Citation Nr: 0512613 Decision Date: 05/09/05 Archive Date: 05/25/05 DOCKET NO. 03-35 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for asthmatic bronchitis, including secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from June 1979 to March 1982. This case comes before the Board of Veterans' Appeals (Board) from a May 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In his November 2003 substantive appeal (VA Form 9), the veteran requested a hearing at the RO before a Member of the Board (Veterans Law Judge (VLJ)). This type of hearing is often called a travel Board hearing. Subsequently, though, he changed his mind and requested a hearing instead before a local RO Hearing Officer, which was held in February 2004. FINDING OF FACT A chronic lung disorder was not shown until many years after the veteran's service in the military had ended and there is no competent medical evidence of record indicating he currently has chronic residual disability as a result of his documented exposure to asbestos in service. CONCLUSION OF LAW The veteran does not currently have asbestosis, or other chronic pathology, including his current asthmatic bronchitis, as a residual of a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) became effective on November 9, 2000. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance if there is no reasonable possibility that it would aid in substantiating the claim. Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Recently, the United States Court of Appeals for Veterans Claims (Court) addressed both the timing and content of the VCAA notice requirements imposed upon VA by the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 120 - 21 (2004) (Pelegrini II) (withdrawing its decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I)). In VAOPGCPREC 7-2004 (July 16, 2004) it was determined that the "holdings" in Pelegrini II were not necessary to the disposition of the case and implied that the Court's statements constituted dicta rather than binding holdings. Id. (citing dissenting opinion in Pelegrini II and other cases characterizing Court statements as dicta). Here, however, even if the Pelegrini II Court's statements were binding holdings, the RO nonetheless complied with them. The Court in Pelegrini II held that a VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini II, at 115. In this case the appeal stems from a May 2003 rating action that was after the enactment of the VCAA. The veteran was provided notification and assistance by the RO in a January 2003 letter, prior to the rating action in May 2003 that he is appealing. He received additional notification and assistance in another RO letter, sent in August 2003. As well, he was notified of the provisions of the VCAA in the October 2003 Statement of the Case (SOC). Even assuming he did not receive the requisite VCAA notice, per se, prior to initially adjudicating his claim, this was merely harmless error. There is no basis for concluding that harmful error occurs simply and only because a claimant receives VCAA notice after an initial adverse adjudication. While the VCAA notice was not given prior to the RO's adjudication, the appellant has been provided with every opportunity to submit evidence and argument in support of the claim, and to respond to the VA notice. Indeed, he had time to identify and/or submit additional supporting evidence after issuance of the SOC, and even more recently following the Supplemental SOC (SSOC) in April 2004. And this all occurred before actual certification of his appeal to the Board. Moreover, once the appeal arrived at the Board, there was still additional time (90 more days) to identify and/or submit additional supporting evidence and even beyond that with justification for delay. 38 C.F.R. § 20.1304. So, notwithstanding the requirements of Pelegrini II as to the timing of the VCAA notification, deciding this appeal at this juncture is not prejudicial error. The Court in Pelegrini II also held that VCAA notice 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 his or her possession that pertains to the claim. Pelegrini II, at 120-21. This new "fourth element" is required under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Id. According to VAOGCPREC 7-2004 the Pelegrini II holding did not require that VCAA notification contain any specific "magic words," and that it can be satisfied by an SOC or SSOC as long as the documents meet the four content requirements listed above. See also Valiao v. Principi, 17 Vet. App. 229, 332 (2003) (implicitly holding that RO decisions and statements of the case may satisfy this requirement). The "fourth element" language in Pelegrini I is substantially identical to that of Pelegrini II. VAOPGCPREC 1-04 (Feb. 24, 2004) held that this language was obiter dictum and not binding on VA, see also Pelegrini II, at 130 (Ivers, J., dissenting), and that VA may make a determination as to whether the absence of such a generalized request, as outlined under § 3.159(b)(1), is prejudicial to the claimant. For example, where the claimant is asked to provide any evidence that would substantiate his or her claim, a more generalized request in many cases would be superfluous. Id. The Board is bound by the precedent VA GC opinions. 38 U.S.C.A. § 7104(c). Here, although the written notice provided by the RO to the veteran does not contain the precise language specified in 38 C.F.R. § 3.159(b)(1), the Board finds that the appellant was otherwise fully notified of the need to give VA any evidence pertaining to the claim. The RO letters requested that he provide or identify any evidence supporting the claim and specifically outlined the necessary evidence. So a more generalized request with the precise language outlined in § 3.159(b)(1) would be redundant. The absence of such a request is unlikely to prejudice the appellant, and thus, the Board finds this to be harmless error. VAOPGCPREC 1-04 (Feb. 24, 2004). Also, the other three content requirements of the VCAA notice in Pelegrini II have been satisfied. The veteran's service medical records (SMRs) have been obtained, as have his service personnel records. Also, post-service private clinical records and VA treatment records have been obtained. He testified in support of his claim at a February 2004 RO hearing, a transcript of which is on file. Also, in January 2004 he was provided a complete copy of his claims file. The veteran has been provided with two official VA examinations to determine whether there is a link between his claimed pulmonary disability and his military service, including his claimed exposure to asbestos. See 38 U.S.C. § 5103A(d)(1)(a) and (d)(2) (West 2002) and 38 C.F.R. § 3.159(c)(4) (2004). The more recent statements and correspondence from the appellant and his representative do not make reference to or otherwise mention any additional treatment from other sources (e.g., private or non-VA, etc.). Accordingly, no further development is required to comply with the VCAA or the implementing regulations. And the appellant is not prejudiced by the Board deciding the appeal without first remanding the case to the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Analysis Service connection may be granted for current disability resulting from an injury sustained or a disease contracted while on active duty in the military. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a); see, too, Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999); Rose v. West, 11 Vet. App. 169, 171 (1998); Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may be granted, as well, for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Godfrey v. Brown, 7 Vet. App. 398, 406 (1995). "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See 38 U.S.C. § 1110 (formerly § 310). In the absence of proof of present disability there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). See also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). In determining whether service connection is warranted for a disability alleged, VA is responsible for considering evidence both for and against the claim. If the evidence, as a whole, supports the claim or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is against the claim, then it must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000), it was held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. The veteran's DD Form 214 indicates he received the Sea Service Deployment Ribbon. His military occupational specialty (MOS) was an electrical and mechanical equipment repairman and he had general fireman skills training. His service personnel records show he had extensive service aboard naval vessels. The veteran's SMRs show that, in December 1979, he complained of having had a chronic cough for the last two months and now had a cough and chest pain. The chest pain was in both sides of the upper chest and was constant and sharp in nature. On examination his lungs were clear to auscultation, with breath sounds over all lobes, bilaterally. The assessment was a chronic viral upper respiratory infection (URI). He was given Actifed. In February 1980 he sustained burns on his hands when they came into contact with hot pipes in the foreward engine room. The veteran has submitted copies of photographs of shipmates taken onboard military ships during service, purportedly depicting pipes insulated with asbestos. At the February 2004 RO hearing the veteran testified that he had served as a fireman on the USS Midway and worked with a lot of valves and pipes wrapped in asbestos, which had to be removed and then rewrapped on a daily basis. See page 2 of the transcript. Also, asbestos would fall into his bed, especially when there were vibrations on the ship. He never had nor sought treatment for asthmatic attacks during service. He started getting asthmatic attacks in 1991 or 1992 and started getting treatment for this in 1997 or 1998 at a private medical facility. Page 3. In the last 7 or 8 years he had had bronchitis and bronchial pneumonia. He said a VA physician had stated that the bronchitis and pulmonary disorder might have been caused by exposure to asbestos in service. His current diagnosis was asthmatic bronchitis. Page 4. The hearing officer pointed out that exposure to asbestos in service was not being denied by VA. Page 5. So the determinative issue was not so much whether the veteran had exposure, rather, whether he has an asbestos-related disease (such as asbestosis) as a result of that exposure. To support his claim, the veteran has submitted private clinical records from 1983 to 2003. They show treatment for pharyngitis in 1991 and 1994. In December 1994 he complained of intermittent chest discomfort, which seemed to be worse after he worked and seemed to be somewhat positional. Chest X-rays revealed no cardiopulmonary abnormality. The assessment was chest discomfort, probably secondary to costochondritis. In February 1995 he was treated for an URI and pharyngitis, which might have been due to a viral infection. In August 1995 there was an assessment of costochondritis with muscular strain of the chest wall. In September 2000 and June 2002 the assessments were bronchitis and pleurisy. VA clinical records from 2000 to 2004 show that, in July 2002, the veteran had an obstructive lung defect. In December 2002 sleep apnea was suspected. He was seen for asthmatic bronchitis in February 2003. Obstructive sleep apnea was diagnosed in August 2003. On VA pulmonary examination in October 2003 the veteran's claims file and VA medical records were reviewed. He reported having been exposed during service to asbestos- covered valves and reported having worked in an engine room for 4 years, when he saw asbestos particles in the air. He related having the onset of episodes of asthmatic bronchitis in about 1997 or 1998. He now had 3 or 4 such episodes a year that required treatment with antibiotics. He had a daily productive cough but denied hemoptysis and anorexia. He became short of breath if he walked more than one mile or went up one flight of stairs. He did not have asthma attacks, but he used inhalers. He had experienced corn dust exposure while working in a popcorn factory for about 7 years after service. He also had 10 years of post-service work in construction and had worked for the last two years for a correctional facility doing laundry. It was noted that he had a fair amount of post-service dust exposure. The examiner noted that a past chest X-ray in July 2002 had revealed a calcified granuloma but no evidence of asbestosis or fibrosis. Pulmonary function testing had been conducted and the formal interpretation was pending. The diagnoses were dust exposure and asthmatic bronchitis episodes. The examiner noted that it appeared the veteran had long-term asbestos exposure during service, but that current chest X- rays did not show any evidence of asbestosis or fibrotic changes in his lungs. A current chest X-ray revealed a cluster of calcified granulomas in the upper lobe of his right lung and current pulmonary function testing showed mildly reduced diffusion capacities, but was otherwise normal. On VA pulmonary examination in April 2004 the examiner related the results of the 2003 VA pulmonary examination. So it is clear that the claims file was reviewed. Past chest X- rays had found granulomatous disease in the upper lobe of the right lung but no evidence of asbestosis. It was stated that, with respect to the pathophysiology of asbestosis, the disease typically caused interstitial pulmonary fibrosis, pleural plaque disease, and pleural effusions. It was unlikely that it had ever been connected or related to reactive airway disease. It was noted that the veteran had previously reported being employed in a popcorn factory from 1993 to 2000, and he first started having bronchial infections in 1994 and in subsequent years during his employment at the popcorn factory. Various flavoring oils and powders had been added to the product. In the context of this history and the temporal relationship with respect to his symptoms, it was likely that his asthmatic bronchitis was related to his post-service occupational exposures. Pulmonary function testing revealed no evidence of airflow obstruction or any evidence of interstitial lung disease. The diagnoses indicated he had probable asthmatic bronchitis, which was likely related to occupational exposure to various flavoring oils and powders; and a history of prior asbestos exposure, but given the radiographic evidence and pulmonary function test results there appeared to be no evidence of asbestosis. It was again noted that it was unlikely, based on the pathophysiology of asbestosis, that it had ever been linked to reactive airway disease. The post-service employment in a popcorn factory, as well as the veteran's other post-service jobs are not listed by the M21-1 as having a higher incident of asbestos exposure. See M21-1, Part VI, par. 7.21(b)(1). The evidence shows there is a diagnosis of asthmatic bronchitis, as well as sleep apnea. However, the M21-1 does not list asthmatic bronchitis as one of the asbestos-related diseases. See M21-1, Part VI, par. 7.21(a)(1) & (2). Moreover, while the M21-1 provides that a clinical diagnosis of asbestosis requires, not only a history of exposure but radiographic evidence of parenchymal lung disease, no radiographic evidence of parenchymal lung disease appears in the claim's file. Conclusion With the above facts in mind, the Board concedes that the veteran's extensive work onboard naval ships in the military resulted in exposure to asbestos insulation, consistent with the M21-1. Further it is conceded that as little as one or two months working onboard a naval ship could have exposed him to enough asbestos to cause a problem 30 years later. However, the only diagnosed pulmonary disabilities are asthmatic bronchitis and obstructive sleep apnea, which are not the types of disease that can be caused by asbestos exposure. The Board concludes that the record on appeal does not contain radiographic evidence of parenchymal lung disease or a diagnosis of asbestosis. See M21-1, Part VI, par. 7.21(c). Moreover, the only medical opinions on file relate the veteran's current asthmatic bronchitis to his civilian occupational exposure to particulate matter. And since this exposure occurred after his service in the military concluded, it cannot serve as a predicate for granting service connection. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for asthmatic bronchitis, secondary to asbestos exposure, is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs