Citation Nr: 0725395 Decision Date: 08/15/07 Archive Date: 08/22/07 DOCKET NO. 02-06 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Barial, Associate Counsel INTRODUCTION The veteran had active military service from January 1952 to October 1957. This matter comes to the Board of Veterans' Appeals (Board) from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for asbestosis. In October 2005, the veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the RO. A transcript of the hearing is of record. The Board previously remanded this case three times for additional development, the first time for a medical opinion, the second for scheduling a Board hearing, and the third for a Stegall violation of the first remand. FINDING OF FACT The competent and most probative medical evidence does not show any current asbestosis related to in-service asbestos exposure. CONCLUSION OF LAW Asbestosis was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2006); VAOPGCPREC 4-2000. REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in January 2004 and May 2006, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in December 2004 and April 2007 supplemental statements of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claim. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the etiology of any current lung disability, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The veteran seeks service connection for asbestosis. He contends that he was exposed to asbestos in service while doing construction and demolition work and also living in barracks and onboard U.S. Navy ships. He testified that he now has shortness of breath, tightness in his throat, and a cough, and relates those symptoms to his asbestos exposure in service. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. As to claims involving service connection for asbestos- related diseases, there are no special statutory or regulatory provisions. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. VA must determine whether military records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21(d)(1). The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21- 1, Part VI, 7.21(a)(1). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(c). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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 and pipe products, and military equipment, etc. M21-1, Part VI, 7.21(b)(1). See VAOPGCPREC 4- 2000. The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. However, the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGCPREC 4-2000. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, there is sufficient evidence to show exposure to asbestos in service. The veteran served in the U.S. Navy from 1952 to 1957 and during his service was assigned to an Amphibious Construction Battalion. The Navy Department indicated in November 2001 that they had no way of determining to what extent the veteran was exposed to asbestos during his Naval service, but that the General Specifications for Ships during this period required heated surfaces to be covered with an insulating material and that it was highly probable that asbestos products were used to achieve this end. The Navy Department also noted that the veteran's occupation was a Construction Driver (CD) and found that the veteran's probability of exposure to asbestos was probable, although a positive statement that the veteran was or was not exposed could not be made. Based on the veteran's job in construction in service, which is noted by M21-1 to involve exposure to asbestos, and the findings of the Navy department, his exposure to asbestos in service is presumed. The next issue, therefore, is whether there is a relationship between in-service asbestos exposure and the claimed current disability. The favorable evidence consists of an undated private medical opinion submitted in March 2001, on which a physician found that based on the veteran's records and a chest x-ray, a diagnosis of asbestosis could be made with a reasonable degree of medical certainty. The physician noted that pulmonary asbestosis meant that the individual was suffering from an abnormality of the parenchymal lung tissue as a result of exposure to asbestos products. The report noted, however, that the dates of exposure were after service from 1959 to 1994, including working with a pulp machine and in maintenance. Another private physician submitted a letter in March 2001 stating that he was a board certified internist and had examined the veteran's medical records. He determined that on the basis of occupational history and the B-reading of the chest x-ray, the veteran had asbestosis. A March 2002 letter from a private physician notes that the veteran had been diagnosed previously with asbestosis and had a history of being onboard ship in the Navy as a Seabee with probable asbestos exposure during that time. The physician found that this could have contributed to any asbestos- induced lung disease that was present. The unfavorable evidence includes a December 2001 VA examination report on which the veteran stated that he was exposed to asbestos while on Navy ships between January 1952 and October 1957 and that he was in a construction type of occupation, but denied handling asbestos himself. He also indicated that he used to smoke one-and-a half packs of cigarettes until 1988 when he quit and that he also was diagnosed with coronary artery disease and essential hypertension for the past several years. The veteran denied any specific treatment for his lung condition or any past history of any significant lung disease. On physical examination, the examiner indicated that no significant lung disease was detected clinically at that time. The pulmonary function test was reported normal. The chest x-ray, which was discussed with the radiologist, was reported to be normal without any radiological evidence of pulmonary asbestosis. The examiner determined that the veteran's mild shortness of breath on physical exertion could be attributed to coronary artery disease and essential hypertension. A November 2004 VA examination report notes that there were some issues with shortness of breath. The examiner noted that in this particular case, the presence of asbestosis was determined by findings of a radiographic abnormality compatible with asbestosis along with abnormalities of pulmonary function testing. In the absence of findings of abnormalities on these tests, any history of exposure to asbestos or any complaints of dyspnea became irrelevant. However, the period of time of exposure to asbestos reportedly was relevant when a radiographic abnormality was due to asbestos exposure. The examiner reviewed the claims file and noted that the veteran had a relatively short period of exposure to asbestos while in the military and apparently had some further exposure to asbestos after service. The examiner noted that previously there was an impression of asbestosis based upon evaluation of radiographic studies and presence of coronary artery disease, as well as a long history of heavy smoking, although the veteran eventually quit. The examiner reviewed a November 2004 chest x-ray, which showed that the heart and mediastinal structures appeared normal. The lungs were clear of infiltrates and there were no significant areas of pleural thickening or pleural plaques. The examiner noted that he was rather impressed by the absence of changes of pulmonary fibrosis or nodularity and that he could state with a high degree of certainty that the veteran did not have clinically significant asbestosis. Additionally, to support this conclusion, the veteran had a completely normal pulmonary function test with no evidence of any restrictive impairment that would be expected with clinically significant asbestosis. A further support to the absence of significant asbestosis reportedly was the presence of an excellent arterial partial pressure of oxygen for a 69-year-old patient. In conclusion, the examiner found that the veteran did not have clinically significant asbestosis and any dyspnea present would have to be attributed to another disorder. An August 2006 VA examination report shows that the claims file was extensively reviewed. The veteran reportedly had asbestos exposure in service between 1952 and 1957 but the intensity of the exposure was not clear. He indicated that he had shortness of breath on walking, but stated that he could walk approximately half a mile before having to sit down. He also had an unproductive cough, which he had for many years, gradually increasing over the last several years. He reportedly worked in a paper mill for almost 30 years, the first 20 of which as a maintenance pipe fitter and last 10 in production. He quit tobacco in 1988, but prior to this had smoked almost 35 years, since 1952. On physical examination, the lungs were clear to auscultation throughout all fields, without wheezes, rales, or rhonchi. August 19, 2006 chest x- rays showed an interval increase and size of a nodular density in the lower lung field on the lateral view of the chest; it was not mentioned as to which lung field this was in the report. A subsequent computed tomography (CT) scan was done on August 15, 2006, which showed that no nodular masses were seen in the lungs, corresponding to the abnormality noted on the lateral chest radiograph. There were bridging osteophytes at T9 through 10, which were believed to account for this opacity. There was no consolidation, pleural effusion, adenopathy, or endobronchial lesion. The heart, pericardium, and remainder of the chest wall were all normal and intact. A pulmonary function test done in July 2006 showed normal lung volume, normal diffusion capacity, and normal arterial blood gas. The examiner noted the previous November 2004 report and that the presence of coronary artery disease and long history of smoking could account for the veteran's complaints of being somewhat short of breath. At the time of the radiograph studies, the lung then, as on the present examination, was clear of infiltrates with all mediastinal structures appearing normal. There was no evidence then, as on present examination, of pleural thickening or pleural plaques. Also, then, as on present examination, the veteran had normal arterial oxygen pressures and completely normal function tests with no evidence of any restrictive impairment that would be expected with clinically significant asbestosis. The diagnosis was no objective evidence of clinically significant asbestosis. In November 2006, the same examiner was asked to clarify the significance of a "B reading of a chest x-ray," which had been noted on a March 2001 private medical statement that found evidence of asbestosis. The examiner explained that according to the National Institute for Occupational Safety and Health (NIOSH), under their certification in chest radiography, a B reader examination was originally developed to identify physicians qualified to serve in national pneumonoconiosis programs. The B reader test simply ensured that readers could demonstrate a certain competency in classifying a set of radiographs for the pneumonoconiosis and related diseases using the Internal Labor Office (LCO) classification system. A physician who had been trained as a pulmonologist reportedly far exceeded these qualifications. The examiner went on to note the positive medical opinions of record and stated that she respectfully disagreed with the physicians' assessments of an asbestosis diagnosis for the following reasons. She stated that there are three key findings that are necessary for a diagnosis of asbestosis: (1) A reliable history of exposure to asbestos with a proper latency period from the onset of exposure to the time of presentation. Although the veteran fit these criteria, the normal exposure time of asbestos to become clinically significant 20 to 30 years later would be at least 10 years. The veteran did not seem to fit these criteria and although the intensity of the exposure was not documented, this would be a factor. (2) Also a key finding needed for documentation was definitive evidence of interstitial fibrosis manifested by reduced lung volumes and/or diffusion capacity of carbon monoxide, and on physical examination findings such as end- inspiratory crackles or the presence of typical chest radiographic changes consistent with interstitial lung disease. The veteran currently had no findings consistent with these criteria. (3) The third key finding was the absence of other causes of diffuse parenchymal lung disease. Review of the veteran's chart showed that he definitely did have other causes for parenchymal lung disease, including longstanding heavy tobacco use, as well as almost three decades working with the private sector in a paper mill as a pipe fitter. In summary, the examiner found that the veteran's case did not fulfill the criteria necessary for a diagnosis of asbestosis. It was the examiner's opinion that the veteran had no evidence of clinically significant asbestosis. The negative evidence in this case outweighs the positive. The two favorable March 2001 opinions are not probative because even though the physicians diagnosed asbestosis, they only note the veteran's post-service occupational exposure to asbestos and do not indicate any review of the claims file. The March 2002 private physician's opinion that the asbestos exposure in service could have contributed to the veteran's current asbestosis diagnosis is speculative at best. A medical opinion based on speculation, without supporting clinical data or other rationale does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The negative medical opinions dated in November 2004, August 2006, and November 2006 are of greatest probative value in light of the physicians having reviewed the evidence, discussed the evidence and examined the veteran. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the opinion of a physician that is based on a review of the entire record is of greater probative value than an opinion based solely on the veteran's reported history). The examiners also offered extensive rationale for why the veteran did not have asbestosis or any other respiratory disorder related to asbestos exposure in service, including normal chest x-ray and pulmonary function tests, and excellent arterial partial pressure of oxygen. The veteran's current shortness of breath was attributed to other factors, including coronary artery disease, hypertension, and history of smoking. Although the record shows evidence of exposure to asbestos in service, service connection cannot be granted if there is no present disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. The medical evidence further notes that other factors in the veteran's history could relate to a current lung disorder, including a long post-service history of exposure to asbestos, and a long smoking history. Although the veteran has asserted that he has asbestosis related to asbestos exposure in service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions have been considered, they are outweighed by the competent and most probative evidence of record, which does not show a diagnosis of asbestosis related to asbestos exposure in service. Competent medical experts make this opinion and the Board is not free to substitute its own judgment for those of such experts. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The preponderance of the evidence is against the service connection claim for asbestosis; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs