Citation Nr: 0715230 Decision Date: 05/22/07 Archive Date: 06/01/07 DOCKET NO. 04-41 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to in-service asbestos exposure. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION This case comes before the Board of Veterans Appeals (the Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (the RO). Procedural history The veteran served on active duty from June 1963 to December 1967. The RO received the veteran's claim in February 2004. The May 2004 rating decision denied the claim and the veteran appealed. The veteran provided personal testimony at a videoconference hearing which was chaired by the undersigned Veterans Law Judge in May 2006. A transcript of the hearing has been prepared and is associated with the veteran's VA claims folder. In October 2006, the Board remanded the claim for further evidentiary development. This will be discussed below. The claims folder has been returned to the Board for further appellate proceedings. Issues not on appeal In May 2005, the RO received the veteran's claim to reopen a previously denied hearing loss claim and to reopen a previously denied claim for service connection for peripheral neuropathy. The RO denied these claims in an August 2005 rating decision. To the Board's knowledge, the veteran has not appealed that decision. The issues addressed in those decisions are thus not in appellate status, and they will not be mentioned any further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDING OF FACT A preponderance of the competent medical evidence does not demonstrate that the veteran's COPD is etiologically related to any incident of service, including claimed exposure to asbestos. CONCLUSION OF LAW The veteran's COPD was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for COPD caused by asbestos exposure during service. In substance, he contends that while assigned to the USS Colonial (LSD 18) and USS Point Defiance (LSD 31), he was exposed to asbestos which was used as insulation on steam piping he repaired throughout both ships. In the interest of clarity, the Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall consideration As was alluded to in the Introduction, the Board remanded this case in October 2006. The reason for the remand was to provide the veteran with a VA examination and to obtain a medical nexus opinion from the examiner. The claim was then to be readjudicated by the agency of original jurisdiction. This was accomplished. The VA examination was completed in December 2006, and the claim was readjudicated later that month. The Board's remand instructions have therefore been complied with. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA enhanced VA's duty to notify a claimant about the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefined VA's obligations with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2006). Notice The VCAA requires VA to notify the claimant and the claimant' s representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant' s representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After careful review, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The veteran was informed in VCAA letters dated February 2004 and November 2006 VCAA that to support his claim, there must be evidence which shows that: 1. You had an injury in military service or a disease that began in or was made worse during military service, or that there was an event in service which caused injury or disease; 2. You have a current physical or mental disability. 3. There is a relationship between your current disability and an injury, disease, or event in military service. See page 6 of the February 2004 VCAA letter and page 4 of the November 2006 VCAA letter. The veteran was further informed in the February 2004 and November 2006 letters that VA would provide a medical examination if it was deemed necessary to substantiate his claim, and that VA would obtain records such as records held by Federal agencies, including service records and VA medical records, employment records, and private medical records so long as he provided sufficient information to allow VA to obtain them. The Board also notes that the veteran was informed in the February 2004 letter that if he had any additional information or evidence to let VA know about it. In essence, the veteran was asked to "give us everything you've got", in compliance with 38 C.F.R. § 3.159(b)(1). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (the Court) observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for service connection, section 5103(a) and section 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the first two elements, veteran status and a current disability are not at issue with regard to the claim of COPD. The claim was denied because of lack of evidence of element (3), a connection between the veteran's service and the disability. As is indicated above, the veteran has received proper notice of that crucial element. Because service connection was not granted, elements (4) and (5), degree of disability and effective date, are rendered moot. In other words, any lack of advisement as to those elements is meaningless, because a degree of disability and an effective date were not assigned. Therefore, lack of notice regarding degree of disability and assignment of an earlier effective date is immaterial. In any event, the veteran was provided notice of elements (4) and (5) in the November 2006 VCAA letter. The Board thus finds that the veteran has received proper notice in accordance with Dingess. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate the claims now under consideration and that there is no reasonable possibility that further assistance would aid in substantiating them. Specifically, the RO has obtained the veteran's service medical records and service personnel records, and has obtained reports of VA treatment of the veteran which will be discussed below. The Board observes that the veteran was provided medical examinations in October 2004 and in December 2006, and the evidence includes treatment records in VA outpatient facilities. The report of the medical examinations and reviews reflect that the examiners recorded the veteran's past medical history, noted his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions. Accordingly, the Board finds that under the circumstances of this case, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2006). As indicated in the Introduction, the veteran and his representative presented evidence before the undersigned VLJ in a video conference in May 2006. The Board will therefore proceed to a decision on the merits. Pertinent law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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 a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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, military equipment, etc. 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). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The veteran contends that his current COPD is a result of asbestos exposure in service. As detailed above, in order to establish service connection for the claimed conditions, there must be (1) medical evidence of a current disability; (2) evidence of the in- service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), the Board finds that there is a February 2005 diagnosis of COPD. The December 2006 VA examiner also determined that the veteran has COPD. Hickson element (1) has been met. With respect to Hickson element (2), disease or injury in service, the Board will separately address the matters of in- service disease and in-service injury. Regarding disease, the veteran's service medical records do not indicate that the veteran complained of or was treated for lung problems in service. Indeed, the medical evidence indicates that lung problems were first indicated in the 2004, more than 35 years after the veteran left military service in 1967. With respect to in-service injury, the alleged injury is exposure to asbestos in service. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. Review of the veteran's DD Form 214 and personnel records indicates that his petty officer rating was an engineman. The veteran testified at the May 2006 hearing that as an engineman, he was often required to repair steam lines which were covered with an insulation material made with asbestos. In addition, the veteran testified that he maintained and repaired the ship's boilers which also exposed him to asbestos. See for example hearing transcript, pages 3, 6, 7,8,11, and 14. The evidence supports a finding that the veteran was exposed to asbestos during service. Element (2) is satisfied to that extent. With regard to crucial element (3), medical evidence of a nexus between the veteran's service and his current COPD, as was noted above the Board remanded the claim for further development regarding the etiology of the veteran's COPD, particularly requesting that a medical examiner provide an opinion whether the COPD was related to asbestos exposure. In response, a medical examiner opined in a December 2006 medical examination report that: It is my opinion that his [the veteran's] present mild changes of chronic obstructive pulmonary disease is not likely due to the exposure of the asbestos while he was in the service as there is no radiological evidence of asbestosis. There are no changes in the pleura visualized on CT scan of the chest and no evidence of asbestosis. The October 2004 VA examiner rendered a similar opinion, stating "it looks like the veteran has no respiratory symptoms related to asbestos exposure given that he has a normal x-ray." There is no other competent medical opinion of record. To the extent that the veteran contends that his COPD was caused by asbestos exposure in service, it is well established that lay persons without medical training, such as the veteran, are not competent to attribute symptoms to a particular cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The record reveals no other possible in-service explanation for the veteran's COPD, and the veteran himself has not contended that any such exists. In short, element (3) is also not satisfied, and the claim fails on that basis. In conclusion, for the reasons and bases expressed above, the Board finds that a preponderance of the evidence is against the veteran's claim. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for COPD, to include as due to in-service asbestos exposure, is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs