Citation Nr: 0617279 Decision Date: 06/14/06 Archive Date: 06/26/06 DOCKET NO. 04-11 911 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for interstitial lung disease due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from February 1948 to January 1952. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2002 RO decision that denied service connection for interstitial lung disease due to asbestos exposure. The veteran testified before the Board in May 2006, and the Board advanced the case on the docket. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2005). FINDINGS OF FACT The veteran does not currently have a lung disorder that involves any asbestos-related disease. CONCLUSION OF LAW Claimed lung disease due to asbestos exposure was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (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, 120-21 (2004). In this case, the RO sent correspondence in January 2002; a July 2002 rating decision; and a statement of the case in January 2004. 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 that claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA satisfied its duty to notify the appellant prior to the last adjudication here (a May 2005 supplemental statement of the case). In addition, all relevant, identified, and available evidence has been obtained, including a VA examination, and VA has notified the appellant of any evidence that could not be obtained. The veteran has also submitted a one-page report from a private doctor dated in April 1998. But despite a January 2004 VA request for the veteran to authorize release of any records from this provider, the veteran has stated that he has no additional evidence to submit. Moreover, in testimony, he has clarified that the particular doctor saw him only once. The duty to assist is not a one-way street. "If a veteran (appellant) wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 192 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The appellant has not referred to any additional, unobtained, relevant evidence. Thus, VA has satisfied both the notice and duty to assist provisions of the law. The veteran contends that he currently has a lung disorder that is due to asbestos exposure in his active service with the United States Navy on board the USS Cabot and USS Bataan. He states that he wore an asbestos suit as a firefighter and that he also helped paint the USS Bataan in drydock. 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; 38 C.F.R. § 3.303. Service connection may be presumed for certain chronic diseases, including arthritis, manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 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 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). "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. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Hickson v. West, 12 Vet. App. 247, 253 (1999); Brammer v. Derwinski, 3 Vet. App. 223 (1992). This determination is based on analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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 for claims involving asbestos exposure residuals, 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 Board must follow development procedures applicable specifically to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997). 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. The asbestos exposure 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, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4- 2000 (Apr. 13, 2000), 65 Fed. Reg. 33,422 (May 23, 2000). The veteran's service medical records reflect no complaint of or treatment for a lung disorder. The sole mention of any airway problems was in 1948, when he was treated for a deviated nasal septum and associated residuals that the veteran sustained in a football injury four years earlier (that is, prior to service). The veteran states that he was first treated for a lung disorder in 1998 when he consulted with an attorney after reading a newspaper ad. That attorney sent the veteran to a doctor who diagnosed interstitial lung disease consistent with asbestos-related disease. According to that April 1998 report, an X-ray of the veteran's lungs showed parenchymal abnormalities consistent with pneumoconiosis. The diagnoses were interstitial lung disease and pleural thickening/pleural plaques consistent with asbestos exposure and asbestos- related disease. But notably, despite this diagnosis and consultation with a private attorney, the veteran did not seek further treatment for the condition from the diagnosing doctor or from any other doctor. The veteran also states that he was not exposed to asbestos in his post-service occupation as a "bowman" who drove trucks for a steel manufacturing company between 1968 and 1985. However, on VA examination in January 2004, he also stated that he had been involved in digging ditches, making concrete, block construction, and laying pipes or pipelines. Most significantly, there is no mention of asbestosis or of asbestos-related lung disease in any of the veteran's recent VA medical records since 2000. He has been treated occasionally for coughs, flus, bronchitis, pharyngitis, and upper respiratory infections of bacterial origin, such as in December 2001, January 2003, and December 2003-January 2004. In January 2003, he also indicated that he had quit smoking in 1989 after having smoked two and a half packs per day for 25 years. He was also treated for sinusitis in January 2001. Indeed, an August 2000 VA X-ray showed clear lungs with no pneumothoraces or pleural effusions, and his lungs were clear to auscultation in January 2001 when he was seen for sinusitis. Also, on treatment in December 2003 for suspected influenza and to rule out pneumonia, a VA X-ray of the veteran's chest showed clear lungs and no evidence of active disease in the last few months. The most unfavorable evidence is a January 2004 VA respiratory examination. The veteran complained of productive cough and occasional dyspnea on exertion, but he denied any history of asthma. He reported that after service he drove trucks and operated a back-hoe for a steel manufacturer and that he also did some general construction work involving ditch-digging, making concrete, block construction, and pipelines. Objectively, his lung sounds were clear to auscultation. The diagnosis was chronic obstructive pulmonary disease but no evidence of asbestosis. Also, on pulmonary function testing, the spirometry was normal with no significant bronchodilator response, and lung volumes and diffusing capacity were normal. In short, aside from the solitary diagnosis of interstitial lung disease in April 1998, all the remaining evidence shows no such disease. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Hickson v. West, 12 Vet. App. 247, 253 (1999); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board finds the more recent evidence, including VA X-rays, clinical records, and the January 2004 VA examination to be more probative because they specifically discussed clinical findings and symptoms. Also, the veteran has not produced any additional evidence surrounding the April 1998 non-VA report and states consistently that he was not treated thereafter by the doctor who diagnosed interstitial lung disease for a private attorney's firm. In light of the January 2004 VA examination and recent VA medical records, 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 none of the medical evidence since the April 1998 non-VA doctor's report submitted by the veteran has definitively found any 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). The veteran has submitted various articles and treatises describing asbestos-related diseases and the types of suit that he wore in service as a firefighter. However, none of this evidence addresses the crucial problem in this case, that is, the evidence that the veteran does not currently have a diagnosis of asbestos-related lung disease. Moreover, those articles are general and do not bear specifically on the veteran's particular case. The Board is also mindful of the veteran's belief that he now has asbestos-related lung disease that is due to various aspects of his active naval service, including the suit worn as a firefighter. However, the veteran personally does not have the required expertise to render a competent medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In sum, the weight of the credible evidence demonstrates that the veteran did not develop lung disease as a result of his active service or any asbestos exposure in service. As the preponderance of the evidence is against the claim, the "benefit-of-the-doubt" rule does not apply, and the Board will deny the claim. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for a lung disease due to asbestos exposure is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs