Citation Nr: 0516138 Decision Date: 06/14/05 Archive Date: 06/21/05 DOCKET NO. 02-17 514 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES Entitlement to service connection for a pulmonary/respiratory disability, claimed as a residual of pneumonia or as due to asbestos exposure. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from May 1945 to July 1946. This appeal to the Board of Veterans Appeals (Board) arises from an April 2002 rating action. A Notice of Disagreement was received in May 2002, and a Statement of the Case (SOC) was issued in August 2002. A Substantive Appeal was received in October 2002. A Supplemental SOC (SSOC) was issued in January 2003. In November 2003, the Board remanded this case to the RO for further development of the evidence and for due process development. As noted in the remand, although the RO characterized the appeal as involving claims for service connection for residuals of pneumonia and for asbestosis, the fact of the matter is that the veteran is seeking service connection for a single pulmonary/respiratory disability, due either to claimed in-service pneumonia or asbestos exposure. Hence, to give the veteran every consideration in connection with the instant appeal, and in the interest of judicial economy, the Board recharacterized the appeal as involving the single issue reflected on the title page. After accomplishing the development requested on remand, the RO continued the denial of service connection (as reflected in the RO's March 2005 SSOC) and returned the claims file. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. There is no evidence of pneumonia or any other pulmonary/respiratory disorder in service. 3. Competent and persuasive medical evidence establishes that the veteran does not currently have a pulmonary/respiratory disability that is the result of exposure to asbestos during his naval service. CONCLUSION OF LAW The criteria for service connection for a pulmonary/respiratory disability, claimed as a residual of pneumonia or as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. Through the October 2001 RO letter, the April 2002 rating action, the July 2002 RO letter, the August 2002 SOC, the October 2002 RO letter, the January 2003 SSOC, the May 2003, and January and September 2004 RO letters, the March 2005 SSOC, and the May 2005 RO letter, the veteran and his representative were variously notified of the law and regulations governing entitlement to the benefit sought on appeal, the evidence that would substantiate his claim, and the evidence that had been considered in connection with his appeal. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit information and evidence. Additionally, the October 2001 and January and September 2004 RO letters and the SOC and SSOCs variously informed the veteran of what the evidence had to show to establish entitlement to the benefit he sought; what information or evidence VA still needed from him; what evidence VA had retrieved and considered in his claim; what evidence he had to furnish; what he had to do to obtain assistance from VA in connection with his appeal; and that VA would make reasonable efforts to help him get evidence necessary to support his claim, such as medical records (including private medical records), if he gave it enough information about such records so that it could request them from the person or agency that had them. In addition, the latter documents specifically informed the appellant of the VCAA's requirements, and notified him that he could help with his claim by informing VA of any additional information or evidence that he wanted it to try to obtain for him, where to send additional evidence or information concerning his appeal, and where he could request assistance if needed. The September 2004 RO letter specifically notified the veteran to furnish any evidence or information that he had that pertained to his appeal. Accordingly, the Board finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and what evidence will be retrieved by VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board points out that, in the recent decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in his possession that pertains to the claim(s). As indicated above, all four content of notice requirements have been met in this case. However, Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the case now before the Board, one document meeting some of the VCAA's notice requirements was provided to the veteran in October 2001, prior to the April 2002 rating action on appeal. However, the Board finds that any lack of full, pre- adjudication notice in this case does not prejudice the veteran in any way. As indicated above, the rating action, numerous RO letters, SOC, and SSOC issued between 2001 and 2005 have repeatedly explained to the veteran what was needed to substantiate his claim. As a result of RO development and the Board's November 2003 Remand, comprehensive documentation, identified below, has been associated with the claims file and considered in evaluating the veteran's appeal. The RO most recently readjudicated the veteran's claim on the merits in March 2005 on the basis of all the evidence of record, as reflected in the SSOC. Additionally, the Board finds that all necessary development of the claim has been accomplished. The RO, on its own initiative as well as pursuant to the Board Remand, has made reasonable and appropriate efforts to assist the appellant in obtaining evidence necessary to substantiate his claim, to include obtaining extensive service and post-service VA and private medical records from the time of the veteran's military service to 2005. He was afforded a comprehensive VA examination in November 2004. Hence, the Board finds that any failure on the part of VA in not completely fulfilling any VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2004). Under these circumstances, the Board finds that the veteran is not prejudiced by adjudication of the claim on appeal, at this juncture, without directing or accomplishing any additional notification and/or development action. II. Background The service medical records show that, in June and July 1945, the veteran was hospitalized at a Naval Training Center for symptoms of headache, chills, and fever initially diagnosed as acute catarrhal fever. The lungs were clear on examination. The diagnosis was subsequently changed to measles, and the veteran was discharged to duty. The respiratory system, bronchi, lungs, and pleura were normal on July 1946 separation examination, and chest X-rays were negative. Service medical records include no documentation of treatment or diagnosis of pneumonia. Other service records document the veteran's service aboard the USS Williams, the USS Pritchett, and the USS Suesens during his active naval service during World War II. The RO in April 2002 indicated that the veteran's exposure to asbestos while on those ships may be conceded. Post-service medical records of the Logan General Hospital show a diagnostic impression of acute bronchitis in March 1999, and hospitalization in October 2001 for right lower lobe pneumonia, chronic obstructive pulmonary disease (COPD), bilateral pleural effusions, and congestive heart failure. Early bronchitis was found in March 2002. On examination of the veteran, R. Toparis, D.O., found acute bronchitis in July 2002, pneumonia in January 2003, and acute bronchitis and COPD in October 2003. Chest X-rays during hospitalization at the Charleston Area Medical Center in November 2001 indicated COPD and findings of bibasilar atelectasis with small bilateral pleural effusions. Hospitalization in September 2002 showed findings of severe shortness of breath, bibasilar infiltrates (possibly pulmonary edema), and hypoxemia. The final diagnoses included severe left ventricular dysfunction with congestive heart failure. The final diagnoses after hospitalization from December 2002 to January 2003 included right-sided pneumonia and COPD. The veteran gave a past medical history of asbestosis during hospitalization in October 2003, and the final diagnoses included congestive heart failure, asbestosis, and COPD. The final diagnoses following hospitalization in August and September 2004 included congestive heart failure, COPD, and pulmonary congestion. Pursuant to the Board Remand, in November 2004, a VA physician examined the veteran in connection with his claim for service connection for a pulmonary disability related either to pneumonia or asbestos exposure during military service. The examiner reviewed pertinent aspects of the veteran's military and medical history, noting initial hospitalization in June 1945 for what was believed to be catarrhal fever, and a change of diagnosis to measles in July 1945. Current pulmonary function tests showed severe obstructive disease, and chest X-rays revealed pleural scarring at the left base, with no evidence of pleural plaque calcifications or acute disease process. The doctor reviewed the medical records in the claims file of the veteran's recent hospitalizations and noted that there were no indications in any of the records of any examinations, such as CT studies or chest X-rays, that would prove a current diagnosis of asbestosis. The current diagnoses were history of catarrhal fever during military service that was later changed to a diagnosis of measles; and given exposure to asbestos aboardship in the navy, with no calcified pleural plaquing on chest X-rays and no definitive studies showing asbestosis in the claims file. In a December 2004 addendum to the November 2004 examination report, the VA physician documented the results of a recent CT chest scan and opined that there were no calcified plaques typical of asbestos exposure. In a May 2005 addendum to the above examination report, the VA physician stated that there was no evidence on the veteran's examination or chest X-ray of asbestos exposure, and no findings of asbestosis on the chest X-ray or chest CT examination; there were no calcified plaques. The CT findings did indicate a tumor mass in the left lower lobe, but there were no findings of diffuse interstitial disease that would indicate asbestos exposure. The diagnoses were left lower lobe tumor that appeared to be malignant, with pulmonary functions likely reflected by the presence of the tumor, and not related to or aggravated by asbestos exposure during military service; and COPD that was not related to or aggravated by the veteran's exposure to asbestos during military service. There were no other pulmonary diagnoses. III. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that there is no statute specifically addressing asbestos and service connection for asbestos- related diseases, nor has the VA promulgated any specific regulations for these types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, a recent opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on inservice asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a pulmonary/respiratory disability, claimed as a residual of asbestos exposure, under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos- related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Veteran's Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the its claim-development procedures). With these claims, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre- service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). In this case, the veteran claims service connection for a pulmonary/respiratory disability that is a residual of pneumonia or asbestos exposure during his naval service. In this case, the veteran's service records, including medical records, are completely negative for findings or diagnoses of pneumonia or any other pulmonary/respiratory disorder. Although he was treated on one occasion in service for what was believed to be acute catarrhal fever, the lungs were clear on examination, and the diagnosis was subsequently changed to measles. The respiratory system, bronchi, lungs, and pleura were normal on July 1946 separation examination, and chest X-rays were then negative. Private medical records show the onset of various respiratory disorders beginning in 1999, some 53 years post service. Specific to the asbestos aspect of the claim, the Board points out, as noted above, exposure to asbestos during service has been conceded. However, there is no competent and probative evidence that he currently has a pulmonary/respiratory disability that is a residual of asbestos exposure in service. The only competent and persuasive evidence that addresses the question of whether the veteran currently suffers from a pulmonary/respiratory disorder that is related to in-service asbestos exposure are the 2004 and 2005 opinions of the VA examiner, and those opinions squarely militate against the claim for service connection. As noted above, the VA physician reviewed the veteran's entire claims file and found no documentation therein of any chest X-ray or CT scan that documented evidence of asbestosis, including the current chest X-ray and CT scan. The doctor also found no nexus between any current pulmonary/respiratory disability of the veteran and asbestos exposure during military service. The Board finds the comprehensive 2004 VA respiratory examination report with subsequent addenda to be of great probative value and dispositive of the question of service connection, inasmuch as they were based on a thorough review of the entire claims file containing the veteran's documented service and post-service medical history and current examination of the veteran, and found no evidence that he has or ever has had a pulmonary/ respiratory disorder that is a result of asbestos exposure in service. These medical opinions constitute the only persuasive medical opinions on the issue before the Board. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board notes that, in arriving at his opinions, the VA physician properly considered the factors contained in DVB Circular 21-88-8 and M21-1. Moreover, the Board is satisfied that the RO has complied with its claim-development procedures, and considered whether military records demonstrated evidence of asbestos exposure during service; developed whether there was pre-service and/or post-service occupational or other asbestos exposure; and determined whether there is a relationship between alleged asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. The Board has considered the veteran's assertions in connection with the claim on appeal. However, as a layman without appropriate medical training and expertise, he is not competent to render a probative opinion on a medical matter- such as whether he currently suffers from a pulmonary/respiratory disability that is a residual of pneumonia or exposure to asbestos during his military service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). In view of the competent and persuasive medical evidence indicating that the veteran does not currently suffer from any pulmonary/respiratory disorder that is a residual of pneumonia or exposure to asbestos in service, the Board finds that the claim for service connection for a pulmonary/respiratory disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a pulmonary/respiratory disability, claimed as a residual of pneumonia or as due to asbestos exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs