Citation Nr: 0605746 Decision Date: 03/01/06 Archive Date: 03/14/06 DOCKET NO. 03-05 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from October 1962 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. FINDINGS OF FACT 1. All available information and evidence necessary for an equitable disposition of the issue decided herein have been obtained. 2. The veteran does not have asbestosis or any other asbestos-related disease. 3. The veteran has chronic obstructive pulmonary disease (COPD) and asthma, but the medical evidence, as a whole, supports a finding that the disorders are not related to his military service from October 1962 to May 1965, including claimed asbestos exposure. CONCLUSION OF LAW A respiratory disorder, to include asbestosis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (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 requires a finding of the existence of a current disability and a determination of a relationship between that disability and injury or disease incurred in service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Watson v. Brown, 4 Vet. App. 309, 314 (1993). To establish service connection, there must be: (1) A medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumption period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Savage, 10 Vet. App. at 496-97. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Id. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 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 have been 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. 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 these 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 military records demonstrate evidence of asbestos exposure during service, develop whether 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, based on a review of all statements from the veteran, lay statements submitted by the veteran (including the April 2002 statement of "N.G.H."), the veteran's service records, and records both he and the United States Army has provided, the Board finds that the veteran's had very limited asbestos exposure, if any, during his military service in a building in Arlington, Virginia. While the Board has reviewed the veteran's statements, his own contentions do not indicate the magnitude of exposure as compared to veterans who worked in mining, milling, working in shipyards, doing insulation work, demolishing old buildings, or who worked in carpentry, construction, or manufacturing. His exposure to asbestos was, at best, limited, providing factual evidence against this claim. The Board must also note that a medical consultation dated December 1999 cites post-service asbestos exposure. While the exposure appears limited, it clearly provides more factual evidence against this claim. Beyond the above, there is the question of whether the veteran has asbestosis. In reviewing this question, the Board has reviewed all medical records, including the VA examination reports and the private medical opinions the veteran has submitted, including all post-service medical records. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Based on a review of the medical evidence in this case, the Board finds that the veteran does not have asbestosis at this time. The medical opinion of Drs. "H.C., M.D." and "J.T.S., M.D." are found to be clearly outweighed by the VA medical opinions of June 2004 and January 2002. The VA medical opinions provide a detailed examination and a clear review of the medical record, which included x-rays studies, while the November 1995 opinion of Dr. S. is, at best, unclear, and the September 2000 medical opinion of Dr. C. does not clearly explain why he believes the veteran has this condition, as opposed to COPD. Such a finding provides more evidence against this claim. Even if you consider the veteran's current respiratory disabilities, the post-service medical records, indicating a condition that began decades after service, provides more evidence against this claim. 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). The veteran himself is not competent to diagnose the etiology of his own disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Given all of these factors, the Board finds that the negative evidence in this case outweighs the limited and highly unprobative evidence that supports this claim. While the Board has reviewed all written statements submitted by the veteran, and his testimony, the Board finds that the veteran's central theory in this case is highly speculative, based on very limited exposures (if any) to asbestos many many years ago, followed by exposure to asbestos after service. Beyond this, the medical evidence as a whole, including service medical records, post-service medical records, and two medical opinions weigh heavily against the veteran's belief that he has a condition related to service caused by this exposure. In this case, for the reasons and bases discussed above, a reasonable doubt does not exist regarding the veteran's claim that he currently has an asbestos-related disease. There is not an approximate balance of evidence. There is evidence not favorable to the claim that is of more probative value than the favorable evidence, and it is not error for the Board to favor certain evidence. The weight to be accorded the medical evidence must be determined by the quality of it and not by quantity. For the reasons stated, the Board finds the opinion of the VA examiners are more persuasive than the other opinions, and finds, as fact, that the veteran does not have a current asbestos-related disability. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The Board finds that the VCAA notice requirements have been satisfied by virtue of a letters sent to the veteran in January 2005, October 2003, and April 2001. As these letters fully provide notice of elements (1), (2), and (3), see above, it is not necessary for the Board to provide extensive reasons and bases as to how VA has complied with the VCAA's notice requirements. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In addition, by virtue of the rating decision on appeal, the statement of the case (SOC), and the supplemental statements of the case (SSOC), the veteran was provided with specific information as to why his claim was being denied, and of the evidence that was lacking. He was also supplied with the complete text of 38 C.F.R. § 3.159. Finally, with respect to element (4), the Board notes that the RO's letters, the SOC, and the SSOC generally informed the veteran that it was necessary to send any evidence in his possession that supported his claim to VA. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. The Board is mindful that, in concluding that the VCAA notice requirements have been satisfied, the Board has relied on communications other than the RO's formal VCAA notice letter to the appellant. However, at bottom, what the VCAA seeks to achieve is to give the appellant notice of the elements outlined above. Once that has been done - irrespective of whether it has been done by way of a single notice letter, or via more than one communication - the essential purposes of the VCAA have been satisfied. Here, the Board finds that, because each of the four content requirements of a VCAA notice has been met, any error in not providing a single notice to the appellant covering all content requirements was harmless. See, e.g., 38 C.F.R. § 20.1102 (2005); Mayfield, supra. The veteran has not claimed that VA has failed to comply with the notice requirements of the VCAA. The Court's decision in Pelegrini II held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits, and that was done in this case in April 2001. In any event the Board finds that any defect with respect to the timing of all the VCAA notices was harmless error. After the notice was provided, the case was readjudicated by the RO. The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. He was given ample time to respond. For these reasons, to decide the appeal would not be prejudicial error to the claimant. ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs