Citation Nr: 0527080	
Decision Date: 10/05/05    Archive Date: 10/17/05

DOCKET NO.  04-15 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUE

Entitlement to service connection for a respiratory 
disability.


REPRESENTATION

Veteran represented by:	Antonio E. Bendezu, Attorney 
at Law


ATTORNEY FOR THE BOARD

D. Hachey, Associate Counsel







INTRODUCTION

The veteran served on active duty from November 1946 to 
October 1966.

This case comes before the Board of Veterans' Appeals (the 
Board) on appeal from an April 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Lincoln, Nebraska (the RO).

Procedural history

The RO received the veteran's service connection claim for a 
respiratory disability in March 2003.  The April 2004 rating 
decision denied the claim.  The veteran disagreed with the 
April 2004 rating decision and initiated the instant appeal.  
The appeal was perfected by the veteran's timely filing of 
his substantive appeal (VA Form 9) in September 2004.

Other matter

The Board also notes that the veteran has perfected an appeal 
of a February 2003 rating decision which denied the claim for 
a rating higher than 10 percent for tinnitus.  The United 
States Court of Appeals for Veterans Claims (the Court) 
issued a decision in Smith v. Nicholson, No. 01-623 (U.S. 
Vet. App. April 5, 2005), that reversed a decision of the 
Board which concluded that no more than a single 10-percent 
disability evaluation could be provided for tinnitus, whether 
perceived as bilateral or unilateral, under prior 
regulations.  

VA has disagreed with the Court's decision in Smith and is 
seeking to have this decision appealed to the United States 
Court of Appeals for the Federal Circuit.  To avoid burdens 
on the adjudication system, delays in the adjudication of 
other claims, and unnecessary expenditure of resources 
through remand or final adjudication of claims based on court 
precedent that may ultimately be overturned on appeal, the 
Secretary of Veterans Affairs has imposed a stay at the Board 
on the adjudication of tinnitus claims affected by Smith.  
The specific claims affected by the stay include (1) all 
claims in which a claim for compensation for tinnitus was 
filed prior to June 13, 2003, and a disability rating for 
tinnitus of greater than 10 percent is sought; and (2) all 
claims in which a claim for service connection for tinnitus 
filed prior to June 10, 1999, was denied on the basis that 
the veterans' tinnitus was not "persistent" for purposes of 
38 C.F.R. § 4.87, Diagnostic Code (DC) 6260.  Because the 
veteran filed the claim for an increased rating for tinnitus 
in January 2003, his claim is subject to the stay imposed by 
the Secretary.  Once a final decision is reached on appeal in 
the Smith case, the adjudication of any tinnitus cases that 
have been stayed will be resumed.  


FINDINGS OF FACT

1.  The veteran refused without good cause or adequate reason 
to report for a VA respiratory examination scheduled in 
January 2004.  He has indicated he does not want a VA 
examination.

2.  There is no competent medical evidence showing that the 
veteran has a respiratory disability.  


CONCLUSION OF LAW

A respiratory disability was not incurred in or aggravated by 
the veteran's military service.  38 U.S.C.A. §§  1110, 1131 
(West 2002); 38 C.F.R. § 3.303 (2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran is seeking entitlement to service connection for 
a respiratory disability, which he claims is secondary to in-
service asbestos exposure.

In the interest of clarity, the Board will review the 
applicable law and regulations, briefly describe the factual 
background of this case, and then proceed to analyze the 
claim and render a decision.

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the provisions of the 
Veterans Claims Assistance Act of 2000 (VCAA) [codified as 
amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107) (West 
2002)].  The VCAA 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.  Regulations implementing the VCAA have been 
enacted.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [to be 
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
and 3.326(a)].

The Board has carefully considered the provisions of the VCAA 
and the implementing regulations in light of the record on 
appeal, and for reasons expressed immediately below finds 
that the development of this issue has proceeded in 
accordance with the provisions of the law and regulations.

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

As noted above, the concept of a well-grounded claim was 
eliminated by the VCAA.  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.  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.  38 
U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2004) 
[reasonable doubt to be resolved in veteran's favor].  In 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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.  
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 VA 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 
claim.  See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 
3.159(b)(1) (2004).  The Board observes that the veteran was 
notified by the September 2004 statement of the case (SOC) 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.  

More significantly, a letter was sent to the veteran in 
December 2003, which was specifically intended to address the 
requirements of the VCAA.  The December 2003 letter from the 
RO specifically notified the veteran that to support a claim 
for service connection, the evidence must show that "[y]ou 
had an injury in military service or a disease that began in 
or was made worse during military service, or that there was 
an event in service which caused injury or disease;" "a 
current physical or mental disability;" and "a relationship 
between your current disability and an injury, disease, or 
event in military service."

Second, the RO must inform the claimant of the information 
and evidence VA will seek to provide.  See 38 U.S.C.A. § 5103 
(West 2002); 38 C.F.R. § 3.159(b)(1) (2004).  In the December 
2003 VCAA letter, the veteran was informed that "VA is 
responsible for getting the following evidence: evidence held 
by a federal agency or department and [a] VA examination i[f] 
deemed necessary to evaluate your disabilities."  The 
veteran was also advised that "VA will make reasonable 
efforts to get the following evidence: private treatment 
reports for which you've signed a release (VA Form 21-
4142)."  The veteran was also notified that VA would assist 
him "by providing a medical examination or getting a medical 
opinion if we decide it's necessary to make a decision on 
your claim."  Moreover, the veteran was told that "we're 
requesting . . . your service medical records or other 
military records, and medical records at VA hospitals."

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 C.F.R. § 3.159(b)(1) (2004).  
The December 2003 letter notified the veteran that he "must 
give us enough information about your records so that we can 
request them from the person or agency that has them . . . 
[i]t'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 in original).  The December 
2003 letter also asked the veteran to provide details 
regarding his claimed in-service asbestos exposure including 
where he was exposed, when he was exposed, and how he was 
exposed.  The letter also asked the veteran to provide "the 
names of other service persons who were with you at the time 
of exposure" together with details about his pre and post 
service work history.

Finally, the RO must request that the claimant provide any 
evidence in his possession pertaining to the claim.  See 38 
U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2004).  
The December 2003 letter included notice that the veteran 
should "send us any medical reports you have."  He was 
further advised to "[p]lease review your records and make 
certain you haven't overlooked any important evidence."  The 
Board believes that these requests substantially comply with 
the requirements of 38 C.F.R. § 3.159 (b) in that they 
informed the veteran that he could submit or identify 
evidence other than what was specifically requested by the 
RO.

In short, the record indicates that the veteran received 
appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio.

One final comment regarding notice is in order.  A review of 
the record reveals that the veteran was provided notice of 
the VCAA prior to the initial adjudication of his claim (by 
the April 2004 rating decision).  Therefore, there is no 
prejudice to the veteran in proceeding to consider his claim 
on the merits.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

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 
evidence of record (lay or medical) includes competent 
evidence that the claimant has a current disability, or 
persistent or recurrent symptoms of disability; and indicates 
that the disability or symptoms may be associated with the 
claimant's active military, naval, or air service; but 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 all relevant evidence necessary for an 
equitable resolution of the issue on appeal has been 
identified and obtained, to the extent possible.  The 
evidence of record includes service medical records, service 
personnel records, extensive VA treatment records, and 
private medical records from the Howard County Medical 
Clinic.  Neither the veteran nor his attorney has indicated 
that any other pertinent evidence exists which has not 
already been obtained.

As noted above, the veteran refused to report for a VA 
respiratory examination scheduled in January 2004.  The 
record indicates that the veteran cancelled the January 2004 
examination and informed VA personnel that he did not wish to 
reschedule.  No explanation for this cancellation or the 
veteran's apparent refusal to report for an examination has 
been provided by the veteran or his attorney.  The 
consequences for the veteran's failure to report for the 
January 2004 examination will be discussed in detail below.  

The Board adds that general due process concerns have been 
satisfied in connection with this appeal.  See 38 C.F.R. 
§ 3.103 (2004).  The veteran engaged the services of an 
attorney, was provided with ample opportunity to submit 
evidence and argument in support of his claim, and was given 
the opportunity to present testimony at a personal hearing if 
he so desired.  The veteran indicated in his substantive 
appeal that he did not want a hearing before the Board.  

Accordingly, the Board will proceed to a decision on the 
merits as to the issue on appeal.

Pertinent 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, 1131 (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).

The resolution of issues pertinent to a determination of 
entitlement to service connection must be considered on the 
basis of the places, types, and circumstances of service as 
shown by service records, the official history of each 
organization in which the veteran served, and all pertinent 
medical and lay evidence.  Determinations relative to service 
connection will be based on review of the entire evidence of 
record.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 
3.303(a) (2004); see Wilson v. Derwinski, 2 Vet. App. 16, 19 
(1991).

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).  

Service connection presupposes a current diagnosis of the 
claimed disability.  
See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992).

Service connection - asbestos exposure

There is no specific statutory guidance with regard to 
asbestos-related claims, nor has the Secretary 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 M21-1, 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 applicable section of Manual M21-1 also notes that some 
of the major occupations involving exposure to asbestos 
include mining, milling, work in shipyards, 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 and pipe products, military equipment, etc.  High 
exposure to respirable asbestos and a high prevalence of 
disease have been noted in insulation and shipyard workers, 
and this is significant considering that, during World War 
II, U.S. Navy veterans were exposed to chrysotile, amosite, 
and crocidolite that were used extensively in military ship 
construction.  Furthermore, it was revealed that many of 
these shipyard workers had only recently come to medical 
attention because the latent period for asbestos-related 
diseases 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.

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court 
found that provisions in former paragraph 7.68 (predecessor 
to paragraph 7.21) of VBA Manual M21-1, Part VI, did not 
create a presumption of exposure to asbestos.  Medical-nexus 
evidence is required in claims for asbestos related disease 
related to alleged asbestos exposure in service.  VA O.G.C. 
Prec. Op. No. 04-00.

In short, with respect to claims involving asbestos exposure, 
VA must determine whether or not military records demonstrate 
evidence of asbestos exposure during service, develop whether 
or not 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.  M21-1, Part VI, 7.21; DVB Circular 21- 
88-8, Asbestos-Related Diseases (May 11, 1988).

Failure to report for VA examination - service connection 
claims

The consequences of failing to report for a VA examination 
are outlined in 38 C.F.R. § 3.655 (2004).  This section 
provides:

(a) General.  When entitlement or continued entitlement to a 
benefit cannot be established or confirmed without a current 
VA examination or reexamination and a claimant, without good 
cause, fails to report for such examination, or 
reexamination, action shall be taken in accordance with 
paragraph (b) or (c) of this section as appropriate.  
Examples of good cause include, but are not limited to, the 
illness or hospitalization of the claimant, death of an 
immediate family member, etc. For purposes of this section, 
the terms "examination" and "reexamination" include 
periods of hospital observation when required by VA. 

(b) Original or reopened claim, or claim for increase.  When 
a claimant fails to report for an examination scheduled in 
conjunction with an original compensation claim, the claim 
shall be rated based on the evidence of record.  When the 
examination was scheduled in conjunction with any other 
original claim, a reopened claim for a benefit which was 
previously disallowed, or a claim for increase, the claim 
shall be denied.  

Analysis

The veteran seeks service connection for a respiratory 
disability, which he claims is the result of in-service 
asbestos exposure.  As noted above, the veteran cancelled a 
January 2004 VA examination and indicated that he did not 
wish to attend any future VA examinations regarding this 
issue.  No reason for the veteran's refusal to report for VA 
examinations has been provided by the veteran or his 
attorney.  According to the provisions of 38 C.F.R. § 3.655, 
the Board will proceed to adjudicate the veteran's service 
connection claim based on the evidence of record, despite the 
absence of a VA examination.

As discussed above, in order to establish service connection 
for the claimed disorder, there must be (1) medical evidence 
of a current disability; (2) evidence of the in-service 
incurrence or aggravation of a disease or injury; and (3) 
medical evidence of a nexus between (1) and (2).  See 
Hickson, supra.  

With respect to Hickson element (1), VA treatment records 
indicate that that the veteran suffers from occasional 
shortness of breath; however, no underlying diagnosis for 
this symptomatology has been identified by any of the private 
or VA treatment records.  With his claim, the veteran 
submitted a March 2003 statement from K.K., a registered 
nurse, who opined that "I do feel that [the veteran's] 
shortness of breath may he related to [his] asbestos exposure 
while . . . on Board ships in the Navy."  However, the nurse 
did not provide a diagnosis of a respiratory disability, and 
subsequent VA treatment records also fail to reflect such a 
diagnosis.    Moreover, December 2000 chest X-rays revealed 
that the lungs were clear without focal infiltrate, pulmonary 
edema, or pleural effusion.  The Court has made clear on 
numerous occasions that symptoms alone, without a diagnosed 
or identifiable underlying malady or condition, do not in and 
of themself constitute a disability for which service 
connection may be granted.  See Sanchez-Benitez v. West, 13 
Vet. App. 282 (1999).  In the absence of a diagnosed 
respiratory disability, service connection may not be 
granted.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 
1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) 
[service connection cannot be granted if the claimed 
disability does not exist].  

To the extent that the veteran and his attorney contend that 
the veteran has a current respiratory disability (including 
an asbestos-related condition), it is now well established 
that laypersons without medical training, such as the veteran 
and his attorney, are not competent to comment on medical 
matters such as diagnosis, date of onset, or cause of a 
disability.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-
5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent 
medical evidence means evidence provided by a person who is 
qualified through education, training, or experience to offer 
medical diagnoses, statements, or opinions].  Their 
statements offered in support of this claim are therefore not 
competent medical evidence and do not serve to establish the 
existence of a current disability.

Since Hickson element (1) has not been met, further analysis 
of the claim is not needed.  The veteran's claim fails on 
this basis alone.  While the scheduled VA examination may 
very well have provided evidence of a current respiratory 
disability, the veteran cancelled the examination and made 
clear his intention not to report for further examination.  
No explanation for such cancellation or refusal to reschedule 
has been provided.  See Wood v. Derwinski, 1 Vet. App. 190, 
193 (1991) [holding that the duty to assist "is not always a 
one-way street" . . . [i]f a veteran 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"].  In light of the veteran's refusal to 
attend a VA examination, without any explanation, further 
expending of VA resources and further scheduling of VA 
examinations are not warranted.

In short, the crucial but missing element in this case is 
evidence of a current disability.  Regardless of any asbestos 
exposure the veteran may have had during service, exposure, 
in and of itself, is not a compensable disability, and there 
must be medical evidence showing the veteran has incurred 
residual disability due to that exposure.  The benefit sought 
on appeal must be denied for the reasons given above.  There 
is no benefit of the doubt that can be resolved in the 
veteran's favor, since there is no competent evidence showing 
he has a current disability.


ORDER

Service connection for a respiratory disability is denied.

	                        
____________________________________________
	Michelle Kane
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs