Citation Nr: 0529028 Decision Date: 10/28/05 Archive Date: 11/09/05 DOCKET NO. 04-34 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for asbestosis, restrictive lung disease. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Carla J. Palmer, Associate Counsel INTRODUCTION The veteran had active service from March 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that denied the veteran's claim for service connection. In August 2005, the veteran testified before the undersigned Acting Veterans Law Judge via videoconference. The transcript of the hearing is associated with the claims file and has been reviewed. Based on a September 2005 motion, this appeal has been advanced on the docket because of financial hardship. 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2005). 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 shows that the veteran's currently diagnosed asbestosis, restrictive lung disease is not related to his military service. CONCLUSION OF LAW Asbestosis, restrictive lung disease was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 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 2004, 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. The April 2004 VCAA notice also advised the veteran of what the evidence must show to establish service connected compensation benefits. Furthermore, the RO requested that the veteran send any evidence or information in his possession that he believed would support his claim. In addition, the RO provided the veteran with a copy of the July 2004 rating decision, and the August 2004 Statement of the Case (SOC), 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 August 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 VA outpatient treatment records dated from April 2001 to July 2004. The RO also scheduled a Board hearing by videoconference for the veteran that was held in August 2005. In addition, the RO submitted a request to verify the veteran's claimed exposure to asbestos. In May 2004, the RO obtained pertinent service records. 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 The service medical records do not reflect a diagnosis or treatment of a respiratory disorder. The November 1968 examination report reveals that the veteran's lungs and chest were clinically evaluated as normal when he entered service. An April 1969 service treatment record shows that the veteran complained of chest pain; the examiner noted that the veteran's heart and lungs were normal. An annual chest x-ray conducted in April 1970 showed results that were "essentially negative." The November 1970 separation examination report also noted that the veteran's lungs and chest were clinically evaluated as normal. The veteran's DD 214N shows that he served in the Navy as a fireman and served aboard the USS Affray (MSO-511). The service personnel records show that the veteran also served aboard the USS Ozark (MCS-2). There are no service records that document the veteran's exposure to asbestos during service. Private medical records dated from April 2002 to January 2004 include documentation of a diagnosis of asbestosis and provide information regarding the veteran's exposure to asbestos after service. In April 2002, a private radiologist, Dr. F.M.D., noted that fairly extensive pleural thickening was seen on both chest walls. There were mild interstitial changes in the lung bases bilaterally consisting of irregular linear opacities. Dr. F.M.D. concluded that the interstitial and pleural changes were consistent with asbestosis given an appropriate exposure history and latency. A May 2002 letter written by a private physician, Dr. S.D.P., reveals that the veteran reported that he worked in the mechanical department of a railroad company from 1977 to 1995. His weekly duties included welding and "burning," the removal of asbestos-containing insulation from pipes on trains, and the use of "asbestos-containing grinding disks." In addition, he replaced "brake shoes" that contained asbestos and had "direct contact" with air hoses that had asbestos. It is noted that no respiratory protection was used. The May 2002 letter also shows that the veteran had a history of smoking up to 1 pack per week for 10 years, but quit smoking in 1990. The physician wrote that pulmonary function tests revealed a moderate restrictive ventilatory defect. He concluded the veteran had mild asbestosis and fairly extensive pleural thickening related to asbestos exposure. In March 2003, a private radiologist, Dr. F.M.D., conducted a PA and lateral chest examination of the veteran and compared results with prior December 2001 chest films. He concluded that the veteran showed chronic interstitial and pleural changes, stable since the prior study, findings consistent with asbestosis given an appropriate exposure history and latency with no evidence for progression. In a May 2003 letter, a lung and critical care specialist (Dr. J.A.B.) noted that the veteran was diagnosed with asbestosis and had a "very significant asbestos exposure history where he worked as a mechanic changing brake pads." The veteran's smoking history was noted as "very insignificant." The examination report also noted that laboratory data showed a restrictive lung disease. The veteran also underwent a CT scan of the chest in May 2003 as ordered by Dr. J.S. The July 2003 examination report noted that the veteran demonstrated minimal nonspecific subpleural stranding in the lung bases. The examining physician concluded that there was no evidence for significant interstitial lung disease, focal pleural thickening or calcification to indicate asbestosis. In January 2004, a private radiologist, Dr. L.A.V., conducted a PA and lateral chest examination of the veteran as ordered by Dr. S.D.P. It is noted that there were no previous films available for comparison. The examination report reveals that the veteran's lungs showed no consolidation or interstitial edema. There was some subtle pleural thickening noted in the left lower lung field. The radiologist concluded that the veteran demonstrated, among other things, cardiomegaly and focal pleural thickening along the lower left hemithorax. Approximately a week later, Dr. F.M.D. reviewed the PA and chest films taken the previous week and compared them to prior films of March 2003 and April 2002. He noted that he continued to see bibasilar interstitial changes consisting of irregular linear opacities and pleural plaques with thickening on the chest walls similar to the prior studies. He further added that such results would be consistent with asbestosis given an appropriate exposure history and latency. A January 2004 examination report written by Dr. S.D.P. noted that he had previously ordered the chest x-ray because pulmonary function tests had revealed a "moderately severe restrictive ventilatory defect." He wrote that the first radiology report was inadequate because the chest x-ray had not been compared with previous studies. After comparison with prior chest x-rays, Dr. S.D.P. agreed with the second interpretation and concluded that the veteran had "asbestosis and pleural plaques related to asbestos exposure." He also referenced his previous letter describing the veteran's occupational history as it related to his history of exposure to asbestos. The veteran filed a claim for entitlement to service connection for his respiratory disorder in April 2004. Statements from the veteran's children and siblings, which were received in July 2004, note that the veteran has difficulty breathing. In the July 2004 notice of disagreement (NOD), the veteran contended that he was "around a lot of welding" and breathed in dust particles while serving aboard the USS Ozark MCS-2 and USS Affray MSO 511. He noted that he worked for a railroad company for 18 1/2 years but maintained that he was first exposed to asbestos in the military. He explained that his duties as a fireman required that he work in the engine room, which contained dust from the asbestos, and "blow off with air the machinery." He added that he did not wear a protective mask. In addition, he reported that he had to repair and insolate the water pipes and air ducts. He also attached generic literature regarding asbestosis-related disease. In the September 2004 VA Form 9, the veteran maintained his in-service exposure to asbestos and toxic chemicals resulted in his asbestosis. He reported that his duties as a fireman aboard the USS Ozark and USS Affray included cleaning machinery in the engine and boiler rooms. In addition, he reported that he was exposed to welding dust and debris as well as diesel and jet fuels during service. In the August 2005 hearing transcript, the veteran indicated that he had filed a claim for asbestosis against the railroad company, which resulted in summary judgment. The veteran explained that he had previously signed a release form that prevented any future compensation for claims associated with his work for the railroad. He reported that he signed the release form before learning of his diagnosis of asbestosis. 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 (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 that 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. Moreover, it is recognized that the Board has the authority to assess the credibility and probative value of evidence in determining the question of service connection. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (stating that the Board may favor one medical opinion over another provided that it offers sufficient reasons or bases). IV. Analysis The claims file reveals that the veteran has been diagnosed as having asbestosis, which was first noted in April 2002. Most recently, a January 2004 examination report also reveals a diagnosis of asbestosis after comparing the chest x-rays to prior studies. Additionally, it is noted that he showed a moderately severe restrictive ventilatory defect. The Board acknowledges that a July 2003 examination report reveals that a May 2003 CT scan of the veteran's chest showed no evidence of significant interstitial lung disease, focal pleural thickening or calcification to indicate asbestosis; however, the CT scan is not the most recent examination of record, did not compare results to prior findings, and was inconsistent with other prior assessments of the veteran. Id. Thus, the Board concludes that the most probative evidence establishes that the veteran currently has the disability at issue. 38 C.F.R. § 3.303 (2005). The Board observes that the veteran does not contend and the service medical records do not show that he was treated for or diagnosed as having a respiratory disorder in service. The veteran's lungs and chest were clinically evaluated as normal upon his separation from active duty. Furthermore, the record shows that the veteran was first diagnosed with asbestosis in 2002, approximately 32 years after his discharge from service. The veteran contends that he was first exposed to asbestos while working as a fireman during service and his diagnosis of asbestosis in 2002 falls within the applicable latency period. Nonetheless, the service records do not confirm asbestos exposure in service. There is evidence, however, that the veteran had "very significant" occupational exposure to asbestos after service. The record reveals that the veteran reported that he was frequently exposed to asbestos while working for a railroad company for over 18 years and did not wear respiratory protection during that time. Additionally, no competent medical evidence links the veteran's asbestosis, restrictive lung disease to his active service. Alternatively, the record reflects that medical findings of asbestosis were related to the veteran's work- related asbestos exposure after service. This conclusion is also supported by the fact that the veteran first filed a claim with the railroad company, rather than VA, for his asbestosis. Although the veteran maintains that that his respiratory disorder 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). Based on the foregoing, service connection is not warranted. 38 C.F.R. § 3.303 (2005). In conclusion, there is competent medical evidence of record showing that the veteran is diagnosed with asbestosis; however, there is no medical evidence that establishes a nexus between the veteran's respiratory disorder and his service. As such, the Board finds the preponderance of the evidence is against the claim for service connection for asbestosis, restrictive lung disease. Accordingly, the benefit-of-the-doubt doctrine is not applicable. 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 asbestosis, restrictive lung disease is denied. ____________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs