Citation Nr: 0637970 Decision Date: 12/06/06 Archive Date: 12/19/06 DOCKET NO. 02-17 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active service from July 1946 to July 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded this matter in June 2004 and December 2005. FINDING OF FACT Asbestosis is not currently shown. CONCLUSION OF LAW A disability due to asbestos exposure was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs 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, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2006). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, 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 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. Dingess/Hartman at 488. 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. Id. A. Duty to Notify By letter dated in August 2001, the RO provided the veteran with notice of the evidence necessary to substantiate a claim for service connection. The August 2001 letter also informed the veteran of VA's duty to assist in the development of his claim and explained what evidence VA was responsible for obtaining and what evidence VA would assist him in obtaining. The veteran was advised to submit any relevant evidence in his possession. In June 2004, the RO sent the veteran another letter that advised him of the evidentiary requirements of a service connection claim and requested that he provide specific information regarding his claimed asbestos exposure. In May 2006, the veteran was notified of the evidence required to establish an effective date and a disability rating for the matter on appeal, should service connection be awarded. As the notice provided to the veteran was timely and provided him with the relevant information regarding the duty to assist and the evidence required to substantiate his claim, the Board finds that the duty to notify has been satisfied. B. Duty to Assist The RO made reasonable attempts to assist the veteran in the development of this claim. The RO secured the relevant post-service private and VA medical records associated those records with the claims file. The case was remanded on two separate occasions by the Board for further procedural and substantive development. The veteran has been afforded a VA examination for the purpose of obtaining an opinion as to whether the veteran has asbestosis. Further discussion is warranted with regard to the veteran's service medical records. The RO made several attempts to obtain the service medical records, but they were determined to be unavailable. The Court has held that in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). II. Analysis of Claim The veteran seeks service connection for asbestosis. He contends that he developed asbestosis as a result of exposure to asbestos in the boiler and furnace spaces on ships during his service in the Navy. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110, 1131. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, VA has provided guidelines for adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1 (M21-1), Part VI, Par. 7.21. VA's General Counsel has held that the M21-1 guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCREC 4- 2000; 65 Fed. Reg. 33, 422 (2000). Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1, Part VI, Par. 7.21(b). This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer and cancers of the gastrointestinal tract. Veterans Benefits Administration Manual M21-1, part VI, paragraph 7.21(a)(1). The veteran had active service from July 1946 to July 1948. In this case, while the record shows that the veteran served aboard Navy ships, there is no evidence of exposure to asbestos during service. As noted previously, the M21-1 guidelines do not create a presumption of exposure to asbestos solely from shipboard service. The Board must determine whether the evidence reflects a current diagnosis of asbestosis. The veteran has submitted a private medical record dated in September 2000 that contains a diagnostic impression of a "reasonable medical probability" of asbestosis. According to this report, chest x-ray showed a few small areas of mild pleural thickening and bilateral nodular and interstitial changes that involve the entire right lung and the bottom two-thirds of the left lung. The reporting physician noted that the diagnosis was based on significant exposure to asbestos dust as well as an x-ray study that reported as characteristic of asbestosis. This report referred to the veteran's exposure to asbestos dust in an occupational environment post-service, but contained no evidence relating the reported asbestosis to the veteran's military service. Other post-service evidence dated from 1993 to 2006, reflects varying diagnoses, including emphysema, tuberculosis and restrictive lung pattern. The earliest post-service evidence of treatment for a respiratory condition is a May 1993 x-ray report which reflects an impression of emphysema. Other records show that the veteran underwent bronchoscope examination in December 1999 for evaluation of a lung mass. A December 1999 pathology report reflects diagnoses of chronic inflammation and focal fibrosis, with no carcinoma or malignant cells identified. A January 2000 private medical record notes an impression of tuberculosis. A private medical report dated in March 2003 notes a history of pulmonary lung lesion with six months of treatment for tuberculosis. A report of a July 2003 chest x-ray reflects findings of lung fields without pulmonary congestion or air space disease. A March 2004 chest x-ray report contains an impression of normal pulmonary vascularity and reflects that the lungs were noted to be clear of infiltrate and without effusion. There is no medical evidence in these records of a nexus between any of these conditions and the veteran's military service. The veteran underwent a VA examination in May 2006. The VA examiner interviewed the veteran and indicated review of the claims file. Pulmonary function tests performed during the VA examination showed restrictive pattern with mild impairment and a mild decrease in diffusion capacity. The examiner diagnosed restrictive lung pattern with cavitary lesion on the chest x-rays. The VA examiner opined that this condition was at least as likely as not due to the veteran's history of tuberculosis in the past. The examiner noted the veteran had worked as a sheet metal worker for a shipbuilder from February 1943 to July 1944 before he joined the service. The VA examiner opined that the veteran's current restrictive lung pattern was not due to asbestosis. As mentioned previously, service connection requires (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The critical element in this case is whether there is a current diagnosis of asbestosis or any evidence linking a current respiratory condition to service. The Board must weigh the credibility and probative value of the above medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In this instance, a VA examiner has recently stated the veteran does not have asbestosis. He had access to the entire claims folder, including the comment made by the physician in 2000. The Board therefore gives his opinion greater weight. Therefore, the Board finds that the weight of the evidence is against a finding of a current diagnosis of an asbestos-related disease. While the veteran argues that he has a respiratory disorder related to asbestos exposure during service, his assertions are not sufficient to provide a nexus to service. Evidence that requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. The veteran is not shown to have this expertise. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ ROBERT E.O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs