Citation Nr: 0607019 Decision Date: 03/10/06 Archive Date: 03/23/06 DOCKET NO. 05-18 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to a compensable rating for bilateral pterygia. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service from August 1945 to February 1949, from June 1950 to April 1954, and from September 1954 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The veteran has a current diagnosis of asbestosis. 2. The veteran's asbestosis was caused by his active military service from August 1945 to February 1949, from June 1950 to April 1954, or from September 1954 to October 1967. 3. The evidence does not show that the veteran's bilateral pterygia causes loss of vision. CONCLUSIONS OF LAW 1. Service connection for asbestosis is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2005); 38 C.F.R. § 3.303. 2. The criteria for a compensable rating for bilateral pterygia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.84a, Diagnostic Code (DC) 6034 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). 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). 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). An August 2004 VA respiratory examination diagnosed the veteran with asbestosis. A chest x-ray was performed in August 2004, and the results were inconclusive because they did not show whether the veteran had lung masses or calcified pleural plaques. The radiologist recommended a CT scan of the veteran's thorax. The RO stated in its May 2005 statement of the case (SOC) that the veteran did not report for the CT scan. However, there is record of a February 2004 CT scan of the veteran's chest from a VA Medical Center (VAMC). The CT scan showed numerous areas of pleural thickening with pleural plaque formation. Throughout the plaques, there was extensive calcification. There were substantial soft tissue components within the plaques which had not calcified. The results of the CT scan do not exclude mesothelioma, but they do not specifically identify it, either. The provisional diagnosis from the February 2004 CT scan was asbestosis. These medical examinations and records are entitled to great probative weight and provide evidence in favor of the claim. Thus, it is found that the veteran has a current diagnosis of asbestosis. 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). In this case, the veteran claims that he was exposed to asbestos during his active duty while serving aboard destroyers and a refrigeration ship in the Navy during the 1940s. The veteran's service personnel records show that he was an electrician and that he did serve on a destroyer, a destroyer escort, and a refrigerated transport during his service in the Navy from August 1945 to February 1949. As an electrician on several Navy ships in the 1940's, the Board will concede that the veteran was most likely exposed to asbestos during that time. Given that he served on World War II era ships and worked as an electrician, exposure to asbestos would seem likely based on the duties of an electrician. Because the veteran has a current diagnosis of asbestosis, the Board has conceded asbestos exposure, and the records fails to indicate a post-service cause, the Board finds that the evidence supports service connection for asbestosis. 38 U.S.C.A. § 5107(b). In adjudicating this claim, the Board has considered the doctrine of reasonable doubt. As the U.S. Court of Appeals for Veterans Claims (Court) has written: A unique standard of proof applies in decisions on claims for veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact-finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Based on the above, the service connection claim is granted. Service connected disabilities ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2005). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). If two evaluations are potentially applicable, the higher one will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran asserts that he is entitled to a compensable rating for his service-connected bilateral pterygia, currently assigned a noncompensable evaluation. He is currently assigned noncompensable rating under Diagnostic Code (DC) 6034, pterygium. 38 C.F.R. § 4.84a. Under DC 6034, the rater is instructed to rate for loss of vision, if any. Field loss may be used as a basis to evaluate this disability, as well as impairment of visual acuity. 38 C.F.R. §§ 4.76, 4.76a. In rating impairment of visual acuity, the best distant vision obtainable after best correction with glasses will be the basis of rating. Id. The veteran's August 2004 VA eye examination showed the veteran's corrected vision to be 20/30 in his right eye and 20/60 in his left eye. The minimum compensable vision is 20/40. Because the veteran's left eye is worse than 20/40, but 20/60 is not specified in the rating schedule, the Board will round up his right eye up to 20/70. Under DC 6079, a veteran could receive a 10 percent rating for vision in one eye at 20/70 and in the other at 20/40. However, the veteran does not meet these criteria since his better eye is corrected to 20/30 and does not meet the minimum compensable threshold of 20/40. The veteran had surgery for bilateral pterygia while on active duty. The August 2004 VA eye examination notes that the veteran has cataracts and any vision loss that he has is because of them, and not his bilateral pterygia or the surgery he had while in the military. The VA eye examination is entitled to great probative weight and provides evidence against the claim. The post-service medical records, as a whole, are consistent with the VA examination report and provides, as a whole, only more evidence against this claim. Because the veteran does not have loss of vision sufficient to warrant a compensable evaluation, and any loss of vision he may have is due to his cataracts, a compensable evaluation for bilateral pterygia is denied. 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 letters dated in May and September 2004, as well as information provided in the Mary 2005 SOC, the RO advised the veteran of the evidence needed to substantiate his claims 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 May 2005 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 two VCAA notice letters prior to the December 2004 adverse determination on appeal. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The May 2004 VCAA letter does not specifically ask the veteran to provide any evidence in his possession that pertains to the claim. Id. at 120-21. However, the September 2004 VCAA letter, which was issued before the adverse determination on appeal, did make the specific request. The Board is aware of the recent decision in Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3, 2006) (Hartman, No. 02-1506) regarding notice requirements. Based on a review of this decision, the Board finds no basis to remand this case to the RO for additional development. Simply stated, based on the notice already provided to the veteran cited above, a further amended notice to the veteran would not provide a basis to grant this claim. 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, VA medical records, private medical records, and VA examinations. 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 asbestosis is granted. Entitlement to a compensable rating for bilateral pterygia is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs