asbestosis. There are no clinical records, tests or other supportive records which include assessments of asbestosis. There are numerous references in the file to a diagnosis of asbestosis by history. Those references are clearly based on history reported by the veteran. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). The assessments were based on inaccurate information from the veteran. In Kightly v. Brown, 6 Vet. App. 200 (1994), the opining physician's statement was rejected because it was found to be based upon an inaccurate history as provided by the veteran. See Hadsell v. Brown, 4 Vet. App. 208 (1993); Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993). The Board noted that Dr. W, the veteran's VA internist, in June 2004 added an addendum to the veteran's records which stated the veteran's diagnosis of shortness of breath was COPD. The diagnosis of the veteran's private pulmonologist noting diagnosis of COPD since 1992 is based on chest X-rays and computed tomography scans and is of greater weight. In addition, in May 2003 a VA physician reviewed the claims folder and concluded there was no support for diagnosis of asbestosis as the chest X-ray from 2002 did not show pleural thickening or pleural plaques. The Board has concluded the evidence does not support a current diagnosis of asbestosis. In the absence of a current diagnosis of asbestosis, service connection is not warranted. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). The Board next addressed whether there is competent medical evidence connecting the currently diagnosed COPD to service. Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). The veteran contends it is related to his exposure to asbestos in service. COPD is not noted in M21-1 as being related to exposure to asbestos. The veteran is a lay person, and as such does not process any special training qualifying him to medical judgment. A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Two VA physicians have clearly stated the veteran's COPD is most likely related to his long history of heavy smoking. There is no competent medical evidence which links the veteran's COPD to service. The first diagnosis of COPD noted in the claims folder is dated in 1992, many years after the veteran's separation from the service in August 1945. Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service when considering a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (2000). The Board has concluded the preponderance of the evidence is against the claim for service connection for COPD. ORDER Service connection for asbestosis is denied. Service connection for COPD is denied. ____________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs