Citation Nr: 0719636 Decision Date: 06/29/07 Archive Date: 07/05/07 DOCKET NO. 04-12 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an asbestos related lung disorder, to include asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from September 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. That rating decision, in part, denied service connection for asbestosis, which the veteran had claimed as "breathing problems." FINDINGS OF FACT 1. A private radiology report dated June 2002 indicates that a chest x-ray was taken and revealed interstitial fibrosis of both lung bases typical of previous asbestos exposure and indicating asbestosis. 2. A second private radiology report dated June 2002 indicates that the veteran's chest x-rays were read by a certified B-reader with a conclusion of parenchymal changes consistent with asbestosis / mixed-dust disease. 3. A private medical report dated June 2003 indicates clinical signs and pulmonary function tests (PFTs) to support a diagnosis of asbestosis; the radiology report relied on in this diagnosis was the June 2002 B-reader report. The only history of asbestos exposure indicated in making this diagnosis was the veteran's post-service asbestos exposure. 4. A June 2004 VA examination report reveals that the veteran does not have a current diagnosis of asbestosis or any asbestos related disorder; a high resolution computed tomography (CT) examination was conducted to support this diagnosis. 5. Competent evidence of record reveals that, although the veteran has reported that he was exposed to asbestos aboard the aircraft he serviced during service, he had a long post- service history of exposure to asbestos. 6. There is no medical evidence linking any current respiratory disorder to any incident of the veteran's military service, to include claimed asbestos exposure during such service. CONCLUSION OF LAW A lung disorder, to include asbestosis, was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Initial Matters Before proceeding with an analysis of the merits, the Board must examine whether the requirements under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. The VCAA 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, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); 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 provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). In this case, VA has met the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A letter dated in April 2003 satisfied the duty to notify provisions with respect to the claim. The letter informed the veteran of the information and evidence necessary to substantiate the claim, what VA would seek to provide and what the claimant was expected to provide. While the letter did not explicitly ask that the appellant provide any evidence in his possession that pertains to the claim, as per § 3.159(b)(1), he was advised of the types of evidence that could substantiate his claim and to ensure that VA receive any evidence that would support the claim. Logically, this would include any evidence in his possession. Moreover, this letter asked for exposure information specific to his claim for service connection for asbestosis. The Board further observes that 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. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection before the RO issued the rating decision on appeal, but he was not provided with notice of the type of evidence necessary to establish a rating and effective date for the disability. Despite the inadequate notice provided to the veteran in this regard, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Specifically, the veteran was informed of the need to provide evidence specifically related to his claim for service connection for asbestosis. He provided the evidence and a VA examination of the veteran was conducted for the purpose of verifying the diagnosis and obtaining a medical nexus opinion. Since the evidence does not support a grant of service connection, any question as to the appropriate rating and effective date to be assigned is moot and any defect with respect to this VCAA notice requirement is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005); See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case.) If there was any notice deficiency, the Board finds that the presumption of prejudice on the VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) in this case, based on the veteran's contentions and the communications provided to the veteran by the VA over the course of this appeal, he is found to be reasonably expected to understand from the notices provided what was needed. See RO's letter dated in April 2003, the rating decision of August 2003, the notice of disagreement dated in August 2003, the statement of the case dated in February 2004, the substantive appeal dated in March 2004, the veteran's hearing testimony at a hearing in May 2004, and the supplemental statement of the case dated in December 2004. The Board has reviewed all of the evidence in the veteran's claims file, which includes, but is not limited to: service medical records; service personnel records; his hearing testimony and contentions; articles submitted by the veteran, VA medical treatment records; and private medical treatment records. The Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show with respect to the veteran's claim for service connection for asbestosis. II. Service Connection Service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.303(a), 3.304 (2006). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d). Establishing direct service connection for a disability, which has not been clearly shown in service, requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(d); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease identity is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has VA promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB circular was subsumed verbatim as § 7.21 of VA Manual ADMIN21 (M21-1). Subsequently, VA has reorganized and revised this manual into its current electronic form M21-1MR. While the form has been revised, the information contained therein has remained the same. More recently the Court has held that neither MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). III. Military Service and Asbestos Exposure The veteran served in the United States Air Force Navy from September 1965 to January 1969. The veteran's discharge papers, DD Form 214, and other service personnel records, also reveal that his military specialty was as a jet engine mechanic and his duty titles were Jet Aircraft Mechanic and Assistant Crew Chief. In written statements and hearing testimony provided before a Decision Review Officer (DRO) in May 2004, the veteran asserted that he was exposed to asbestos during service. He indicates that during maintenance on aircraft he removed panels and was exposed to asbestos. The Asbestos advisory information contained in the Manual M21-1MR provides some guidance with respect to occupational asbestos exposure. It states that Asbestos is a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos include: steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. . . . Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s. Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 9, a. The information further states that Some of the major occupations involving exposure to asbestos include: 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 sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 9, f. The advisory information does not specifically indicate the use of asbestos in aircraft. The only evidence of any asbestos exposure during service is in the form of the veteran's written statements and hearing testimony. The evidence of record shows that the veteran has a long history of post service exposure to asbestos and other particulate toxins. A May 2003 VA psychiatric evaluation report contains a report of employment history which included work "as a steam engineer for about nine years." In June 2003, a private medical examination of the veteran was conducted for evaluation of "asbestos-related diseases." This examination report lists the veteran's post-service employment history as: Worked for Delta Southern in Baton Rouge, LA from 1970-1971 as a sweeper and steel grinder; for Cleaver Brooks from 1971-1973 as a laborer; and for Cooper Steel Manufacturing from 1975-1978 as sander on asbestos boards. He was involved with large storage tanks lined with asbestos. While employed at Cleaver Brooks he installed blanked asbestos insulation around boilers and asbestos tiles within the boilers, and covered pipes to boilers with asbestos insulation. The Board notes that the veteran submitted a copy of this examination report to the DRO at the May 2004 hearing. The veteran hand wrote "U.S. Air Force 1965-1969 ACFT Mech" on the examination report in the area of the employment history. However, it is clear that this was not part of the asbestos exposure history reported to, or considered by, the physician. Rather, it is a hand written note added by the veteran at a later date. As noted above, VA must ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). IV. Medical Evidence of Current Asbestos Related Disability A private radiology report dated June 2002 indicates that a chest x-ray was taken and revealed interstitial fibrosis of both lung bases typical of previous asbestos exposure and indicating asbestosis. The Board notes that this report does not indicate what specific history of asbestos exposure was being considered in rendering this assessment. A second private radiology report dated June 2002 indicates that the veteran's chest x-rays were read by a certified B- reader. The report indicates that the x-ray "film quality is grade 2 due to slight under exposure." The reading radiologist's conclusion was of parenchymal changes consistent with asbestosis / mixed-dust disease "provided the subject's exposure history and period of latency are appropriate." This report indicates that the B-reader was not aware of any of the specifics of the veteran's asbestos exposure history. A private medical examination of the veteran was conducted in June 2003. The examining physician conducted review of the veteran's medical and asbestos exposure history. As noted in section II above, the asbestos exposure history indicated the only asbestos exposure being during the veteran's post- service employment in the 1970s. The veteran reported symptoms of shortness of breath which had increased over the last year. Physical examination of the veteran's lungs revealed them to be clear, and "no rales, bronchi or crackles were heard." PFTs were conducted and were essentially normal with the exception of a moderate reduction in diffusing capacity. The radiology evidence relied upon was the June 2002 B-reader report. The examining physician's assessment was that the veteran was a person "with a history of occupational exposure to friable asbestos materials and an adequate latency period, who now demonstrates interstitial abnormalities on chest x-ray as well as changes on pulmonary function test . . . These findings are supportive of a diagnosis of asbestosis." The Board notes that M21-1 also provides specific guidance with respect to the requirements for a diagnosis of asbestosis. It states that: A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include: dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 9, e (emphasis added). To the extent that the June 2003 medical report specifically refers to the veteran's extensive post-service history of asbestos exposure, that must be the history used to make the diagnoses. A VA outpatient treatment report dated August 2003 indicates a diagnosis of asbestosis by history, while an October 2003 treatment report indicates a diagnosis of asbestosis. Both reports reveal that the veteran complained of symptoms of shortness of breath. However, the diagnoses indicated appear to be the result of the veteran reporting the findings of the June 2003 private examination, rather than any independent assessment by the VA medical personnel at time. In June 2004, a VA examination of the veteran was conducted. The veteran reported to the examiner being exposed to asbestos during service as well as the extensive post-service exposure history noted on the private examination report. The veteran reported that he was diagnosed with asbestos in 2002 in response to a class action lawsuit concerning a private company. He indicated that he was taking no respiratory medications. Physical examination revealed the lungs were clear and no rales, rhonchi, or wheezes were heard. There was no prolonged expiratory phase with breathing and no peripheral edema or clubbing was noted. A chest x-ray was conducted and revealed the lungs were normal without any noted abnormalities. Because these findings were different than those reported on the private x-ray reports, a high-resolution CT chest scan was ordered and revealed "no evidence of interstitial thickening or parenchymal abnormalities." The diagnosis was "asbestos exposure without evidence of pulmonary asbestosis." The examining physician's remarks indicate that the claims file was fully reviewed and that he specifically considered the private medical evidence that the Board has noted above. The physician specifically noted that the private examination report only indicated a history of post-service asbestos exposure. Moreover, the physician remarked that when the VA chest x-ray examination failed to show any of the abnormalities noted in the private x-ray reports a high- resolution CT was ordered. High-resolution CT chest scans were noted to be "more sensitive and specific for the diagnosis of asbestosis than a plain chest x-ray." The only abnormality noted on the CT examination was bilateral pleural thickening of the lung bases which "could be consistent with asbestos exposure, but not diagnostic of asbestosis." The entire case was reviewed by a second VA physician, a pulmonologist, who stated that based "on his normal spirometry, normal chest x-ray, and high resolution chest CT which is consistent with exposure only I do not feel that he has pulmonary asbestosis." The preponderance of the evidence is against the veteran's claim. There are two private x-ray reports and a private medical examination report showing diagnoses of asbestosis. To the extent that these reports indicate and consider any history of asbestos exposure, they only relate the disability to the veteran's post-service exposure, and not to any possible exposure during service. However, the preponderance of the evidence is against a finding that the veteran has a current diagnosis of asbestosis. The June 2004 VA examination report indicates that the veteran does not have asbestosis. This diagnosis is more conclusive as it was based upon a high-resolution CT chest scan rather than the underexposed x-ray films relied upon by the private B-reader. Moreover, the examination report specifically addresses and discounts the prior diagnoses of asbestosis. The Board finds that the June 2004 VA examination report is highly probative concerning the issue of current diagnosis based on the thorough diagnostic studies that were completed, the rationale that was provided in the examination report for the conclusion reached, and the review of the claims file including the private medical evidence in reaching a medical conclusion. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the veteran has asbestosis. Since the veteran does not have the disability claimed, service connection must be denied. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also, Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). To the extent that the private medical evidence shows diagnoses of asbestosis, the preponderance of the evidence is still against the veteran's claim for service connection. Specifically, the private medical evidence of record does not link any current asbestosis that the veteran may have to his military service or to any asbestos exposure the veteran may have had during service. Rather, the private medical evidence of record specifically indicates the veteran's extensive post-service history of asbestos exposure as the history relied upon in making the diagnosis of asbestosis. With no medical evidence linking any current asbestosis to the veteran's military service, the claim must be denied. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.") "Proof of direct service connection thus entails proof that exposure during service caused the malady that appears many years later." Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board notes that the veteran has submitted multiple articles concerning asbestosis in support of his claim. Those articles have been reviewed but they are too general in nature to provide, alone, the necessary evidence to show that the veteran has asbestosis and, if so, that it is related to claimed in-service asbestos exposure. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, textbook, or article must provide more than speculative, generic statements not relevant to the veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The documents in the current case do not address the facts of the veteran's specific case. The Board concludes that the documents do not show the veteran has asbestosis nor do they to any degree of specificity identify a relationship or connection between the veteran's claimed in-service exposure to asbestos and the development of a lung disorder. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an asbestos related lung disorder, to include asbestosis, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs