Citation Nr: 0602453 Decision Date: 01/27/06 Archive Date: 02/07/06 DOCKET NO. 02-12 691A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a lung disorder, to include bronchitis, emphysema, and chronic obstructive pulmonary disease (COPD), claimed as due to inservice exposure to asbestos and tobacco use. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from April 1946 to October 1947. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This case was remanded by the Board in November 2003 and has now been returned for appellate adjudication. FINDINGS OF FACT 1. The veteran's claim for service connection for pulmonary disease due to tobacco use was received after June 9, 1998. 2. The veteran smoked tobacco products during service and for many years after service but there is no competent evidence that he was exposed to asbestos during service. 3. The veteran first developed pulmonary symptoms and pathology many years after military service and his emphysema, bronchitis, and COPD are not related to his military service and are not due to alleged inservice asbestos exposure. CONCLUSIONS OF LAW 1. Because the claim for service connection for a lung disorder, to include bronchitis, emphysema, and COPD, was received after June 9, 1998, there is no legal basis for compensation based on tobacco use in service, and this claim is dismissed. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2005). 2. The veteran does not currently have asbestosis, or other chronic pathology, including his current bronchitis, emphysema, and COPD, as a residual of a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA became effective on November 9, 2000, and describes VA's duties 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) (2004). Upon receipt of a complete or substantially complete application, VA must inform the claimant of information and medical or lay evidence not of record: (1) necessary to substantiate the claim; (2) that VA will seek to obtain; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186- 87 (2002). See also Valiao v. Principi, 17 Vet. App. 229, 332 (2003) (implicitly holding that RO decisions and statements of the case may satisfy this requirement). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) ("Pelegrini II"); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Here, the claim was initially denied in August 2000 as not well grounded. This was prior to the November 2000 enactment of the VCAA and, thus, it was impossible to provide notice of the VCAA prior to the enactment thereof. However, the claim was subsequently readjudicated on the merits in March 2002 and the veteran was notified of the VCAA enactment in the June 2002 Statement of the Case and again in an April 2004 letter from the VA Appeals Management Center (AMC), pursuant to the November 2003 Board remand. In Mayfield v. Nicholson, 19 Vet. App. 103 (2005), it was held that, even if there was an error in the timing of the VCAA notice, i.e., it did not precede the initial RO adjudication, it could be cured by affording the claimant a meaningful opportunity to participate in VA's claim processing such that the essential fairness of the adjudication was unaffected. The veteran's service medical records (SMRs) are not obtainable, apparently having been destroyed in a fire at the National Personnel Records Center (NPRC), which indicated that there were also no records at the Office of the Surgeon General (SGO). In December 2001 the Bluemound Medical Center indicated that there were no additional records at that facility, although the veteran previously submitted some records from that facility, as well as records from the St. Lukes Medical Center. In January 2002 the veteran's service representative stated that, after consulting with the veteran, there were no additional private clinical records to be submitted. Also, the veteran stated in April 2000 that he now received all of his treatment from VA. As to this, his voluminous VA outpatient treatment records are on file. The appellant also underwent a VA pulmonary examination in February 2005. 38 U.S.C.A. § 5103A(d). The more recent statements and correspondence from the veteran and his representative do not make reference to or otherwise mention any additional treatment from other sources (e.g., private or non-VA, etc.). Further, although offered, the veteran declined his opportunity for a hearing to provide oral testimony in support of his claim. Accordingly, no further development is required to comply with the VCAA or the implementing regulations. And the appellant is not prejudiced by the Board deciding the appeal without first remanding the case to the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Analysis Service connection may be granted for current disability resulting from an injury sustained or a disease contracted while on active duty in the military or while on active duty for training or inactive duty training in the reserves. 38 U.S.C.A. §§ 101, 1110; 1131 38 C.F.R. § 3.303(a); see, too, Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999); Rose v. West, 11 Vet. App. 169, 171 (1998); Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may be granted for any disease initially diagnosed after discharge from service 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); see also Godfrey v. Brown, 7 Vet. App. 398, 406 (1995). "A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000)). Also found at Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In determining whether service connection is warranted for a disability alleged, VA is responsible for considering evidence both for and against the claim. If the evidence, as a whole, supports the claim or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is against the claim, then it must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Competent medical evidence is required to establish the existence of current disability and a nexus between such current disability and military service. This type of medical nexus evidence is necessary to substantiate lay allegations because laypersons do not have the professional medical training and/or expertise to render competent medical diagnoses or opinions. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494, 95 (1992); see, too, Layno v. Brown, 6 Vet. App. 465 (1994); Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Hasty v. Brown, 13 Vet. App. 230 (1999). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). The Court has held that the M21-1 does not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see 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); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to the disability at issue was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 4-2000 (April 13, 2000), VA's General Counsel held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. Even assuming that the veteran was exposed to asbestos during service, the evidence still does not show he ever had any pathological changes of his lung tissue consistent with asbestos exposure. In other words, the M21-1 provides that a clinical diagnosis of asbestosis requires, not only a history of exposure but also radiographic evidence of parenchymal lung disease. And, here, there has never been a diagnosis suggesting the veteran had asbestosis. The veteran does not contend that he developed pulmonary symptoms or pulmonary pathology during service. Consistent with this is the fact that there is no clinical evidence of pulmonary symptoms or pathology until the earliest clinical records in the mid-1980s. Thereafter, he had been treated for emphysema, bronchitis, and COPD. A February 2000 VAOPT record reflects that he had emphysema and felt that his having begun smoking during service might be the cause for some of his health problems. On VA pulmonary examination in February 2005 the veteran's claims file and VA medical records were reviewed. The evidence on file prior to that examination reflects that he had stopped smoking years earlier, after he developed emphysema. The diagnosis was severe COPD likely secondary to a 60 pack history of tobacco use. It was noted that he had associated emphysematous changes and was taking medication for an infection. There was no evidence of pleural plaquing to suggest previous exposure to asbestos. It was noted that a pulmonary consultation found that his current emphysema and COPD were likely a result of tobacco use. There is no independent corroboration of the allegation that the veteran was exposed to asbestos while being transported on ships during World War II. There is also no evidence of pre-service or post-service asbestos exposure. Also, even assuming, without conceding, that the veteran was exposed to asbestos insulation while being transported on ships during World War II, consistent with the M21-1, there is no medical nexus evidence linking this exposure and his subsequent terminal lung cancer. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Also, there is evidence that the veteran has smoked cigarettes which is responsible for his current bronchial and upper airway symptoms. So, service connection for a lung disorder, to include bronchitis, emphysema, and COPD, claimed as due to inservice exposure to asbestos is not warranted. Nicotine Dependence In 1998, Public Law No. 105-206 (a bill relating to the Internal Revenue Service) added section 1103 to 38 U.S.C.A. that prohibits service-connected disability and death benefits based on tobacco use. In 2001, section 3.300 was added to 38 C.F.R. implementing the law, effective from June 10, 1998. See 66 Fed. Reg. 18195- 18198 (April 6, 2001). In Kane v. Principi, 17 Vet. App. 97 (2003) the U.S. Court of Appeals for Veterans Claims (Court) noted that 38 U.S.C.A. § 1103(a) states that "disability or death shall not be considered to have resulted from [] the line of duty [] on the basis that it resulted from [] the use of tobacco products [] during the veteran's service" and that the effective date of 38 C.F.R. § 1103(a) was June 9, 1998. The Court upheld the validity of the implementing regulation, at 38 C.F.R. § 3.300(a) and (c), and the June 9, 1998, effective date of those regulatory provisions, even though the regulation was published after that date. 38 C.F.R. § 3.300(a) states that: For claims received by VA after June 9, 1998, a disability or death will not be considered service- connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 C.F.R. § 3.300(c) states that: For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under 38 C.F.R. § 3.310(a). Here, the veteran's original claim for any VA disability compensation, including the claim currently on appeal, was received in February 2000 and was after the June 9, 1998, cut-off date. So service connection cannot be granted for a lung disorder, to include bronchitis, emphysema, and COPD, claimed as due to inservice tobacco use under these circumstances as the law and regulation in effect after June 9, 1998, specifically prohibits this. When, as here, the law and not the facts are dispositive of the claim, it must be dismissed-analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim for service connection for a lung disorder, to include bronchitis, emphysema, and COPD, claimed as due to inservice tobacco use is dismissed. The claim for service connection for a lung disorder, to include bronchitis, emphysema, and COPD, claimed as due to inservice exposure to asbestos, is denied. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs