Citation Nr: 0603152 Decision Date: 02/03/06 Archive Date: 02/15/06 DOCKET NO. 04-29 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD) due to asbestos exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service from July 1974 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The RO has provided all required notice and obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran's current COPD began many years after service and was not caused by any incident of service, including asbestos exposure. CONCLUSION OF LAW COPD, claimed as due to asbestos exposure, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2005). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. At 495-97. Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). 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 were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The U.S. Court of Appeals for Veterans Claims (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 the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, Topic 29. It lists some of the major occupations involving exposure to asbestos, including 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. 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). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. 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. M21-1MR, Part IV, Supbart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). In this case, the veteran claims that he was exposed to asbestos during his active duty while serving aboard the USS Independence, which the veteran asserts was in dry dock for four or five months for an overhaul. The RO obtained the veteran's service personnel records (SPRs), and they contain no evidence of the veteran being exposed to asbestos or indications that the veteran's work during service would have lead him to extensive exposure to asbestos. Additionally, the veteran's service medical records (SMRs) show no complaints, findings, or diagnoses of any lung disorders, including COPD. Evaluations of the veteran during service make no reference to any such disorders, or indications of such disorders. His induction and separation examinations are negative for lung disorders. Clearly, the service records provide evidence against this claim. After leaving active service, the veteran worked in the electrical, heating, and air conditioning trades. He reported working mostly in supervisory positions in the portable storage trade. These facts provide negative evidence against this claim as they indicate that the veteran was able to function well after service. For example, the veteran has stated that he was short winded after his discharge from service, but did not seek medical help until many years later. However, his work history does not suggest such a difficulty. The first post-service medical evidence of a lung disorder was in March 2001, when the veteran was diagnosed with COPD by a private physician. This was many years after the veteran left service. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). After the March 2001 diagnosis, the veteran was referred to a pulmonologist, Dr. B., who stated that the veteran had asthma and COPD and he described the conditions as "mild" in a June 2001 letter. In the same letter, Dr. B. stated that because the veteran reported serving aboard the USS Independence while it was in dry dock, "it is always possible that he was exposed to asbestos, though I have no radiologic or clinical proof." Dr. B. concluded that it was "certainly possible" that some of the veteran's lung disorders are due in part to asbestos exposure. Although an examiner can render a current diagnosis based on his examination of a claimant, without a thorough review of the record, his opinion regarding etiology can be no better than the facts alleged by the claimant. See Swann v. Brown, 5 Vet. App. 229 (1993). The Board notes that there is no indication that Dr. B. reviewed the veteran's claims file, to include his service medical records, in providing his opinion. Further, the opinion is extremely vague. In this case, no one is suggesting that it is not "possible" that the veteran's service caused the condition at issue. However, the fact that a condition could, or was possibly caused by, service does not indicate that it is as least as likely as not that the condition was caused by service. Given such circumstances, the opinion as to the etiology of the veteran's COPD has little probative value in this matter. In fact, the very vague nature of the opinion provides, in the opinion of the Board, evidence that suggest that the private doctor does not believe that there is an association between the disorder and service. A June 2002 VA respiratory examination states that a radiographic examination of the veteran showed that his hemidiaphragms, cardiac silhouette, pulmonary vascularity, lung fields, medial stinal structures, and visualized bony thorax were all within normal limits. The veteran's spirometric testing was also normal. The veteran complained of shortness of breath upon exertion. The examiner noted that the veteran was obese, and that he was medicated prior to the examination, which may have caused his results to be more normal than usual. There is also no indication that the VA examiner reviewed the veteran's claims folder. This lessens the probative value of the VA respiratory examination. The VA examination does not conclude that COPD is a result of in-service asbestos exposure. Overall, the examination report provides evidence against this claim as it indicates the minimum nature of the disorder, many years after service. The weight of the competent evidence demonstrates that the veteran's current COPD began many years after service and was not caused by any incident of service, including asbestos exposure. The Board finds that the service and post-service medical records provides very negative evidence against this claim, indicating a minimal condition that began many years after service. The condition was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim for service connection for COPD, claimed as due to asbestos exposure, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by a letter dated in January 2002, as well as information provided in the June 2004 statement of the case (SOC), the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist the veteran in obtaining and what information or evidence the veteran was responsible for providing. In addition, the June 2004 SOC includes the text of the regulation that implements the notice and assistance provisions from the statute. Thus, the Board finds that the RO has provided all notice required by the VCAA. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board observes that the RO issued the VCAA notice in January 2002, prior to the adverse determination on appeal. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO did not specifically ask the veteran to provide any evidence in his possession that pertains to the claim. Id. at 120-21. However, the Board is satisfied that the January 2002 VCAA notice and the June 2004 SOC otherwise fully notified the veteran of the need to give VA any evidence pertaining to his claim, such that there is no prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Moreover, neither the veteran nor his representative has made any showing or allegation that the content of the VCAA notice resulted in any prejudice to the veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (the appellant bears the initial burden of demonstrating VA's error in the adjudication of a claim and how that error was prejudicial). The veteran has been notified of the applicable laws and regulations that set forth the criteria for entitlement to service connection for COPD in the January 2002 VCAA notice letter. With respect to the duty to assist, the RO has secured the veteran's service medical records, service personnel records, VA medical records, VA respiratory examination, and private medical records. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. ORDER Service connection for COPD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs