Citation Nr: 0528386 Decision Date: 10/21/05 Archive Date: 11/01/05 DOCKET NO. 04-36 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for emphysema as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Carla J. Palmer, Associate Counsel INTRODUCTION The veteran had active service from October 1953 to September 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the benefit sought on appeal. The record reflects that the veteran requested a Board hearing via videoconference in October 2004. However, the veteran indicated that he no longer wanted a hearing before the Board in correspondence dated in November 2004. Accordingly, the veteran's hearing request is withdrawn. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent medical evidence of record reveals that the veteran is currently diagnosed with emphysema. 3. There is no competent medical evidence of record that shows that the veteran's emphysema has been determined to be etiologically related to the veteran's military service, including his claimed asbestos exposure. CONCLUSION OF LAW Emphysema was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (deciding that a complying notice need not necessarily use the exact language of the regulation so long as that notice properly conveys to a claimant the essence of the regulation). The Board finds that VA has fulfilled its duty to notify under the VCAA. In correspondence dated in April 2003, the RO apprised the veteran of the information and evidence necessary to substantiate his claim, which information and evidence that he was to provide, and which information and evidence that VA will attempt to obtain on his behalf. Quartuccio, 16 Vet. App. at 187. In addition, the April 2003 VCAA notice requested that the veteran send medical evidence that shows diagnosis of the disease he claimed was caused by asbestos and evidence that emphysema existed from military service to the present. A follow-up duty to assist letter dated in March 2004 advised the veteran of what the evidence must show to establish entitlement to compensation benefits for his claim. The Board acknowledges that the April 2003 VCAA notice contained no specific request for the veteran to provide any evidence in the veteran's possession that pertained to the claim or something to the effect that the veteran give VA everything he had that pertained to his claim. 38 C.F.R. § 3.159 (b)(1) (2005). However, the RO asked the veteran for all the information and evidence necessary to substantiate his claim-that is, evidence of the type that should be considered by VA in assessing his claim. A generalized request for any other evidence pertaining to the claim would have been superfluous and unlikely to lead to the submission of additional pertinent evidence. Mayfield, 19 Vet. App. at 126-27. Furthermore, the Board observes that the March 2004 letter specifically asked the veteran to send any information or evidence in his possession that he believed would support his claim. Therefore, it can be concluded, based on the particular facts and circumstances of the case, the omission of the request for "any evidence in the claimant's possession that pertains to the claim" in the April 2003 VCAA notice did not harm the veteran, and it would be legally proper to render a decision in the case without further notice under the regulation. Id. The Board finds that VA has fulfilled its duty to notify. The RO provided the veteran with a copy of the September 2003 rating decision, the March 2004 Statement of the Case (SOC), and the September 2004 Supplemental Statement of the Case (SSOC), which included a discussion of the facts of the claim, notification of the basis of the decision, and a summary of the evidence used to reach the decision. The March 2004 SOC also provided the veteran with notice of all the laws and regulations pertinent to his claim. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO obtained the veteran's service medical records and followed up with the veteran regarding his request for a hearing before the Board. As noted above, the veteran withdrew his request. The RO also afforded the veteran a medical examination in August 2004. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Accordingly, the Board will proceed with appellate review. II. Evidence In a May 2003 statement, the veteran contended that he was exposed to asbestos during service. He explained that he removed asbestos from steam pipes while welding and patching "busted lines." He also wrote that he served as a pipefitter aboard the USS De Kalb County (LST-715) and USS Balduck APD-132. In the VA Form 9 dated in October 2004, the veteran explained that he believed that his exposure to asbestos while in service "contributed directly" to his lung disorder. Service medical records do not reflect any complaints or treatment for any respiratory disorder. The records reflect that the veteran underwent medical examinations during service in April 1953, October 1954, and August 1957. Each of the respective medical examination reports reveal that the veteran's lungs and chest were evaluated as normal. Also, the veteran's October 1954 medical history report notes that the veteran had whooping cough at five years of age; it was noted that he showed "no residual." The DD Form 214 shows that the veteran was assigned to the USS De Kalb County (LST-715). A December 1995 letter written by Dr. B.B. advises that the veteran had been evaluated and diagnosed with severe obstructive lung disease. The veteran filed his claim for service connection of emphysema in April 2003. A June 2003 private medical report shows that the veteran reported that he was being treated for emphysema. He also indicated that he was on oxygen, as needed, and inhalers. A May 2004 radiology report reads that an x-ray of the veteran's chest showed several focal areas of pleural thickening most of which demonstrated some calcification probably reflecting pleural plaque formation. The examining physician noted that the multiple probable pleural plaques "probably" reflected an asbestos-related disease. In a July 2004 exam request report, the RO wrote that it was conceding the veteran's exposure to asbestos because the veteran was a pipe fitter aboard a ship in the Navy. In August 2004, the veteran underwent a VA medical examination. The examination report notes that the veteran reported that he was a welder on a ship for 18 months where he repaired steam pipes wrapped with asbestos in 1957. He also relayed that he did not wear protective respiratory protection while working as a pipe fitter. In addition, the veteran reported that he had been diagnosed with emphysema in 1989. He further explained that an x-ray taken in 2003 showed spots on his lungs; the doctor told him that it could be asbestos-related. Also, the veteran informed the VA examiner that prior to 1998, he had a "40 pack smoke year history." Chest x-rays revealed that the veteran's lung fields were emphysematous. There was no focal mass, infiltrate or pleural effusion identified. The VA examiner wrote that an x-ray of the veteran's chest showed emphysematous changes; a B-reader x-ray revealed no definite radiographic evidence for asbestosis. The VA examiner concluded that the veteran suffered from emphysema, "primarily obstructive type." The VA examiner further concluded that it was "less likely as not" that the veteran's obstructive lung disease was caused by his exposure to asbestos in service. He reasoned that the veteran had an obstructive type of lung disease; yet, asbestosis causes restrictive lung disease. In addition, he noted that that the b-reader chest x-ray of the veteran did not show evidence of lung damage from asbestos exposure. III. Legal Criteria 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(a) (2005). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2005). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2005). The Board observes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases which provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A. § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; 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). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21-1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1, part VI, para. 7.21(a)(1). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. IV. Analysis The medical evidence of record shows that the veteran has been diagnosed with emphysema. Specifically, the August 2004 VA examination report reveals that the veteran has emphysema, the obstructive type. Thus, the medical evidence shows a current disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). There is no evidence of record that shows treatment for or findings of a respiratory disorder during service; however, the record does show that the RO has conceded that the veteran was exposed to asbestos during service because he served as a pipe fitter aboard a ship. Nonetheless, there is no medical evidence showing a causal relationship between the veteran's currently diagnosed emphysema and his exposure to asbestos during service. As noted above, the VA examiner concluded that the veteran's obstructive lung disorder was "less likely as not" due to his exposure to asbestos during military service because asbestosis causes restrictive, rather than obstructive, lung disease. He additionally noted that x-rays did not show evidence of lung damage due to asbestos exposure. There is no medical opinion to the contrary of record. Thus, the Board finds the VA examiner's opinion dispositive on the question of whether the veteran's emphysema is related to asbestos exposure during service. The Board acknowledges that a private physician indicated that multiple probable pleural plaques shown on a chest x-ray probably reflected an asbestos-related disease; however, he offered no opinion regarding a causal link between the probable presence of pleural plaques and the veteran's asbestos exposure in service. Although the veteran contends that that his emphysema was caused by his exposure to asbestos during service, the Board notes that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Because the evidence does not show that the veteran is a medical expert, his assertions of a relationship between his emphysema and exposure to asbestos during service cannot be considered competent evidence of such a relationship. Moreover, the Board notes that there is no evidence of record that otherwise links the veteran's emphysema to his military service. Accordingly, service connection is not warranted. 38 C.F.R. § 3.303 (2005). As a preponderance of the evidence is against the veteran's claim, the "benefit of the doubt" doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for emphysema is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs