Citation Nr: 0611375 Decision Date: 04/20/06 Archive Date: 04/26/06 DOCKET NO. 04-40 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from May 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2006, the veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. At that hearing, the veteran requested that the issue of entitlement to service connection for post-traumatic stress disorder be withdrawn. Therefore, the issue is withdrawn and is no longer in appellate status. FINDING OF FACT The veteran does not have asbestosis that is related to active service. CONCLUSION OF LAW The veteran does not have asbestosis that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Veterans Claims Assistance Act (VCAA) On November 9, 2000, the VCAA was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005). VA has issued regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Second, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice and assistance provisions of the VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements were met in this case by a letter sent to the claimant in September 2003. That letter advised the claimant of the information necessary to substantiate his claim for service connection, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b) (2005). In addition, the 2003 letter asked the veteran to provide answers to question concerning where, when, how he was exposed to asbestos, if there were other things that cause cancer that he was exposed to while in service or after service, and why other type of work did he do before service and since service. The duty to notify also includes informing the veteran that he must send in all evidence in his possession pertaining to his claim. 38 C.F.R. § 3.159(b)(1). The RO's 2003 letter did not specifically tell the claimant to provide any relevant evidence in his possession. Nevertheless, as a practical matter, the Board finds that he has been notified of the need to provide such evidence as the September 2003 letter advised the veteran to complete questions about his claim resulting from asbestos exposure and to send medical evidence that shows the diagnosis of the disease caused by asbestos and if a biopsy has been performed at a VA facility to advise VA so that the evidence could be obtained on his behalf or if performed somewhere other than a VA facility to furnish a copy of the biopsy report. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claims." Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004). The duty to notify the veteran of necessary evidence and of responsibility for obtaining or presenting that evidence has been fulfilled. Third, VA has a duty, in order to assist claimants, to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the veteran's service medical records have been associated with the claims file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran was asked to advise VA if there was any other information or evidence he considered relevant to his claim so that VA could help him by getting that evidence. He was also advised what evidence VA had requested, and notified in the SOC and SSOC what evidence had been received. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The claimant was afforded medical examination to obtain an opinion as to whether he currently has asbestosis and if so, whether asbestosis can be directly attributed to service. Thus, the Board finds that VA has satisfied the duty to assist the veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal. See Bernard, 4 Vet. App. at 394. Remanding this case again for further VCAA development would result only in additional delay with no benefit to the veteran, and such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which result in unnecessary additional burdens on VA with no benefit flowing to the veteran are to be avoided). In light of the foregoing, the Board finds that the RO has obtained and fully developed all relevant evidence necessary for an equitable disposition. Thus, VA's duty to assist has been fulfilled. In Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, (U.S. Vet. App. March 3, 2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), in part, must include notice regarding the laws and regulations pertaining to the disability rating and effective date for the award of benefits. Id. As discussed above, the veteran was provided with proper notice of what type of information and evidence was needed to substantiate his claim for service connection. As the Board concludes that the evidence is against the veteran's claim, any question as to whether there was proper notice as to the laws and regulations pertaining to disability ratings and effective date matters is rendered moot. Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Facts and Analysis The veteran is seeking service connection for asbestosis. He essentially contends that his asbestosis is the result of exposure to asbestos in service while working as a mechanic. Service connection may be established for disability due to disease or injury incurred in or aggravated during active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include 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. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). In support of his claim, the veteran submitted a June 1992 medical report which notes, "the patient's exposure history is significant. He worked as a m[e]chanic from 1973 to the present time at Ingall's Shipbuilding where he had an occasion to be intermittently exposed to asbestos materials without the benefit of face mask protection." After pulmonary function tests were conducted and chest x-rays were taken, the impression was findings compatible with pulmonary asbestosis. As noted above, in January 2004, the veteran was afforded a VA examination to determine the nature and etiology of any asbestosis. The veteran reported that while he was in the Navy between 1969 and 1971, he was exposed to asbestos while working as a mechanic and handling asbestos containing materials while aboard ship. The veteran reported that in 1973 he started working for Ingall's Shipbuilding and worked as a testing mechanic, but denied handling asbestos while working there. The veteran reported that he had been a smoker ever since 1969 and smoked an average of one pack of cigarettes per day. After a physical examination of the veteran, pulmonary function test, and chest x-rays, the veteran was diagnosed with mild obstructive disease. The examiner noted that chest x-rays were negative for any specific findings for pulmonary asbestosis. The examiner also noted that the obstructive disease was likely to be the result of his chronic heavy smoking for years. The Board finds that the most probative medical evidence on file is the VA examination conducted in January 2004 which reflects that the veteran does not have a current diagnosis of asbestosis. The Board finds the VA examination report to be of tremendous probative value as it was based on an interview and evaluation of the veteran. Notably, the evaluation included the administration of numerous diagnostic studies (e.g. X-rays and pulmonary function tests). In addition, the examiner indicated he reviewed the veteran's historical records (i.e., his computerized treatment records). It is acknowledged that there is some evidence on file to include medical reports from 1992 which reflect an impression of pulmonary asbestosis. Notably, however, this diagnosis is not linked to any inservice exposure to asbestos but rather to the veteran's post-service employment at Ingall's Shipbuilding. In sum, the most probative medical evidence on file fails to reflect a current diagnosis of the disability at issue, asbestosis. Without evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Even if the Board were to assume that the veteran has asbestosis, currently, based on the private reports from over a decade ago, in 1992, there is still no competent evidence that links such to asbestos exposure in service. Rather, the private medical reports link asbestos to post-service employment involving shipbuilding. As to whether any lung problems were caused by smoking, the veteran did not argue that any asbestosis was related to in- service smoking. There is no evidence that the veteran began smoking while in military service, that he became nicotine dependent in service, that he has continued smoking since, or shows a relationship between any asbestosis and any in service smoking. VAOPGCPREC 2-93; VAOPGCPREC 19-97. The Board has considered the veteran's assertions in reaching its decision on this claim. However, as the veteran is a layperson without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter, such as whether he, in fact, suffers from a current disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reaching this decision, the Board considered the "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs