Citation Nr: 0615629 Decision Date: 05/30/06 Archive Date: 06/06/06 DOCKET NO. 04-15 108 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Robert P. Walsh, Attorney INTRODUCTION The veteran had periods of active service with the United States Merchant Marine from July 19 to July 29, 1943; August 4 to October 1, 1943; October 9 to November 30, 1943; December 30, 1943, to May 11, 1944; June 9 to November 13, 1944; February 2 to March 15, 1945; and from May 14 to July 7, 1945. Based on a detailed review of this eight volume case, one of the matters the Board of Veterans' Appeals (Board) must address is which issue or issues are properly before it at this time. Under 38 U.S.C.A. § 7105(a) (West 2002), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203 (2005). The basis for this appeal being before the Board stems from a July 2003 rating action, an August 2003 NOD, a January 2004 SOC, and a March 2004 substantive appeal. One of the two issues addressed in this rating action was granted by the RO. Thus, the sole issue before the Board based on the July 2003 rating action is the issue of entitlement to service connection for asbestosis. In May 2005, the RO received an NOD regarding a January 2005 rating action. An SOC was issued in March 2006. A substantive appeal was not received. Thus, issues regarding the January 2005 rating action are not before the Board at this time. In November 2005, the RO addressed more claims raised by the veteran. An NOD regarding these claims was not received and these issues are not before Board at this time. In March 2006, another rating action was issued by the RO. An NOD regarding this rating action has also not been received. In May 2005, the veteran was found not competent to handle VA funds. This determination by the RO was not appealed and is also not before the Board at this time. No other issues are before Board at this time. FINDING OF FACT The veteran does not have asbestosis. CONCLUSION OF LAW Service connection for asbestosis is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 202); 38 C.F.R. §§ 3.303, 3.304 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence shows that a disability was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). To establish service connection, there must be: (1) A medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 have been 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. 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 these 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 (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 Board has reviewed in detail the volumes of medical evidence. Simply stated, the post-service medical record support a finding that the veteran does not have asbestosis. X-rays in April 1998 failed to cite to asbestosis, on VA examination in June 2005 asbestosis was not indicated, private medical treatment records do not indicate treatment for the disorder, and a review of VA treatment records fails to indicate asbestosis. The Board finds the medical opinion of "R.A.R., M.D.," dated September 1991, to be entitled to very limited, if any, probative weight. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the medical opinion of Dr. R. is, at best, unclear. He indicates that testing is "compatible" with the diagnosis of asbestosis, but does not explain why. Further, it is very unclear if this doctor is indicating that the veteran has asbestosis. Further evaluation was recommended, but a review of all medical records in this case fails to indicate asbestosis many years before and after this statement was made. Extensive medical treatment of this veteran at the VA over many years fails to indicate asbestosis. The Board must find that the post-service medical record, as a whole, provides very negative evidence against this claim, clearly outweighing the medical opinion of Dr. R. With regard to the veteran's own opinion, the veteran himself is not competent to diagnose the etiology of his own disability. 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 claim must be denied. The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the duty to notify. That is, by letters dated in April 2004 and at other times, 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 with respect to this claim. In addition, the January 2005 supplemental statement of the case includes the text of the regulation that implements the notice and assistance provisions from the statute. The Board observes that it does not appear that notice was provided before the rating decision, though this is unclear in light of the large record. However, the RO did furnish notice of the Veterans Claims Assistance Act of 2000 (VCAA) to the veteran regarding this issue at other times over many years. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As discussed above, the Board finds that the RO ultimately provided all notice required under 38 U.S.C.A. § 5103(a) with respect to the issue addressed in the rating decision, such that defect as to timing was cured. Moreover, the communication to the veteran essentially asked him to provide, pursuant to 38 C.F.R. § 3.159(b)(1), any evidence in his possession that was pertinent to the appeal. Id. at 121. Thus, the Board finds that the RO has provided all required notice. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such deficiencies result in no prejudice to the veteran and therefore constitute harmless error. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (holding that the Court must take due account of the rule of prejudicial error when considering compliance with VCAA notice requirements); 38 C.F.R. § 20.1102 (an error or defect in a Board decision that does not affect the merits of the issue or substantive rights of the appellant will be considered harmless). The Board is aware of the recent decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), 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). 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 VA and private treatment records and he has been afforded VA examinations. In this case, the RO has made all reasonable efforts to assist the veteran in the development of his claim. While additional attempts to obtain information can always be undertaken, in light of the record, the Board finds that such an additional attempt, in light of the extensive efforts already performed in this case, can not be justified. There being no other indication or allegation that additional relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. When a veteran's service medical records are unavailable, VA's duty to assist, and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule (see 38 U.S.C.A. §§ 71204(d)(1), 5107(b) (West 2002)), are heightened. See also Moore (Howard) v. Derwinski. 1 Vet. App. 401, 404 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). "Full compliance with the (statutory duty to assist) also includes VA assistance in obtaining relevant records from private physicians when (the veteran) has provided concrete data as to time, place, and identity." Olson v. Principi, 3 Vet. App. 480, 483 (19920. (Emphasis added.) The Board also notes that an etiological opinion has not been obtained. However, the Board finds that the evidence, discussed above, which indicates that the veteran does not have the disorder, 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 post-service medical records provide no basis to grant this claim, and provides evidence against the claim, the Board finds no basis for a VA examination to be obtained. Upon consideration of the foregoing, the Board finds that VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the veteran has not been prejudiced by the Board's adjudication of his claim. ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs