Citation Nr: 0530162 Decision Date: 11/10/05 Archive Date: 11/30/05 DOCKET NO. 04-19 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for asbestosis as a result of asbestos exposure. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Carla J. Palmer, Associate Counsel INTRODUCTION The veteran had active service from January 1959 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon that denied the veteran's claim for service connection. In June 2005, the veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. The Board also received additional evidence from the veteran at the June 2005 Travel Board hearing, which was accompanied by a waiver of the RO's right to initial consideration of the new evidence. See Board of Veterans' Appeals: Obtaining Evidence and Curing Procedural Defects, 69 Fed. Reg. 53,807 (Sept. 3, 2004) (to be codified at 38 C.F.R. §§ 19.9, 20.1304(c)). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. 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 is not currently diagnosed with asbestosis. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 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 November 2001, 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 November 2001 VCAA notice requested that the veteran submit evidence that he was exposed to asbestos while on active duty and a disability was caused by such exposure. The Board acknowledges that the November 2001 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. 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 November 2001 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. In addition, the RO provided the veteran with a copy of the October 2002 rating decision, and the March 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 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 private medical records dated from September 1992 to January 2005. The RO also scheduled for the veteran a hearing before the Travel Board. In addition, the RO submitted a request to verify the veteran's claimed exposure to asbestos and associated pertinent service records with the claims file. The Board notes that the veteran, through his representative, has requested that VA provide him with another medical examination. Under the VCAA, VA is required to provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2005). The RO has afforded the veteran two medical examinations conducted in July 2002 and June 2003, respectively. The June 2003 examination report reveals that the examiner reviewed the veteran's claims file, conducted a thorough examination, and offered a medical opinion. Moreover, the record contains sufficient competent medical evidence to decide the claim. Therefore, the Board finds that VA is under no duty to afford the veteran a new examination or obtain another medical opinion. 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 veteran's service medical records do not reflect a diagnosis or treatment of a respiratory disorder. The January 1959 examination report shows that the veteran's lungs and chest were evaluated as normal when he entered service. Chest x-rays of the veteran taken in February 1959, October 1959, and September 1960 reveal "negative" findings. Upon separation from service in January 1961, the veteran's lungs and chest were evaluated as normal. The veteran's DD 214 shows that he served in the Navy as a cadet engineer aboard the U.S.S. Herbert J. Thomas (DDR 833). In September 1992, a private pulmonologist, Dr. M.C., noted that chest x-rays of the veteran taken in July 1992 showed parenchymal abnormalities consistent with asbestosis. He also wrote that there were no pleural abnormalities; there was evidence of interlobar pleural thickening. In January 1993, Dr. M.C. performed "an asbestos evaluation" of the veteran. He noted that the veteran reported that his duties as a machinist mate in the Navy included removing asbestos to replace steam valves and working "in dry dock tearing insulation from around the turbines." The veteran also indicated that he was exposed to asbestos after service while working in the sheet metal trade. Dr. M.C. noted that the veteran demonstrated an "extensive history of asbestos exposure with evidence of mild asbestosis radiographically." He recommended that the veteran undergo a yearly chest x-ray for cancer surveillance. He also concluded that the veteran had mild obstructive airways disease secondary to cigarette smoke. In June 1996, the veteran was evaluated for possible "occupational lung disease" by a private pulmonologist, Dr. D.E.W. The examination report noted that chest x-rays showed interstitial markings that were finely prominent in both mid and lower zones. The pulmonologist concluded that the "abnormal radiological finding" shown on the veteran's chest x-ray was compatible with mild/early pulmonary asbestosis. The veteran filed a claim for service connection of asbestosis in August 2001. In his claim, the veteran contended that he was exposed to asbestos while serving for two years aboard a ship during military service. He also attached correspondence regarding his lawsuit against the manufacturers of asbestos materials. In April 2002, the veteran completed a Asbestos Exposure Questionnaire explaining that he was exposed to asbestos while working as a machinest mate aboard the U.S.S. Herbert J. Thomas. He also noted that he was exposed to asbestos after service while working in construction. In July 2002, the veteran underwent a VA examination. The July 2002 VA examination report reveals that the VA examiner, Dr. A.D., reviewed medical records from previous pulmonologists brought by the veteran to the examination; the claims file and other medical records were unavailable for review. The VA examiner noted that the veteran had wheezing on exertion and some dyspnea on exertion. The VA examiner wrote that medical records indicated a diagnosis of mild asbestosis in the past. In addition, he commented that asbestosis, in addition to chronic obstructive pulmonary disease (COPD), was likely a contributing factor to the veteran's dyspnea on exertion. He added that the veteran's in-service asbestos exposure "would have been at least a contributing factor, though probably fairly minor contributing factor" to his respiratory symptoms. It is also noted that the VA examiner "will check a chest x-ray and pulmonary function tests." An August 2002 addendum to the examination report notes that the veteran's chest x-ray was normal and pulmonary function tests revealed a "mild ventilatory impairment normal FEV/FVR 72%." A VA radiologist, Dr. D.W.L., conducted a PA and lateral chest examination of the veteran in July 2002. He wrote that there were scattered tiny calcified granulomas in the left and right lung bases. He additionally noted that the veteran showed no acute cardiopulmonary disease and that the veteran's chest radiograph was "unremarkable." A July 2002 VA treatment report notes that the veteran had a "daily, productive cough, with dyspnea on exertion." The VA primary care physician, Dr. D.F.S., wrote that he informed the veteran that these symptoms were probably related to chronic bronchitis and reactive airway disease due to his heavy smoking history, rather than asbestosis. In October 2002, a VA pulmonary and critical care physician, Dr. W.E.H., reviewed the records of the veteran and noted that it was not clear that the veteran had asbestosis. He explained that the diagnosis of asbestosis required a significant history of asbestos exposure, dyspnea on exertion, rales on physical examination, a gas exchange abnormality, and evidence for dependent (basilar) interstitial lung disease. Although the veteran showed a significant asbestos exposure history and dyspnea on exertion, there was no evidence of a gas exchange abnormality or rales on physical examination. The evidence was inconclusive regarding the findings of interstitial lung disease. Consequently, he indicated that a CT scan that confirmed interstitial changes in the lung bases accompanied by an increased alveolar to arterial gradient for oxygen and reduced total lung capacity would allow a diagnosis of asbestosis. He added that it would be "impossible" to know the relative contribution of the veteran's in-service and his occupational asbestos exposure, respectively, to an asbestos- related lung disease. The veteran reported for another VA examination in June 2003. A CT chest x-ray and pulmonary function studies were performed. The June 2003 radiology report noted that there was very minimal dependent density, likely representing atelectasis. It is also noted that there was trace pleural thickening on the right posteriorly in the mid lung region, without evidence for calcified pleural plaques. In the examination report dated in August 2003, Dr. W.E.H. noted that the CT scan did not confirm interstitial lung disease that would be consistent with asbestosis. He also noted that there was minimal pleural scarring consistent with (although not entirely characteristic of) exposure to asbestos. In addition, he wrote that the alveolar to arterial gradient for oxygen was slightly increased and that pulmonary function tests confirmed a normal total lung capacity with reduced (mild) forced vital capacity and slightly increased residual volume. He further concluded that the data, "particularly the CT findings lacking interstitial fibrosis and the normal total lung capacity," do not support a diagnosis of asbestosis. In January 2005, the veteran underwent a posteroanterior and lateral chest examination. Under the "history/diagnosis" section of the radiology report, cough and asbestosis were noted. The private radiologist listed COPD, atherosclerotic vascular disease and stable chest as his impressions of the x-ray. In the June 2005 hearing transcript, the veteran stated that he suffered from wheezing and coughing and that he expectorated mucus. The veteran's wife added that for the last 8 to 9 years, the veteran's colds develop into "a combination of bronchitis, pneumonia, and asthma." She also reported that the veteran experienced chest pain and pressure and episodes of nosebleeds. The veteran and his wife attributed his respiratory disorder to his in-service asbestos exposure. In addition, the veteran stated that he initially filed a claim with VA for service connection of asbestosis in 1997 or 1999. This claim is not of record. 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 veteran contends that asbestosis resulted from his exposure to asbestos during service. His DD 214 notes that he served as a cadet engineer aboard a ship. There are no pertinent findings of respiratory problems during service. The current medical evidence of record fails to show a diagnosis of asbestosis. The August 2003 VA examination report shows, among other things, that the veteran demonstrated minimal pleural scarring "consistent with (although not entirely characteristic of) exposure to asbestos." However, the VA pulmonologist reviewed the veteran's claims file and ultimately concluded that the cumulative data resulting from the examination did not support a diagnosis of asbestosis. He specifically cited the CT findings lacking interstitial fibrosis and the normal total lung capacity of the veteran as support for his conclusion. Although the July 2002 VA examination report includes a diagnosis of mild asbestosis, it was based on a review of the medical records brought by the veteran to the examination. The claims file was not reviewed and diagnostic tests had not yet been performed. The August 2002 addendum to the July 2002 VA examination report notes that the veteran's chest x-ray was normal and that the pulmonary function tests revealed mild ventilatory impairment with normal FEV/FVR. While the January 2005 radiology report submitted by the veteran in support of his claim lists asbestosis as a part of his diagnosis history, the impressions of the chest x-ray do not reflect such a diagnosis. Rather, the radiologist concluded that the veteran showed chronic obstructive pulmonary disease, atherosclerotic vascular disease, and stable chest. The Board acknowledges that there is medical evidence of record that the veteran had been diagnosed with asbestosis in the past. In September 1992, a private pulmonologist, Dr. M.C., noted that chest x-rays of the veteran showed parenchymal abnormalities consistent with asbestosis. Approximately a year later, he evaluated the veteran and again concluded that he demonstrated evidence of mild asbestosis radiographically. Additionally, a second private pulmonologist, Dr. D.E.W., concluded that a chest x-ray of the veteran revealed interstitial markings compatible with mild/early pulmonary asbestosis in June 1996. More recent examinations of the veteran (which are comprehensive and include all necessary respiratory testing) do not, however, reflect current asbestosis. The Board finds that this evidence to be most probative. Lastly, the Board recognizes that the veteran believes that he has asbestosis as a result of his exposure to asbestos during service; however, he lacks the necessary medical expertise to diagnose a specific medical disorder or conclude any condition. Grottveit v. Brown, 5 Vet.App. 91 (1993). Without competent medical evidence that the veteran currently suffers from asbestosis, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs