Citation Nr: 0636237 Decision Date: 11/21/06 Archive Date: 11/28/06 DOCKET NO. 04-38 338A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from January 1952 to November 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for asbestosis. FINDINGS OF FACT 1. There is no medical evidence showing the claimant has asbestosis during service, or for many years after. 2. There is no diagnosis of asbestosis of record. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.303, M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend, in essence, that service connection for asbestosis is warranted based on service incurrence. The veteran maintains that he worked in the shipyard and on board ship while in the Navy. He relates that he was exposed to blown insulation containing asbestos while working on ship in service. I. Duty to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent a letter to the veteran in January 2006, which asked him to submit certain information, and informed him of the responsibilities of the claimant and VA concerning obtaining evidence to substantiate his claim. In accordance with the duty to assist, the letter informed the appellant what evidence and information VA would be obtaining, and essentially asked the appellant to send to VA any information he had to process the claim. The letter also explained that VA would make reasonable efforts to help him get evidence such as medical records, but that he was responsible for providing sufficient information to VA to identify the custodian of any records. VA informed the veteran of what he needed to show for a service connection claim. In view of this, the Board finds that the Department's duty to notify has been fully satisfied with respect to the claim. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court discussed the statutory requirement in 38 U.S.C.A. § 5103(a) that notice be sent to a claimant before the initial adjudication of his claim. This was not accomplished in this case, however, proper VA process was ultimately performed as to the claim. The Board concludes that to proceed to a decision on the merits would not be prejudicial to the appellant in this instance. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (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 five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In March 2006, the veteran was appropriately notified. With respect to VA's duty to assist the veteran, the RO has obtained or attempted to obtain all evidence identified by the veteran. He has not identified any additional evidence pertinent to the claim not already of record, or attempted to be located, or requested by VA. There are no known additional records to obtain. He was offered a hearing but withdrew his hearing request. Overall, the Board finds that VA has satisfied its duties to inform and assist the appellant, and the Board may proceed with this case. II. Service Connection-Asbestosis The veteran and his representative contend, in essence, that service connection is warranted for asbestosis based upon exposure to asbestos in service. Under applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any 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). 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 for 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 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. M21-1MR, Part IV, Supbart ii, Chapter 1, Section H Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. However, of most import, is a diagnosis of asbestosis. In April 2001, the veteran's private physician, Gail Blakely, MD, indicated, in pertinent part, that the veteran had asbestos related pleural disease as evidenced by his history of asbestos exposure and x-ray showing pleural disease. On the other hand, the veteran underwent a VA examination in April 2003. The veteran gave a history of exposure to asbestos, but CT findings of the chest showed no evidence of calcification of the pleural thickening seen, bilaterally. The VA examiner stated that since calcified pleural plaques are the hallmark of asbestos induced lung disease, there is at the time of the examination, despite his history of asbestos exposure, no evidence of pulmonary asbestosis. Although the veteran's private doctor stated that the veteran had asbestos related pleural disease, she never provided a clear diagnosis indicating what type of asbestos- related disease that the veteran had. The VA examiner specifically indicated that there was history of asbestos exposure, but that there was no asbestos induced lung disease, since the pleural disease did not show evidence of plaques, the hallmark of asbestos related disease. Congress has specifically limited entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability, and in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The veteran's alleged asbestosis has not been shown at any time in service or thereafter. Accordingly, entitlement to service connection for asbestosis is not warranted as there is no medical evidence of record of a present disability of related to asbestos exposure that can be related to service. ORDER Service connection for asbestosis is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs