Citation Nr: 0605797 Decision Date: 03/01/06 Archive Date: 03/14/06 DOCKET NO. 04-44 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of asbestos exposure, to include lung and breathing problems. ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service from February 1973 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jacksonville, Mississippi. 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 competent medical evidence, as a whole, supports the finding that the veteran does not have a current disability related to asbestos exposure in service. CONCLUSION OF LAW Service connection for residuals of asbestos exposure, to include lung and breathing problems, is not established. 38 U.S.C.A. §§ 1110, 5107 (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 (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. For the showing of chronic disease in service, there is a required 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). 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). 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 evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). 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, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The first requirement for any service connection claim is competent evidence of existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 2 Vet. App. 492, 494 (1992). The competent medical evidence of record does not indicate that the veteran has a current disability. A July 1995 private medical record from Baptist Memorial Hospital shows that the veteran was seen for a painful cough and complained of having back pain and possible pleurisy for two days. He was diagnosed with an upper respiratory infection and chest wall pain. The medical record also reported that the veteran was a smoker at that time. Baptist Memorial Hospital was the only hospital the veteran specified on his release form. The other private health care provider he listed responded that they had no records for him. Overall, post-service medical records provide evidence against this claim. The report from Baptist Memorial Hospital is the only medical evidence of record. The veteran does not receive VA medical treatment. The medical record provides very negative evidence against a finding that the veteran has a lung disability or breathing problem at this time. The Board observes that the veteran checked "yes" for asthma on his 1973 enlistment report of medical history, but the examiner elaborated that the veteran had it when he was six to 12 years old. The veteran's separation physical stated that he had "diffuse expiratory wheezes" and a history of asthma. He was diagnosed with mild asthma, not considered disqualifying. The Board also observes that the veteran was treated once in service for chest wheezes. He was declared fit for duty and was not seen again for chest problems while on active duty. Aside from his enlistment and separation physical examinations and one sick call in July 1973, there is no evidence of a current disability. Service medical records are found to provide much evidence against this claim. With regard to the veteran's own opinion, the Board finds that the veteran does not have the medical knowledge to diagnose his own condition. 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"). Post-service records, indicating that the veteran has sued others for an alleged lung disorder related to exposure to asbestos products well after service, provides only more negative evidence to this claim. The Board finds that the preponderance of the evidence is against granting service connection for a lung disability or breathing problem. 38 U.S.C.A. § 5107(b). 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 October 2002, as well as information provided in the October 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 October 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 October 2002, prior to the July 2003 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 October 2002 VCAA notice and the October 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). With respect to the duty to assist, the RO has secured the veteran's service medical records, service personnel records, 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. The Board notes that an etiological opinion has not been obtained. However, the Board finds that the evidence, discussed above, which indicates that the veteran did not receive treatment for the claimed disorder during service or that there is any competent medical evidence showing or indicating a nexus between service and the disorder at issue, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4) (2005). As service and post-service medical records provide no basis to grant this claim, and provide evidence against the claim, the Board finds no basis for a VA examination to be obtained. ORDER Service connection for residuals of asbestos exposure to include lung and breathing problems is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs