Citation Nr: 0718646 Decision Date: 06/21/07 Archive Date: 07/03/07 DOCKET NO. 05-24 964 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for breathing problems including chronic obstructive pulmonary disease (COPD) and obstructive sleep apnea (OSA) due to asbestos exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran served on active duty from June 1948 to February 1950 and from November 1950 to September 1954. This matter comes to the Board of Veterans' Appeals (Board) from a June 2004 rating decision by which the RO denied, inter alia, entitlement to the benefit sought herein. In December 2005, the veteran presented testimony at a hearing before a hearing officer at the RO. In July 2006, the veteran testified at a hearing before the undersigned via video teleconference. FINDING OF FACT The veteran's breathing problems to include COPD and OSA are not shown to be related to his active duty service. CONCLUSION OF LAW Breathing problems to include COPD and OSA are not due to disease or injury that was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2006). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (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. In addition, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In this case, in April 2004 and June 2006 letters, the RO notified the veteran of the information and evidence needed to substantiate and complete his claim and 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 letters also advised the veteran to identify any additional information that he felt would support his claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). Finally, via the June 2006 letter, he was apprised of disability ratings and effective dates as mandated by the Court in Dingess/Hartman. In summary, the evidence does not show, nor does the veteran contend, that any notification deficiencies have resulted in prejudice. Therefore, the Board finds that to decide the appeal at this time would not be prejudicial to the veteran. Under VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In this case, the veteran's service medical records are on file as are service personnel records and VA medical treatment records. The veteran has identified no other evidence that would be pertinent to his claim. The Board has also considered whether a VA medical examination or opinion should be obtained and concluded that no medical examination is necessary herein. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board's rationale is contained in the body of the decision below. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Standard of Review When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Law and Regulations Service connection - in general 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 the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Service connection - 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. 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). 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. VAOPGCPREC 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. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Factual Background The veteran's DD Form 214 reflects that he served as a radio operator while in the Navy. The service medical records denote no respiratory problems, and exposure to asbestos was not mentioned. A September 2001 VA progress note reflects good air entry bilaterally as well as no wheezes, rhonchi, or rales. Another September 2001 notation reveals a 35-year smoking habit that entailed consumption of one and a half packs of cigarettes a day. Also that month, the veteran reported that he had snored for years and that he experienced some daytime sleepiness. During an unrelated VA examination in December 2001, the veteran denied COPD, asthma, shortness of breath, and a history of pulmonary emboli. However, that month, a VA physician diagnosed snoring and probable OSA that could be related to his hypertension. The veteran was instructed to schedule a sleep study. A December 2001 X-ray study of the chest revealed COPD without acute cardiopulmonary disease. In April 2003, probable sleep apnea was diagnosed. At his December 2005 hearing, the veteran testified that he did not recall experiencing any breathing problems in service but that he noticed such problems several years thereafter. He also indicated that no physician had ever attributed his breathing problems to asbestosis. He stated that he lived aboard a ship for some two months while it was being repaired. The testimony intimates that he was exposed to asbestos during that time. He also recounted that he slept on a top bunk under pipes that were wrapped in asbestos. During his July 2006 hearing, he testified that he slept under asbestos-covered pipes. The ship underwent repairs in Japan. The veteran contended that the removal of insulation during repairs caused asbestos exposure. When asked, he indicated that no physician had ever told him that that his breathing problems were asbestos related. He also denied having received a diagnosis of asbestosis. Discussion The Board does not question the veteran's testimony regarding his residence aboard a Navy ship that was undergoing repairs during an era in which asbestos exposure on Navy ships did take place. However, the veteran's assertions in this regard are insufficient to support his claim. The evidence contains no medical evidence suggesting that the veteran's COPD and OSA are the result of asbestos exposure. Indeed, the veteran has himself testified that he was never told that his respiratory disorders were caused by asbestos exposure. As well, the conditions from which he suffers are not ones necessarily associated with asbestos exposure. See M21-1, Part VI, para 7.21(a). Indeed, he has never been diagnosed with asbestosis, pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, or cancers of the urogenital system other than possible prostate cancer, which is not associated with asbestos exposure. Furthermore, his service occupation, i.e., that of a radio operator, is not one generally linked to asbestos-related conditions. M21-1, Part VI, para 7.21(b). There is no presumption of asbestos exposure. See Dyment, supra. Other than the veteran's assertions, there is no evidence that he was exposed to asbestos in service. In any event, there is no evidence that his respiratory conditions, COPD and OSA, are related to asbestos exposure, if such did indeed occur, or any other incident in service. Absent a nexus between the veteran's claimed respiratory disorders to include COPD and OSA and service, service connection for the veteran's claimed disability is denied. 38 C.F.R. § 3.303; see also VAOPGCPREC 04-00. The Board observes that the veteran is not shown to be competent to render medical diagnoses and opinions upon which the Board may rely. 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). Thus, the Board cannot credit his assertions regarding the origins of his claimed disability. Normally, under VCAA, VA is required to seek a medical opinion to assist claimants in establishing claims for VA benefits. 38 U.S.C.A. § 5103A(d). A medical opinion, however, need only be obtained if (1) there is competent evidence of a current disability, and (2) evidence that the disability or symptoms may be associated with service, but (3) the case does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id. Because there is no demonstrated factual basis to relate the veteran's COPD, OSA, or other respiratory disorder to service or to asbestos exposure therein, a medical opinion regarding whether the veteran's claimed respiratory disorders are directly related to service would be of no value in this case. VA is not required to provide assistance if no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. (CONTINUED ON NEXT PAGE) ORDER The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs