Citation Nr: 0607488 Decision Date: 03/15/06 Archive Date: 03/29/06 DOCKET NO. 02-09 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for asbestos lung disease. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from July 1955 to July 1958, with several periods of time lost during this period. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied an application to reopen a claim for service connection for asbestos lung disease as a result of asbestos exposure. In December 2002, the Board reopened and remanded the claim. FINDINGS OF FACT 1. All requisite notices and assistance to the appellant have been provided, and all evidence necessary for adjudication of the claim has been obtained. 2. The veteran served with the United States Navy from July 1955 to July 1958, with several periods of time lost during this period, and he states that he served in the engine room and as a fireman during that service. 3. The veteran underwent a left upper lobe lobectomy in 1976 and a right thoracotomy with wedge resection of the right upper lobe lesion in 1981. 4. The veteran's post-service respiratory and pulmonary conditions were manifested years after service and are not related to the veteran's service or to any incident therein, including any asbestos exposure; they have been related primarily to tuberculosis and tobacco abuse, and a thorough VA examination has specifically found no evidence of any asbestos-related disease. CONCLUSION OF LAW Asbestos lung disease was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2005); Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, 7.21 (Jan. 31, 1997); VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2005). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in January 2005 and March 2005; a December 2000 rating decision; a statement of the case in March 2002; and a supplemental statement of the case in August 2005. The Board also sent correspondence in March 2003. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Thus, VA has satisfied its duty to notify the appellant. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, available, relevant evidence. VA has also provided two examinations of the veteran. VA has satisfied both the notice and duty to assist provisions of the law. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). In addition, service connection may be presumed for certain chronic diseases, psychoses, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2005). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2005). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2005). "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service." Watson v. Brown, 309, 314 (1993). To establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, one of the requirements for service connection is competent evidence that a claimed disability currently exists. See Degmetich, supra; Brammer, supra. The determination is based on analysis of all the evidence and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure, as published in Department of Veterans Benefits Circular 21-88-8 (May 11, 1988) (DVB Circular). The DVB Circular was subsequently rescinded but its basic guidelines were published in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, 7.21 (Jan. 31, 1997) and have since been revised again in a rewritten version of M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). The Court held in Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997), that the Board must follow development procedures applicable specifically to asbestos-related claims. VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre- service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. The guidelines state that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. The guidelines state that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). They note that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. The guidelines note that occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. During World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). The guidelines also state that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease and signs and symptoms such as dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. In reviewing claims for service connection, it must be determined whether or not military records demonstrate asbestos exposure in service; it should be determined whether or not there was asbestos exposure pre- service and post-service; and it should be determined if there is a relationship between asbestos exposure and the claimed disease. The pertinent parts of the guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000, 65 Fed. Reg. 33422 (2000). There is no evidence or suggestion that the veteran had respiratory or pulmonary problems during his active service with the Navy. However, the veteran has an extensive history of post-service respiratory and pulmonary problems. While living in Detroit, Michigan, in 1976, the veteran was treated for breathing difficulties. He was admitted to the Detroit General Hospital in September 1976 with increasing pleuritic pain on the left side for about the past year. On admission, it was noted that he had had similar pains eight years ago and that an X-ray at that time had revealed a lung lesion. The veteran stated that in 1967, he had been seen for chest pains after picking up his child and had been told of having a mass; however, no work-up had been accomplished a that time. An X-ray in 1976 showed a granulomatous lesion in the left upper lobe basal segment with cavitation. However, no fibrotic changes were present; the X-ray report favored an inflammatory lung process with probable fungal origin as the etiology, but cancer could not yet be excluded. He underwent exploratory thoracotomy and left upper lobe lobectomy. The pathological specimen diagnoses were nodular, caseating, granulomatous inflammation of the left lung and nodular silicosis of the left lung. According to a February 1977 consultation, the veteran had had shortness of breath for about eight years. A September 1981 pulmonary function test was revealed moderate obstructive defect consistent with bronchitis, as well as a restrictive component that was possibly due to previous pulmonary resection and/or early fibrosis. A surgical pathology report of a specimen from the right lung lesion revealed focal mild to moderate interstitial fibrous and mild non-specific chronic inflammation, fibrous connective tissue and skeletal muscle from the chest wall. The veteran was admitted for a lung biopsy in November 1981, with Anthony J. Murgo, M.D., as the attending doctor. The veteran underwent a right thoracotomy with wedge resection of the right upper lobe lesion. The doctor noted that the veteran had undergone the left lower lobectomy because of subsequent pathologic findings of nodular silicosis with granulomatous infection. Another hospitalization consultation report noted that the veteran had been told that the disease for which he underwent surgery in Detroit had been due to silicosis; the veteran stated that he was unaware of any history of exposure to sandblasting or silica in other forms, but that he had a history of roofing in the past and tearing down four old homes. The examining doctor (Larry Edwards, M.D.) concluded that the veteran had probably been exposed to asbestos in the past; the doctor added that he had a history of waking up in sand after an alcoholic bout. The record includes the operative report and the surgical pathology report. Dr. Murgo wrote in December 1981 that he had been treating the veteran for a pulmonary nodule. He noted that pulmonary testing had been consistent with a restrictive defect and compatible with fibrosis or interstitial lung disease. However, after the veteran underwent a right upper wedge resection, the pathology of the surgically removed nodule showed a granuloma, and the veteran was started on anti- tuberculosis antibiotic therapy. The final discharge diagnosis was reactivation tuberculosis with right upper lobe granuloma. A doctor with the Tulsa City Council Health Department's division of Tuberculosis Control confirmed that the veteran had been found to have tuberculosis in his right lung in 1981 and that he had undergone a wedge resection of the upper lobe for the identified lesion. Additional VA and non-VA records from the 1980s and 1990s document respiratory problems such as shortness of breath with diagnoses of COPD and restrictive and obstructive lung disease. According to a January 1983 non-VA pulmonary consultation, the veteran reported that his respiratory difficulties had started in 1970 or 1971. On surgery in 1976, he had been found to have a caseating granuloma when the left lower lobe had been resected. The doctor noted that there had been some mention of silicosis of the left lung, but he specifically clarified that this had not been well documented. He also noted that a nodule removed with right thoracotomy and wedge resection in 1981 had been a caseating granuloma with evidence of tuberculosis. The impressions were pulmonary tuberculosis, under therapy; status post bilateral thoracotomy for pulmonary nodules, with a question of tuberculosis on both occasions; and restrictive ventilatory defect secondary to pulmonary tuberculosis, pleural disease, and thoracotomies. A May 1997 non-VA summary of the veteran's active problems listed a history of asbestosis with left lower lung lobectomy. A September 1987 chest X-ray showed bilateral interstitial changes and post-surgical changes. The diagnoses on VA examination in June 1994 were a history of nodular silicosis, a history of reactivation tuberculosis of the right upper lobe, and COPD. On a request for pulmonary function testing in June 1994, it was noted that the veteran had spent three years in the engine room and as a fireman during service and that he had had lung surgery on the left lower lobe in 1977 due to "stone dust." An August 1994 VA examination noted that a biopsy at Detroit General Hospital had revealed silicosis dust. The examiner noted that the veteran had worked as a painter once, but he denied exposure to asbestos. Diagnoses were status post partial pneumonectomies and a history of silicosis, tuberculosis, and tobacco abuse. A December 1998 VA X-ray revealed diffuse interstitial infiltrate that was probably idiopathic fibrosis; however, other types of abnormalities (such as parabronchial infiltrate or lymphangitic involvement) could not be excluded; further testing was recommended. The impression on general care in January 1999 was COPD with diffuse pulmonary fibrosis. A February 1999 VA chest X-ray showed bilateral diffuse infiltrates. On pulmonary consultation in March 1999, the veteran stated that he had been exposed to asbestos in service and that he had undergone a left lower lobe lobectomy in 1977 for asbestos at a non-VA hospital in Detroit, Michigan. His history also included having undergone a right thoracotomy with a right upper lobe wedge resection in 1990 at a non-VA facility in Tulsa, Oklahoma, that produced a positive result for tuberculosis. The impressions were history of asbestos exposure, left lower lobe resection for asbestos, right upper lobe wedge resection for tuberculosis, and mild to moderate COPD. A May 1999 VA CT scan showed surgical changes versus calcifications and/or scarring in the right upper lobe posteriorly, diffuse and bilateral pleural-based calcifications and small pleural effusions that were greater on the left. On an ensuing May 1999 VA pulmonary clinic evaluation, the examining VA doctor related the veteran's account that he had had a nodule removed from the left lower lobe in 1976 and that the nodule had been found to be due to asbestos exposure. The doctor noted that he had been unable to view the CT scan, but that he had read the CT scan report. The impression were restrictive and obstructive ventilatory defects with severe reduction in perfusion capacity. The doctor opined that the veteran had both pulmonary fibrosis that was probably related to asbestos exposure and COPD with a severe reduction in diffusing capacity. On treatment in August 2000, a non-VA doctor, Gary L. Templeton, M.D., rendered an impression of a combination of restrictive and obstructive lung disease on spirometry. He suspected that the veteran had COPD and asbestos lung disease. Significantly, however, he relied on a past medical history of asbestos lung disease, status post left lower lobe surgery in 1977, and a history of asbestos exposure during service. In November 2000, the doctor's impressions included a history of tuberculosis and possible pulmonary nodule versus pleural plaque; the doctor did not believe that it was a pleural plaque because the lesion moved on an expiratory VA film. He also diagnosed severe restrictive lung disease with interstitial changes on chest X-ray and a history of asbestos exposure in the Navy; he noted that a lung biopsy had reportedly been consistent with asbestosis exposure. The veteran and his representative have often cited to Dr. Templeton's in support of the claim. A January 2001 VA CT scan showed development of patchy bibasilar infiltrates, left greater than right. Non-VA medical records from 2002 to 2005 reflect treatment or various conditions, including COPD and pulmonary edema. Records from the St. John's Clinic from 2003 and 2004 reflect findings of basilar interstitial lung disease. In June 2004, he had an increase in left basal reticular pattern representing either progression of scarring or mild pneumonitis. On hospitalization in December 2004 and January 2005 for an acute myocardial infarction, several treatment records listed a diagnosis of a history of partial lobectomy secondary to asbestos-related lung disease. This evidence supports the veteran's claim in that some of the evidence attributes the veteran's pulmonary and respiratory problems to in-service asbestos exposure. But there is also significant contrary evidence. The veteran underwent VA respiratory examination by a nurse practitioner in March 2002. The diagnoses were severe obstructive pulmonary disease, nicotine addiction, currently smoking; obstructive and restrictive lung disease, as shown on pulmonary function tests since 1981; a history of tuberculosis with treatment; and silicosis per previous biopsy reports without any evidence of known exposure in his work history. The examiner stated that no biopsy findings at present were consistent with a diagnosis of asbestosis. But this examination was conducted before VA had obtained the majority of the relevant VA and non-VA medical records. Thus, the Board does not find this examination very probative. Also of note is an October 1997 examination in connection with an Social Security Administration claim by the veteran. The examining doctor indicated that the veteran was status post left lower lobectomy and right upper lobectomy for pneumoconiosis and tuberculosis. The doctor did not mention any asbestos-related reason for the left lung surgery; he also stated that the veteran had superimposed COPD from chronic tobacco abuse. However, the most probative of the evidence is the thorough and extensive VA pulmonary examination from April 2005. The examining VA doctor reviewed the veteran's pulmonary medical history including his reported history of asbestos exposure during service. Pulmonary function studies showed severe obstructive ventilatory defect, paradoxical response to bronchodilators, mild reduction, air-trapping, and severe diffusion defect. The diagnoses on examination were granulomatous lung disease, bilateral upper lung zone disease, that was secondary to tuberculosis with open lung biopsy and status-post left upper lobe resection; chronic obstructive lung disease that was secondary to smoking history with chronic bronchitis and emphysema; a history of probable asbestos exposure in the boiler room on his ships during service; restrictive and obstructive lung disease that was secondary to his two lung surgeries, resections, and decortication as well as underlying COPD; and chronic respiratory failure and dyspnea that were secondary to all the above diagnoses except for the history of possible asbestos exposure. The examining VA doctor noted that a CT scan did not show interstitial lung disease. On an earlier draft of the examination report, the doctor also noted that there was no mention of interstitial lung disease related to asbestos on any of his surgical specimens; one small area of nodular silicosis had been only an incidental finding and not a finding noted throughout the lung biopsies. He also noted that the severe diffusion defect was secondary to the restrictive and obstructive lung disease, but that he could not rule out underlying pulmonary vascular disease secondary to his COPD or, less likely, small chronic thromboemboli. The doctor concluded that the veteran's present condition was not caused by or a result of asbestos exposure. The doctor also commented that the veteran's present pulmonary status was due to his underlying chronic obstructive lung disease that was secondary to his cigarette exposure and due to the previous resectional surgery secondary to granulomatous lung disease (tuberculosis). On the earlier draft of the examination report, the doctor cited the medical literature reviewed. The doctor also specifically addressed the veteran's left upper lobe resection from 1976 and the right upper lobe resection from 1981. On review of the pathology specimens from those operations, the doctor found that there was nothing to suggest any asbestos fibers or any fibrosis relevant to asbestos exposure. Despite the numerous medical records, the April 2005 VA examination is very thorough and has addressed all of the previous medical evidence. The examiner's conclusion in April 2005 is based on a clear and extensive recitation and discussion of the various surgical, pathological, and other diagnostic reports from the veteran's medical records, including especially the reports from the 1977 and 1981 lung surgeries. The examiner discussed the medical bases for his conclusion that the veteran's respiratory and pulmonary problems were not related to any asbestos exposure. The examiner's conclusion is specific; he even addressed the incidental nature of earlier findings of nodular silicosis and set forth non-asbestos-related etiologies for the veteran's post-service respiratory and pulmonary problems. In light of the April 2005 VA examination, the Board need not address the subissues of the veteran's exposure to asbestos in service or VA's development of the case in accordance with the procedural guidelines in M21-1 or M21-1 MR. A remand would serve no useful purpose, since the April 2005 VA examination has definitively found no evidence of asbestos- related lung disease. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to legal requirements does not dictate unquestioning, blind adherence in face of overwhelming evidence in support of result in a particular case; such adherence unnecessarily imposes more burdens on VA with no benefit to veteran). In sum, the weight of the credible evidence demonstrates that the veteran did not develop asbestos lung disease as a result of his active service. Although the veteran seeks application of the "benefit-of-the-doubt" rule under 38 U.S.C.A. § 5107(b) (West 2002), in this case, the most probative evidence (the thorough and specific April 2005 VA examination that considered all of the relevant prior medical findings and evidence) outweighs the favorable evidence because of its specificity and thoroughness. Therefore, the Board concludes that service connection for asbestos lung disease is not warranted. ORDER Service connection for asbestos lung disease is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs