Citation Nr: 0609984 Decision Date: 04/06/06 Archive Date: 04/13/06 DOCKET NO. 04-04 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for pulmonary asbestosis and asbestos related pleural disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The veteran and his spouse. FINDING OF FACT The veteran's alleged pulmonary asbestosis and asbestos related pleural disease began many years after service and was not caused by any incident of service, including alleged asbestos exposure. CONCLUSION OF LAW Pulmonary asbestosis and asbestos related pleural disease, claimed as due to asbestos exposure, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran had active service from January 1961 to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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). 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. 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). 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). In this case, the veteran claims that he was exposed to asbestos during his active duty. The RO obtained the veteran's service personnel records (SPRs), and they contain no evidence of the veteran being exposed to asbestos or indications that the veteran's work during service would have lead him to extensive exposure to asbestos. Additionally, the veteran's service medical records (SMRs) show no complaints, findings, or diagnoses of any lung disorders. Evaluations of the veteran during service make no reference to any such disorders, or indications of such disorders. His induction and separation examinations are negative for lung disorders. Clearly, the service records provide evidence against this claim. In fact, in his discharge evaluation of November 1964, the veteran denied he had any shortness of breath, providing more negative evidence against this claim. After leaving active service in 1964, the veteran worked in several jobs in different fields, as the veteran described in his chart presented to the Board, with some form of asbestos exposure after service. These facts provide more negative evidence against this claim as they indicate: (1) that the veteran was able to function well after service; and (2) asbestos exposure after service. The veteran claims to have been diagnosed with asbestosis in 1997, 33 years after service. 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 medical evidence the veteran has submitted does not support his belief that the disorder is related to his service, providing more evidence against this claim. For example, the March 1998 medical report of "R.J.M.", M.D., notes exposure to asbestos insulation materials while working in maintenance repair as a painter in various positions from 1961 through the 1980's. It was noted that the exposure occurred on a "regular basis." Overall, the Board finds this report provides evidence against the claim as it indicates that the majority of the veteran's exposure to asbestos was well after service (1964 though the 1980's). As the veteran testified before the Board, he has received compensation for his disability on the basis of post-service exposure to asbestos, providing more evidence against this claim The medical articles submitted by the veteran in this case do not support the theory of entitlement in light of the evidence cited above. The Board notes that, with regard to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the treatise evidence submitted by the veteran is not accompanied by the opinion of a medical expert that clearly supports this claim. The Board concludes that this information is insufficient to establish the required medical nexus opinion. With regard to the medical opinion of the veteran and his spouse, as well as other lay statements, these people do not have the medical expertise to associate a current disorder with service so many years ago. 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"). The weight of the competent evidence demonstrates that the veteran's current disorder began many years after service and was not caused by any incident of service, including asbestos exposure. The Board finds that the service and post-service medical records provide very negative evidence against this claim, indicating a condition that began many years after service. The condition was neither incurred in nor aggravated by service. As the preponderance of the evidence is clearly against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 2002 and November 2001, as well as information provided in the December 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 an October 2002 report of contact, the veteran stated that he did not have anything else to submit. In addition, the 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 November 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 letters, the SOC, and the veteran's testimony at two hearings make clear the VA has 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). The veteran has been notified of the applicable laws and regulations that set forth the criteria for entitlement to service connection. 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. As discussed above, the Board finds that the RO has ultimately provided all notice required by § 5103(a). Therefore, any failure to make a specific request in the VCAA letter is non-prejudicial, harmless error. 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). With respect to the duty to assist, the RO has secured the veteran's service medical records, VA medical records, VA examinations, 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. With respect to the duty to assist, the RO has secured the veteran's service medical records, service personnel records, VA medical 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 The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs