Citation Nr: 0608210 Decision Date: 03/22/06 Archive Date: 04/04/06 DOCKET NO. 03-25 050A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for pleural plaque thickening as a result of asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The veteran filed a Notice of Disagreement (NOD) in October 2002, appealing the issues of service connection for pleural plaque thickening and diabetes mellitus. In May 2003, the veteran wrote to VA to withdraw his appeal for diabetes mellitus. Thus, the issue of service connection for diabetes mellitus is not before the Board. 38 C.F.R. § 20.204 (2005). FINDINGS OF FACT 1. In December 1999, the RO denied the veteran's appeal. The veteran did not appeal the RO's decision. 2. Evidence received since the December 1999 RO denial is duplicative or cumulative of evidence previously considered or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The December 1999 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2005). 2. No new and material evidence has been received since the December 1999 RO denial of service connection for pleural plaque thickening as a result of asbestos exposure. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 1999, the RO denied the veteran's claim for service connection for pleural plaque thickening as a result of asbestos exposure. The veteran did not appeal the rating decision. Therefore, the RO's December 1999 decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d) (2005); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2005). If new and material evidence is presented or secured with respect to a claim that has been denied, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence already of record at the time of the last prior final denial of the claim sought to be opened. It must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). 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). Evidence received since the December 1999 denial consists of records from the New Orleans VA Medical Center (VAMC), information obtained from a law firm website regarding asbestos-related diseases and job sites where asbestos was used, medical records from the Oschner Clinic, the veteran's service personnel records, an August 1996 pulmonary function examination from Dr. "M.G." showing the veteran to have a mild restrictive pulmonary deficit, a duplicate of a September 1995 letter from Dr. "A.S." stating that the veteran's pleural plaque thickening is consistent with asbestos exposure, a medical expense report, a transcript from a March 2004 Decision Review Officer (DRO) hearing, and a February 2005 VA radiology report. With the exception of the duplicate letter from Dr. S., all the evidence listed above is new, in that it has not been submitted to VA before. However, the Board finds that the evidence is not new and material because it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Specifically, none of the evidence received indicates that the veteran's pleural plaque thickening was incurred during, or aggravated by, his military service from December 1967 to December 1969, over 35 years ago. With regard to the veteran's testimony in March 2004, as a layperson without the appropriate medical training and expertise, the veteran is not competent to offer a probative opinion on a medical matter, such as whether a disability was caused or worsened by military service decades ago. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). Hence, where, as here, resolution of an issue under consideration turns on a medical matter, unsupported lay statement(s), even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Accordingly, the Board finds no new and material evidence to reopen the claim for service connection for a psychiatric disorder. The claim is not reopened. 38 U.S.C.A. § 5108. 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 October 2001, January 2003, and April 2003, as well as information provided in the July 2003 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 July 2003 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 a VCAA notice in October 2001, 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 October 2001, January 2003, and April 2003 VCAA notices and the July 2003 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). 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. In any event, the Board points out that the VCAA expressly provides that nothing in the Act "shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title." 38 U.S.C.A. § 5103A(f). ORDER As no new and material evidence has been received, the claim for service connection for pleural plaque thickening as a result of asbestos exposure is not reopened. The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs