Citation Nr: 0512255 Decision Date: 05/03/05 Archive Date: 05/18/05 DOCKET NO. 03-35 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for asbestos-related lung disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (the RO). Procedural history The veteran served on active duty from August 1943 to April 1946. In a May 2003 rating decision, the RO denied the veteran's claim of entitlement to service connection for a disability characterized as asbestos-related lung disease. The veteran indicated disagreement with that decision and, after being issued a statement of the case, perfected his appeal by submitting a substantive appeal (VA Form 9) in November 2003. The case was remanded by the Board in July 2004. After additional development was completed, the RO issued a supplemental statement of the case in February 2005 which continued to deny the veteran's claim. In July 2004, the Board advanced the veteran's claim on the Board's docket, pursuant to the motion made by the veteran's representative and in accordance with 38 C.F.R. § 20.900(c). Issue not on appeal In January 2004, the RO denied the veteran's claim of entitlement to an increased disability rating for service- connected lumbosacral strain. The veteran was notified of that decision in March 2004. Review of the record does not reflect that he thereafter indicated disagreement with that decision within the one-year period for such action, and that claim is therefore not before the Board. See 38 C.F.R. §§ 20.200, 20.201 (2004); Archbold v. Brown, 9 Vet. App. 124 (1996) [the filing of a notice of disagreement initiates appellate review in VA administrative adjudication process, and request for appellate review is completed by the claimant's filing of substantive appeal after a statement of the case is issued by VA]. FINDING OF FACT A preponderance of the competent medical evidence of record demonstrates that the veteran's current lung disorder is not the product of asbestos exposure. CONCLUSION OF LAW Asbestos-related lung disease was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking service connection for a pulmonary disorder that has been characterized as asbestos-related lung disease. He specifically alleges that the current manifestation of his pulmonary problems is the product of in- service exposure to asbestos aboard the ship on which he served. The Veterans Claims Assistance Act The VCAA [codified as amended at 38 U.S.C.A. § 5102, 5103, 5103A, 5107], enacted in November 2000, 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. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,630 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)]. 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 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2004). 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. See 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]. To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). The Board observes that the veteran was notified by the October 2003 statement of the case and by the March 2005 several supplemental statement of the case of the pertinent law and regulations, of the need to submit additional evidence on his claim, and of the particular deficiencies in the evidence with respect to his claim. Crucially, pursuant to the Board's July 2004 remand a letter was sent to the veteran by the RO in July 2004 that was specifically intended to address the requirements of the VCAA with reference to the veteran's claim. The letter explained to the veteran that the RO was processing his claim, and provided him with the evidentiary requirements as they pertain to service connection claims. The veteran was informed that he should provide evidence as to an in-service disability, a current disability, and a relationship between the in-service and current problems, along with evidence that showed that his current condition was related to in-service asbestos exposure. Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). In the July 2004 VCAA letter, the RO informed the veteran that VA was responsible for obtaining records from any Federal agency, to include the military, VA hospitals, or the Social Security Administration. He was also informed that VA would make reasonable efforts to obtain on his behalf relevant records not held by a Federal agency, to include records from state or local governments, private doctors and hospitals, and current and former employers. The letter also stated that a VA examination would be provided if one was necessary to make a decision on his claim. Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). The July 2004 letter informed the veteran that he was to give VA enough information about his records so that VA could request them from the person or agency that has them. He was advised that, if the holder of the records declined to give VA the records or asks VA for a fee to provide them, VA will notify him of the problem. He was specifically advised as follows: "It's your responsibility to make sure that we receive all requested records that aren't in the possession of a Federal department or agency." (Emphasis added.) Finally, the RO must request that the claimant provide any evidence in the claimant's possession that pertains to the claims. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). The July 2004 VCAA letter told the veteran "If there is any other evidence and information that you think will support your claim, please let us know. If the evidence is in your possession, please send it to us" This complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In short, based on the above record, the Board concludes that the veteran has been amply and correctly informed of what is required of him and of VA in connection with his claim. The July 2004 letter properly notified the veteran of the information, and medical or lay evidence, not previously provided to VA, that is necessary to substantiate his claim, and it properly indicated which portion of that information and evidence is to be provided by the veteran and which portion the VA would attempt to obtain on his behalf. Based on this procedural history, the Board finds that the veteran was notified properly of his statutory rights. 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 has obtained the veteran's service medical records and records of post-service medical treatment. He was accorded a VA examination in September 2004, with addendum in January 2005, that specifically addressed the matter at issue. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. He requested a hearing at the RO, but failed to report for the hearing that was thereafter scheduled. He has not indicated the existence of any other evidence that is relevant to his appeal. VA has no further duty, therefore, to notify the veteran of the evidence needed to substantiate his claim, or to assist him in obtaining that evidence, in that no reasonable possibility exists that any further assistance would aid the veteran in substantiating the claim. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001). 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 this claim has been consistent with the provisions of the VCAA. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2004); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). 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. See 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 of VA 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) 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. See 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. See M21-1, part VI, para. 7.21(b)(1) and (2). 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, several million people employed in U.S. shipyards and 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). In a recent decision, 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. See 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 (2004). Analysis As discussed above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of such disability; and (3) medical nexus. See Hickson, supra. The veteran has specifically limited his claim to asbestos- related lung disease. This distinction is critical. The current medical evidence, which includes both VA and private medical records, indicates the presence of a pulmonary disability, currently identified as chronic obstructive pulmonary disease (COPD) and previously as asbestosis. The Board's inquiry will be directed towards whether the any current lung disability is asbestos-related. Private medical statements submitted by the veteran in support of his claim indicate the presence of asbestosis. In an August 2001 statement, a private physician, Dr. L.C.R., indicated a diagnosis of asbestosis based on the veteran's significant occupational exposure to asbestos dust, his chest radiograph, physical examination, and pulmonary function studies. In a November 2002 statement, Dr. A.J.S., a "consultant in pulmonary medicine" rendered impressions to include as follows: "On the basis of the medical history review, which is inclusive of a significant exposure to asbestos dust, the physical examination and the chest radiograph, the diagnosis of bilateral asbestosis is established within a reasonable degree of medical certainty." There is, however, additional competent medical evidence which indicates that while the veteran has a current lung disability, namely COPD, it is not the product of asbestos exposure and cannot be characterized as asbestosis. In particular, the report of a September 2004 VA pulmonary examination, conducted pursuant to the Board's July 2004 request for an examiner to render an opinion as to whether any current pulmonary diagnosis is attributable to exposure to asbestosis, shows a conclusion that it was less likely than not that the veteran's symptoms were due to asbestos, but that his symptoms and findings were most likely due to his severe COPD from smoking The examiner's conclusion was based on clinical findings and the veteran's recitation of his medical history. This examiner did not apparently refer to the veteran's medical records. Ordinarily, opinions rendered on examination without reference to available medical records are of limited probative value; see, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) [VA examination is to take into account the records of prior medical treatment]. The report of the September 2004 VA examination shows that, with regard to the possibility of asbestos exposure, the examiner relied solely on the veteran's history, and still concluded that the veteran's lung disease was not asbestos related. There is no prejudice to the veteran; indeed, the medical history was presented in terms that could hardly have been more favorable to his claim. The Board therefore finds that the conclusion rendered on VA examination in September 2004 is probative. Moreover, in January 2005 another VA examiner reached the same conclusion, based on review of the medical evidence contained in the veteran's VA claims file, as well as the history as provided by the veteran. The examiner stated that he fully concurred with the assessment rendered in September 2004, again finding that it was less likely than not that the veteran's current lung disease and associated symptoms were due to asbestos exposure, but rather were much more likely due to COPD from smoking, with asthma being the next most likely possibility. The VA examination reports of September 2004 and January 2005 thus indicate that the veteran's lung disease cannot be characterized as being asbestos-related. The Board is therefore confronted with conflicting medical opinions, one set indicting the presence of asbestos-related lung disease and the other indicating the contrary. By law, 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, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Board finds the more recent VA opinions to be more probative than the earlier private medical opinions. Crucially, in the Board's estimation, although the two private physicians stated that radiology evidence indicated the presence of asbestosis, the radiology reports on their face demonstrate no such thing. A June 2000 chest x-ray report included impressions of COPD and possible pneumoconiosis. A January 2003 x-ray produced similar findings, that of COPD and a calcified granuloma. None of the radiology reports indicates the presence of asbestos. This was discussed in some detail by the January 2005 VA reviewer, who stated: "Asbestos related lung disease would be expected to produce . . . linear opacities on CXR [chest x-ray], or pleural disease on CXR, none of which are presently apparent." In addition, both VA examiners noted that pulmonary function testing was not consistent with asbestos-related lung disease but rather due to COPD due to smoking. In contrast, the private physicians' opinions that asbestos- related disease is present are conclusory and not supported by adequate reasoning. Indeed, the remainder of the August 2001 opinion of L.C.M., M.D. appears to support a conclusion that COPD is present, with no reference to asbestosis or asbestos related disease. The November 2002 opinion of A.J.S., D.O. contains no reasoning whatsoever for his conclusion that asbestos-related disease exists, aside from the veteran's own statement of past exposure to asbestos. After having carefully considered the matter, and for reasons expressed immediately above, the Board concludes that the greater weight of the medical evidence is against the veteran's claim. That is, the medical evidence, including the radiology reports and the opinions of the two VA physicians, which indicates that asbestos-related disease is not present, outweighs the poorly reasoned opinions of the two physicians to the contrary. The Board accordingly concludes that there is no current asbestos-related pulmonary disability. It is now well settled that in order to be considered for service connection, a claimant must first have a disability. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). In brief, there is no showing that asbestosis currently exists. Hickson element (1) disability, is not satisfied, an the veteran's claim, as it pertains to asbestosis, fails on that basis. For the sake of completeness, the Board will also address the remaining two Hickson elements. With regard to Hickson element (2), in-service incurrence of disease or injury, the Board will separately address the matters of disease and injury. With respect to in-service disease, the veteran's service medical records are devoid of references to lung problems, or complaints thereof. The report of his separation medical examination, dated in April 1946, shows that his respiratory system, including lungs, pleura, and bronchi, were clinically evaluated as normal. This report does not show the presence of any lung disease, or complaints indicative thereof. In fact, the medical evidence first shows the presence of lung disease in 2001. Thus, there is no evidence to the effect that such disability began during the veteran's World War II service, which concluded in 1946. Turning to the matter of in-service injury, the service records indicate that the veteran served aboard ship during World War II, and he was thus arguably exposed to asbestos. See M21-1, part VI, para. 7.21(b)(1) and (2), and the Board's discussion thereof in the law and regulations section above. Hickson element (2) has been met to that extent. In the absence of in-service lung disease, Hickson element (3), a nexus between the current disability and the in- service disability, cannot be satisfied; there can be no nexus between two items when one of those items is not shown to exist. To the extent that the opinions of the two private physicians link the claimed asbestos-related disease to the veteran's military service, for reasons stated above the Board accords them little weight of probative value. The Board accords greater weight to the opinions of the two VA physicians, who ascribe the veteran's current COPD to his long history of smoking. The Board observes in passing that the two private physicians ascribed the veteran's claimed asbestos-related pulmonary disease to pre-, in-, and post-service asbestos exposure. It must also be noted, in this regard, that the veteran has reported that he has received settlements from four different private companies for asbestos exposure. In any event, as discussed above the actual presence of asbestos-related disease has been considered and rejected by the Board, so any consideration of in-service exposure versus pre- and post- service exposure is a moot point. In conclusion, for reasons and bases expressed above the Board concludes that Hickson elements (1) and (2) have not been met. A preponderance of the evidence is against the claim of entitlement to service connection for asbestos- related lung disease. The benefits sought on appeal are accordingly denied. ORDER Service connection for asbestos-related lung disease is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs