Citation Nr: 0700123 Decision Date: 01/04/07 Archive Date: 01/17/07 DOCKET NO. 05-07 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to a compensable rating for hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who had active service from January 1945 to July 1946. The case is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Houston Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for a right third finger, rated 10 disabling; for bilateral hearing loss, rated as noncompensably disabling; for tinnitus, rated as 10 percent disabling; and denied service connection for asbestosis and right hand nerve damage. On his February 2004 notice of disagreement (NOD), the veteran disagreed with the initial ratings assigned for his right finger and his hearing loss disorders, and the denial of service connection for his asbestos claim. On his February 2005 Form 9, the veteran perfected his appeal in regards to his right finger, hearing loss, and asbestos claims. He also raised a new claim pertaining to his right hand. In a July 2006 rating decision, the RO recharacterized his right third finger injury and right hand claims as residuals of a right hand injury with post traumatic arthritis. The recharacterization of the disability encompassed the right long finger as well as two other fingers into the complete disability picture and increased the rating assigned (originally to the right third finger only) from 10 percent to 30 percent disabling. The RO also granted service connection for right hand nerve damage and assigned a separate 10 percent evaluation. In an August 2006 statement, the veteran indicated that he accepted the July 2006 rating decision, and indicated that he wished to continue the appeal on the hearing loss and asbestos claims. As such, the only matters before the Board are as stated on the previous page. FINDINGS OF FACT 1. It has not been shown that the veteran's asbestosis is related to active service. 2. Throughout the appeal period, the veteran was not shown to have had worse than Level II hearing acuity in either ear. CONCLUSIONS OF LAW 1. Service connection for asbestosis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). 2. A compensable rating for the veteran's bilateral hearing loss is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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). The veteran has been advised of VA's duties to notify and assist in the development of his claims and notified of the information and evidence necessary to substantiate the claims and of the efforts to assist him. In letters dated in May 2003 and July 2003 (prior to the August 2003 rating decision) and in November 2004, the veteran was notified of the information and evidence needed to substantiate and complete his claims, of what part of that evidence he was to provide, and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The August 2003 rating decision which assigned the initial noncompensable rating advised the veteran of the basis for the rating. In the May 2003 rating decision, a November 2004 letter, January 2005 statement of the case (SOC) and July 2006 supplemental SSOC, he was properly (see VAOPGCPREC 8- 2003 (Dec. 2003)) provided notice regarding the "downstream" issue of an increased initial rating and what the record showed. For both claims, the November 2004 correspondence included content complying notice by specifically advising the veteran to submit "any evidence in [his possession that pertains to [his] claim." The claims were subsequently readjudicated in January 2005 and July 2006 supplemental SOC's. In March 2006, the veteran was also provided notice of the types of evidence necessary to establish disability ratings and effective dates for the issues on appeal. However, regardless of the content of the March 2006 letter, (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), he would not be prejudiced by a lack of such notice for his increased rating claim since consideration is given to the evidence which shows the severity of the disability and when any increase in severity might have occurred. 38 U.S.C.A. § 5110(b). As for his service connection claim prior lack of such notice is not critical, as such notice only becomes relevant if service connection is granted. Although the veteran did not receive proper notice prior to the August 2003 rating decision on appeal, the Board finds that the lack of such a pre-decision notice is not prejudicial to the veteran. Proper notice was provided by the RO prior to the transfer and certification of the veteran's claims to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. In an April 2006 statement, the veteran indicated that he had no other information or evidence to give to substantiate his claim(s). In view of the fact that the RO took appropriate action to assist the veteran in obtaining all such evidence, including providing him with VA examination(s), VA's duty to assist is satisfied and it is not prejudicial to the veteran for the Board to proceed with appellate review. II. Factual Background The veteran's service medical records (SMRs) are negative for any complaints, treatment, or diagnosis of asbestosis. The report of a July 1946 separation examination indicates that the veteran's respiratory system was normal. The veteran was found to be qualified for discharge. April 1990 correspondence from H. Z. B., M.D., a private physician, indicated that the veteran was evaluated and underwent pulmonary function tests, chest radiographs, and a CT scan of the chest. The physician indicated that it was his impression that the veteran had asbestos related pleural disease. He further stated that based on the present information, he could not state within a reasonable medical probability that interstitial fibrosis was present. In a letter dated in July 1990 to the veteran's attorney, Dr. B. indicated that he was responding to the attorney's request for a "final narrative" regarding the findings of on the veteran. Dr. B. indicated that he examined the veteran in March 1990. At that time the veteran had complaints of pain in his right lower posterior thorax, as well as pain in his right hip and lower extremity. The pain in his chest was nonpleuritic. The veteran denied any history of chest trauma, fever, hemoptysis, or weight loss. He had been short of breath for about one year but could walk several blocks without difficulty. He complained of occasional dysphagia with solid food. His past history was essentially negative. He denied a previous history of lung disease. He smoked cigars for about a year and a half in the past, but never smoked cigarettes. He stated that he had worked as a millwright and pipe fitter all of his life at Owens Illinois and DuPont. His family history was noncontributory. A physical examination was unremarkable except for some fine rales in the basis. In reviewing the results of posterior- anterior and lateral chest radiographs, CT chest scan, and pulmonary function studies, Dr. B. concluded that the veteran had radiographic evidence of asbestos-related pleural disease. He commented that although the plain films suggested that a mild degree of interstitial fibrosis was present, this could not be confirmed with any degree of certainty from the CT scan or the pulmonary function studies at that time. On July 2003 VA examination, the veteran stated that he occasionally smoked cigarettes, but quit in 1973. A chest x- ray revealed hazy density left lateral base with somewhat nodular quality. No old films were available for comparison. A follow-up was recommended with attention to that area. The interpreter noted rule out acute infiltrate clinically. A July 2003 report from Hemphill Hearing Center indicated that audiometric results (according to the attached diagram) indicated a mild sloping to a profound sensorineural hearing loss bilaterally, slightly more pronounced in the left ear. Speech reception thresholds were 20 decibels (dB) for the right ear and 25dB for the left ear. Speech discrimination scores were 84% for the right ear at 65dB and 88% for the left ear at 70dB. (Complete audiogram results were not included for interpretation.) On July 2003 VA official audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 35 55 80 LEFT 30 25 60 75 80 The average right ear puretone threshold was 48 decibels, and speech discrimination was 94 percent. The average left ear puretone threshold was 60 decibels, and speech discrimination was 74 percent. July 2003 to January 2005 VA outpatient treatment records included treatment for coronary artery disease and hypertension, upper respiratory infection, hypercholesterolemia, gastroesophageal reflux disease, and degenerative joint disease in the fingers. In August 2003, the RO granted service connection for bilateral hearing loss, rated noncompensable, effective from May 2003. In July 2003, the veteran submitted a statement that the WWII vessels he served on were highly contaminated with asbestos. He claimed that asbestos was used extensively throughout the ship in piping, insulation for heat and acoustic noise. While he was stationed on board Naval vessels, he was subjected to inhalation, ingestion and physical application of toxic asbestos fibers without regard to his safety. He contended that there was a nexus between his service and his asbestosis. In his February 2005 substantive appeal, the veteran indicated that his military occupational specialty (MOS) was that of Seaman. He indicated that, in those days, asbestos was used everywhere aboard the ship. He did work with asbestos after the military in the workplace. He claimed that the military trained him for an occupation, maintenance and repairs, for which he continued after his military. He claims that his initial asbestos exposure was in the Navy aboard a ship. On April 2005 VA official audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 50 70 85 LEFT 40 35 70 80 85 The average right ear puretone threshold was 59 decibels, and speech discrimination was 98 percent. The average left ear puretone threshold was 68 decibels, and speech discrimination was 94 percent. On May 2006 VA examination, it was noted that the C-file was available and reviewed. The veteran indicated that his job in the Navy was on the first division deck. He pulled watches, worked in the gallery, and also worked in incineration. Postservice, he worked for 13 years in a paper mill and 20 years at DuPont as an outdoor machinist. He retired in 1983. The veteran reported a history of being in relatively good health, he did not have any serious medical problems other than arthritis and approximately five years ago he had heart surgery, a triple bypass, but since that time he had not been on any cardiac medications and is doing well. He reported that he felt that he was exposed to asbestos when he was incarcerating all of the trash and garbage of the ship while he served in the Navy. He also felt that he was exposed to asbestos while working as an insulator as one of his assigned duties on the ship. He also reported that after the military he was employed by DuPont and worked on the steam lines. He related his belief that the majority of any exposure to asbestos occurred when he was working on the DuPont job. He indicated that he had been referred to a lawyer and was involved in a lawsuit for asbestos claims. He noted that his attorney had sent him to his own doctor, where he was diagnosed with asbestosis. He also noted that he had been part of a class action law suit. He indicated that he was not sick when he was referred to the attorney; he heard about the asbestos claim through the workplace and sought to be evaluated in 1982. The veteran reported that he had an occasional productive cough and sputum, but denied hemoptysis. He reported a decreased appetite and a 10 pound weight loss in the last year, but did not have any dyspnea, shortness of breath, or diagnosis of chronic obstructive pulmonary disease. He also denied being asthmatic or treatment for any lung ailments. He stated that he was not on any bronchodilators, was not using any inhalers, and was not on any oxygen. He did not have any periods of incapacitation regarding asbestosis or lung disease. He denied any underlying restrictive airway disease. After a physical examination and a chest X-ray, the examiner's assessment was that the veteran had asbestosis. The examiner indicated that the veteran's chest X-ray did meet the diagnosis of asbestosis, but that the veteran did not suffer from any of the health problems related to the disorder. He indicated that he or she was unable to determine if working in the incinerator room would increase the likelihood of a diagnosis of asbestosis without resulting in speculation, especially considering that the veteran was involved in a class action law suit with a life long industrial employer that he claimed gave him asbestosis. III. Criteria and Analysis Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. The appropriate evaluation for a hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state- licensed audiologist) including puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be solely on puretone threshold testing. One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) are 55 decibels or greater. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. Ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under Fenderson v. West, 12 Vet.App. 119 (1999), where, as here, the rating involves the initial rating assigned with the grant of service connection, the entire period is to be considered on appeal, and separate ratings may be assigned for separate periods of time, based on facts found. Official VA audiometry in July 2003 revealed an average puretone threshold of 48 decibels, with speech discrimination of 94 percent in the right ear, and an average puretone threshold of 60 decibels, with speech discrimination of 74 percent in the left ear. The official VA audiometry in April 2005 revealed an average puretone threshold of 59 decibels, with speech discrimination of 98 percent in the right ear, and an average puretone threshold of 68 decibels, with speech discrimination of 94 percent in the left ear. When the rating criteria are applied to the results of both the July 2003 and the April 2005 audiometries, they establish that the veteran had no worse than Level II hearing acuity in each ear. Combining the hearing level designations for the two ears under Table VII results in a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86), which would warrant rating under the alternate criteria of Table VIA, is not shown. The rating of hearing loss disability involves a mechanical application of the rating schedule to numeric designations assigned to official audiometry results. Here, such process establishes that a compensable rating is not warranted at any time during the appeal period; hence a staged rating is not warranted. Asbestosis There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, 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 VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. 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 first exposure and 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. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period 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). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or postservice evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the record shows that the RO complied with M21- 1 procedures. In June 2003, the RO requested all records of asbestos exposure or jobs the veteran performed. A response indicated that the requested records had been mailed. The RO sent the appellant a letter in July 2003 requesting medical evidence showing the diagnosis of asbestosis caused by asbestos, the dates and places that the veteran was exposed to asbestos in service, his organization and rank at the time of each exposure, how he was exposed, the names of other service persons who were with him at the time of exposure, what other things that may cause cancer (cigarettes, chemicals, etc.) was he exposed to while he was in service and postservice, his complete employment history pre- and post service, and how long he did each job. In a July 2003 statement and on his February 2005 Form 9, the veteran reported that his MOS was that of a Seaman. He indicated that the WWII vessels he served on, in those days, were highly contaminated with asbestos. He claimed that asbestos was used extensively throughout the ship in piping, as well as in insulation for heat and acoustic noise. While he was stationed on board the Naval vessels, he was subjected to inhalation, ingestion and physical application of toxic asbestos fibers. He asserted that he did work with asbestos postservice in the workplace; however, his initial exposure was in the Navy aboard a ship. On May 2006 VA examination, the veteran indicated that, postservice, he worked for 13 years in a paper mill and 20 years at DuPont as an outdoor machinist. He retired in 1983. With respect to the RO's request for a medical diagnosis of asbestosis caused by asbestos, the Board notes that in his application for compensation, the veteran indicated that he had been treated for asbestosis in 1945 while in the Navy. In June 2003, the RO requested records related to asbestos exposure and a response indicated that records were already mailed. The veteran's SMRs and personnel records are negative for any related asbestos exposure. In his NOD, the veteran referred to the 1990 letters by Dr. B. to show evidence of asbestos exposure. In 1990, Dr. B. indicated that the veteran had asbestos related pleural disease, but indicated that he could not state within a reasonable probability that interstitial fibrosis was present. However, the evidence shows that the veteran was referred to Dr. B. by his attorney as part of a class action law suit against his post-service employer, DuPont, for asbestos exposure. After careful review, the Board finds that there is no persuasive evidence of record that the veteran was exposed to asbestos during active duty service. There is absolutely no objective evidence that veteran was exposed to asbestos while serving in the Navy, or specifically while he was incinerating all of the trash and garbage of the ship or working with insulation. The service records (as well as the veteran's claimed MOS of Seaman) do not demonstrate that the veteran had a major occupation typically involving exposure to asbestos. M21-1, Part VI, 7.21(b)(1); see VAOPGCPREC 4- 2000. Moreover, the only medical opinion of record indicates that the veteran's asbestosis was secondary to his postservice occupational exposure. In May 2006, a VA examiner opined that he or she was unable to determine if working in the incinerator room would increase the likelihood of a diagnosis of asbestosis without speculation, especially considering that the veteran has been involved in a class action law suit with a life long industrial employer that the veteran, himself, claims gave him asbestosis. In short, the record does not show that the veteran was exposed to asbestos in service. Without persuasive evidence of exposure to asbestos during active duty service, there is no basis for awarding service connection for asbestosis. ORDER Entitlement to service connection for asbestosis is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. ____________________________________________ J. K. BARONE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs