Citation Nr: 0511877 Decision Date: 04/27/05 Archive Date: 05/03/05 DOCKET NO. 96-46 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran served on active duty from September 1973 to December 1974. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision the Department of Veterans Affairs (VA) Regional office in St. Petersburg, Florida (RO). In March 2004, the Board rendered a decision on the veteran's claim. In August 2004, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision dated in March 2004, and remanded the case pursuant to a Joint Motion for Remand. In September 2004, the Board provided the veteran notice that he had 90 days to submit additional evidence, or argument, with respect to his claim. In December 2004, before the 90 days expired, the Board again rendered a decision on the veteran's claim for entitlement to service connection. In March 2005, the Board vacated its December 2004 decision. It has now been over 6 months since the September 2004 notice to the veteran that he had 90 days to submit additional evidence or argument with respect to his claim. Neither the veteran, nor his attorney has submitted any additional evidence, or argument, related to the veteran's claim for entitlement to service connection for asbestosis. Therefore, Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. A private medical report dated July 1994 indicates that x-ray findings and clinical signs support a diagnosis of asbestosis, without indicating which history of asbestos exposure was considered in making the diagnosis. 2. VA medical examination reports dated in 1995, 1999, and 2000 indicate that the veteran has a history of asbestos exposure without any current objective manifestations of asbestos related disease. 3. VA x-ray examination reports dated in 1995, 1999, and 2000 all reveal the veteran's lungs to be free of any asbestos related abnormality. 4. Competent evidence of record reveals that, although asbestos was used aboard the naval vessel that the veteran served aboard, his probability of exposure to asbestos was minimal. 5. The veteran served aboard ships in private merchant service for over a decade after his period of active military service. 6. There is no medical evidence linking any current respiratory disorder to asbestos exposure during active military service. CONCLUSION OF LAW Asbestosis was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110, 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 letters dated in June and November 2001, 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; In this case, VA informed the appellant of the evidence needed to substantiate the claim in a letter dated November 2001. This letter also informed the appellant of VA's duty to assist and which party would be responsible for obtaining which evidence. The Board concludes that the discussion therein adequately informed the appellant of the information and evidence needed to substantiate the claim, and of VA's duty to assist in obtaining evidence thereby meeting the notification requirements of the VCAA. 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. The veteran submitted private medical records. VA has requested, on the veteran's behalf, additional private medical records which he indicated showed he had a diagnosis of asbestosis. To date, VA has not received any additional private medical evidence supporting the veteran's assertion that he has asbestosis. The veteran's VA treatment records have been obtained and associated with the claims file. The veteran has also been accorded three VA Compensation and Pension examinations with respect to his claim for service connection for asbestosis. 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. 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 current disability in several ways including on a "direct" basis. 38 U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.303(a), 3.304 (2004). Direct 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 C.F.R. § 3.303(a), (b), (d). Establishing direct service connection for a disability, which has not been clearly shown in service, requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(d); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, the determinative issues presented by the claim are (1) whether the veteran had asbestos exposure during active military service; (2) whether he has a current asbestos related pulmonary disability; and, if so, (3) whether the current disability is etiologically related to the asbestos exposure during service. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease identity is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). "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 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) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB 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 served in the United States Navy from September 1973 to December 1974, a period of almost 14 months. The veteran's discharge papers, DD 214, also reveal that he had sea service aboard the USS SARATOGA (CV 60) for a period of almost 11 months. On separation the veteran's rate was "AR," Airman Recruit. The RO requested asbestos exposure information from the Navy Department. In May 2000, the Navy responded stating that we have no way of determining to what extent [the veteran] was exposed to asbestos during his Naval service. We know General Specifications for Ships during this period, required heated surfaces to be covered with an insulating material and it is highly probably that asbestos products were used to achieve this end. Items that required insulation included piping, flanges, valves, fittings, machinery, boilers, evaporators, and heaters. [The veteran's] occupation was as an Airman Apprentice (AA). The probability of exposure to asbestos was minimal. However, a positive statement that the veteran was or was not exposed cannot be made. The veteran has also asserted that he was exposed to asbestos when he was required to wear firefighting gear on the flight deck of the aircraft carrier. The Board has considered these allegations. The veteran basically asserts that he had to wear an asbestos firefighting (flame proof) suit during his duties on the fight deck. The Board acknowledges that asbestos is used to provide insulation and flame retardant qualities in such fire fighting equipment. However, the asbestos is contained within the woven fabric of a fiber and often suspended beneath a reflective surface. Such asbestos usage does not result in the breaking down of asbestos fibers which can be breathed which is the exposure contemplated in the advisory information contained in the Manual M21-1 as noted below. 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). Asbestos fibers may also produce pleural effusions 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. Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21, a (1). M21-1 also 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 veteran served aboard a Navy ship for a period of almost 11 months during active service. However, he served in an aviation rating and the Service Department indicated that the "probability of exposure to asbestos was minimal." The veteran did not serve in an engineering rating which would have brought him into contact with the equipment aboard the ship which required insulation with asbestos. The veteran's use of asbestos clothing for firefighting duties did not result in exposure to asbestos dust or particulate matter. The evidence of record also shows that the veteran served in the Merchant Marine for at least 10 years after his separation from active service. In an October 1998 statement, the veteran indicated that he was an "Able-Bodied Seaman (stood watch on ships) with the U.S. Department of Transportation, US Navy, Military Sea Lift Command, Bayonne, NJ, from about 1982 - 88. I was an Able- Bodied Seaman with Seafarers International Union and the National Maritime Union, Norfolk, VA, from 1988 - 92." This is civilian employment aboard merchant ships and is not active duty. Moreover, it shows potential exposure to asbestos while the veteran was in the Merchant Marine for a period of almost a decade after his period of active service. The evidence of record also reveals that the veteran has been a plaintiff in private litigation based on civilian asbestos exposure. The 1994 private physician's letter was addressed to the "Maritime Asbestos Legal Clinic" and was apparently prepared with respect to litigation involving the asbestos exposure of the veteran in circumstances other than in active military service. In his October 1996 substantive appeal, the veteran also indicated that he had received payments related to a private legal proceeding concerning asbestos exposure. As noted above, 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). IV. Medical Evidence of Current Asbestosis Disability A letter from a private physician dated in July 1994, addressed to the "Maritime Asbestos Legal Clinic" was apparently prepared with respect to litigation involving the asbestos exposure of the veteran in circumstances other than in active military service. The letter states the posterior to anterior projection chest x- ray was reviewed for evidence of asbestosis. Interstitial fibrosis is noted in both lung bases. The patient also suffers from shortness of breath, blood in sputum or abnormal amount of sputum, and difficulty breathing climbing stairs, walking, etc. Both the x-ray findings and the clinical signs are consistent with exposure to asbestos, and together the produce a diagnosis of asbestosis. The Board notes that this medical report did not specify what the veteran's prior asbestos exposure was. 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 (emphasis added). Based on the specific guidance for a diagnosis of asbestosis provided in the M21-1 the July 1994 medical record is inadequate to establish a diagnosis of asbestosis. The actual radiology report showing interstitial fibrosis is not of record with the letter. More importantly this record in no way indicates what history of asbestos exposure alleged by the veteran was considered in making the diagnosis. A history of exposure is a critical element in the diagnosis and this record does indicate whether the veteran's alleged history of exposure during military service for an 11 month period or his decade of civilian merchant sea service was considered in making the diagnosis. In October 1996, the veteran submitted his substantive appeal on a VA Form 9. At that time he also submitted a copy of pulmonary function test results which were dated February 1996. The test results did not show any pulmonary function abnormality and the test summary stated that the "spirometric results appear normal." In September 1995, a VA examination of the veteran was conducted. The veteran reported complaints of weakness, fatigability, and difficulty in breathing. He also reported a history of working in the Merchant Marines for at least ten years after military service. He gave a history of having had active tuberculosis when he was a child, and reported being hospitalized during service for weakness and breathing difficulty. Physical examination revealed that the lung fields were clear "with no evidence of any abnormal breathing for breath sounds." The veteran stated that he was able to perform all normal physical activities but that he tired easily. In conjunction with the physical examination, x-ray examination of the chest was also conducted; the veteran provided a 1993 private x-ray which the examining radiologist used for comparison. The chest x- ray revealed linear right apical infiltration with some streaks of calcification. The left lung apex and lower lobes of both lungs was free of infiltration; there was no pleural fluid. The examining radiologist's conclusion was "linear fibrocalcific infiltration most likely on the basis of previous granulomatous disease. Active pulmonary tuberculosis cannot be excluded on the basis of a single radiographic examination." After review of all of the test findings, the examining physician stated "chest x-ray reported as showing fibrocalcific infiltrations in the right apex consistent with previous granulomatous disease. Pulmonary function studies reveal no evidence of decreased function or emphysema." The diagnosis was inactive pulmonary tuberculosis. At this point the Board notes that the July 1994 private medical letter discussed above stated that the veteran had interstitial fibrosis in both lung bases on x-ray examination. However, the September 1995 VA x-ray examination revealed that both lower lung lobes were clear. In July 1999, another VA examination of the veteran was conducted. The veteran reported being exposed to asbestos during Navy service in 1973 and 1974. He reported symptoms of shortness of breath, productive cough which was occasionally productive of blood three to four times a month. He also indicated a 10-year history of smoking, but that he quit in 1985. Physical examination revealed that the lungs were clear to palpation, percussion, and auscultation. There was no evidence of other symptoms of asbestosis; specifically there was no evidence of peripheral edema, no clubbing of the extremities, and the his nailbeds were normal and pink. Pulmonary function testing revealed normal results. Chest x- rays revealed old inflammatory changes in the apex of the right lung. The impression of the examining radiologist was possible chronic obstructive pulmonary disease (COPD) and old inflammatory changes which were consistent with tuberculosis. After review of all the test findings, the examining physician's diagnosis was "COPD without evidence of asbestosis." In October 1999, another VA chest x-ray examination of the veteran was conducted. The impression was COPD. In February 2002, the most recent VA examination of the veteran was conducted. Physical examination revealed no abnormality of the lungs. Pulmonary function testing revealed a mild restrictive ventilatory defect, while x-ray examination of the chest was consistent with COPD. The diagnosis was COPD. The evidence of record establishes that the veteran currently has COPD. However, the medical evidence of record does not establish that the veteran currently suffers from any asbestos related pulmonary disorder. The 1994 letter from a private physician indicated that the veteran had asbestosis which was supported by x-ray and clinical findings. However, this was a letter which did not provide any of the underlying examination reports to support the statements made. Specifically, this letter indicated that the veteran had interstitial fibrosis in the base of both his lungs on x-ray examination. However, three subsequent VA chest x-rays did not identify any abnormality with the veteran's lung bases. Rather, the veteran's lower lung lobes have been noted to be clear on all subsequent VA chest x-rays. Based on this the Board finds that the 1994 private diagnosis of asbestos to be unsupported by the evidence of record. The preponderance of the evidence of record shows that the veteran does not have a diagnosis of asbestosis. 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. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability there can be no valid claim." See 38 U.S.C.A. § 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). 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 asbestosis is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs