Citation Nr: 0634001 Decision Date: 11/02/06 Archive Date: 11/16/06 DOCKET NO. 05-09 888 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for a pulmonary disability, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from March 1969 to January 1973. This appeal to the Board of Veterans Appeals (Board) arises from a September 2003 rating action that denied service connection for a pulmonary disability, to include as due to asbestos exposure. In March 2006, the Board remanded this case to the RO for further development of the evidence and for due process development. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. There is no evidence of any pulmonary disability in service. 3. Competent and persuasive medical evidence establishes that the veteran does not currently have a pulmonary disability that is due to exposure to asbestos during his military service. CONCLUSION OF LAW The criteria for service connection for a pulmonary disability, to include as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA and its implementing regulations essentially include, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision on the claim on appeal has been accomplished. March 2003 pre-rating and March 2006 post-rating RO letters informed the veteran of the VA's responsibilities to notify and assist him in his claim, and what was needed to establish entitlement to service connection (evidence showing a disease that began in or was made worse by his military service). Thereafter, he was afforded opportunities to respond. The Board thus finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit such information and evidence. Additionally, those RO letters provided notice that the VA would make reasonable efforts to help the veteran get evidence necessary to support his claim, such as medical records (including private medical records), if he gave it enough information, and if needed, authorization to obtain them. Those letters further specified what records the VA was responsible for obtaining, to include Federal records, and reiterated the type of records that the VA would make reasonable efforts to get. The March 2006 RO letter requested the veteran to furnish any evidence that he had in his possession that pertained to his claim. The Board thus finds that these letters satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; (3) the evidence, if any, to be provided by him; and (4) a request by the VA that the claimant provide any evidence in his possession that pertains to the claim. As indicated above, all 4 content of notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matter now before the Board, documents meeting all of the VCAA's notice requirements were not furnished to the veteran prior to the September 2003 rating action on appeal. However, the Board finds that, in this appeal, any delay in issuing the 38 U.S.C.A. § 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.2006). As indicated above, the veteran has been notified of what was needed to substantiate his claim, and afforded opportunities to present information and/or evidence in support thereof. As a result of RO development and the Board remand, comprehensive documentation, identified below, has been associated with the claims folder and considered in connection with the veteran's appeal. After the post-remand RO notice letter in March 2006 (which substantially completed the VA's notice requirements in this case), the RO gave the veteran further opportunities to furnish information and/or evidence pertinent to the claim before it readjudicated it on the basis of all the evidence of record in July 2006 (as reflected in the Supplemental Statement of the Case). Hence, the Board finds that any failure on the part of the VA in not completely fulfilling VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2005). More recently, in March 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 5 elements of a service connection claim (veteran status, the existence of a disability, a connection between the veteran's service and that disability, the degree of disability, and the effective date pertaining thereto). In this case, the Board finds that this was accomplished in the March 2006 RO letter. Additionally, the Board finds that all necessary development on the claim currently under consideration has been accomplished. The RO, on its own initiative and pursuant to the Board's remand, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate his claim, to include obtaining all available service medical and administrative records, as well as numerous pertinent post-service VA medical records. Although in September 2006 the veteran requested that additional VA radiographic evidence pertaining to his chest be obtained and considered, the Board finds that the current medical evidence consisting of comprehensive VA examination and radiographic reports is adequate to equitably adjudicate this claim, and that additional radiographic evidence is thus not necessary. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that there is no statute specifically addressing asbestos and service connection for asbestos- related diseases, nor has the VA promulgated any specific regulations for these types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, a recent opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on inservice asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a pulmonary disability, to include as a residual of asbestos exposure, under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and the development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the its claim-development procedures). With these claims, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). In this case, the veteran claims service connection for a pulmonary disability that is due to asbestos exposure during his naval service, but his service records, including medical records, are completely negative for complaints, findings, or diagnoses of any pulmonary disability. The lungs and chest were normal on January 1973 separation examination, and all chest X-rays in service were negative. Other service records document the veteran's service as a boiler technician aboard the USS Lexington during his active naval service. The RO in September 2003 indicated that the veteran's exposure to asbestos while aboard that ship may be conceded. Post service, August and November 1993 VA hospital records are completely negative for findings or diagnoses of any pulmonary disability. The lungs were normal on examinations during both periods of hospitalization, and November 1993 chest X-rays revealed no active disease therein. August 1999 VA medical records show a history of the first diagnosis of chronic obstructive pulmonary disease (COPD) in 1997, 24 years post service, and subsequent VA medical records show continuing treatment for COPD through 2004. Specific to the asbestos aspect of the claim, the Board points out, as noted above, that the veteran's exposure to asbestos during service has been conceded. However, there is no competent and probative evidence that he currently has a pulmonary disability that is due to asbestos exposure in service. While in January 2003 a VA radiologist speculated that mild pleural thickening noted in the hemithoraces bilaterally on a computerized tomography (CT) scan of the veteran's chest could be from prior asbestos exposure, a VA physician in July 2003 reviewed the results of clinical testing and definitively ruled-out without question a diagnosis of significant clinical asbestosis, noting that pulmonary function tests (PFTs) showed only very mild obstructive airway disease, and that there was no evidence of any significant parenchymal involvement. Moreover, he opined that, although the presence of mild pleural thickening might be caused by asbestos, this did not represent a clinical disability. Other competent and persuasive evidence that addresses the question of whether the veteran currently suffers from a pulmonary disability that is related to service, including asbestos exposure, includes the May 2006 opinion of a VA examiner which squarely militates against the claim for service connection. After a review of the entire claims folder, and a review of the veteran's military and medical history and current radiographic and clinical examination, the diagnosis was COPD with bullous changes consistent with emphysema with moderate obstructive changes on PFT, with no evidence to support fibrotic changes and restrictive defect consistent with a history of asbestos exposure. The examiner opined that there was no current evidence of asbestos-related lung or pleural disease, and that, although the etiology of the COPD with bullous changes was uncertain, it was less than likely that it was related to the veteran's claimed asbestos exposure in military service. The Board finds the comprehensive 2006 VA examination report to be of great probative value and dispositive of the question of service connection, inasmuch as it was based on a thorough review of the entire claims folder containing the veteran's documented service and post-service medical history and current examination of the veteran, and found no evidence that he has or ever has had a pulmonary disability that is due to asbestos exposure in service. That medical opinion, together with the July 2003 VA physician's report, constitute the only persuasive medical opinions on the issue before the Board. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board notes that, in arriving at his opinions, the 2006 VA examiner properly considered the factors contained in DVB Circular 21-88-8 and M21-1. Moreover, the Board is satisfied that the RO has complied with its claim-development procedures, and considered whether military records demonstrated evidence of asbestos exposure during service; developed whether there was pre-service and/or post-service occupational or other asbestos exposure; and determined whether there is a relationship between alleged asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. In addition to the medical evidence, the Board has considered the veteran's assertions; however, such do not provide any basis for allowance of the claim. While the veteran may well believe that his current pulmonary disability is due to asbestos exposure during military service, the competent medical evidence does not support such contention. The Board emphasizes that the appellant is competent to offer evidence as to facts within his personal knowledge, such as his own symptoms. However, medical questions of diagnosis and etiology are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layman without the appropriate medical training or expertise, the appellant simply is not competent to render an opinion on such a medical matter. 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 layman is generally not capable of opining on matters requiring medical knowledge). Hence, his own assertions in this regard have no probative value. In view of the competent and persuasive medical evidence indicating that the veteran does not currently suffer from a pulmonary disability that is due to his military service, including exposure to asbestos therein, the Board finds that the claim for service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a pulmonary disability, to include as due to asbestos exposure, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs