Citation Nr: 0726038 Decision Date: 08/21/07 Archive Date: 08/29/07 DOCKET NO. 05-33 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a compensable evaluation for a scar of the scalp. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for headaches secondary to a head injury. 3. Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran had active service from February 1953 to March 1954. This appeal arose before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The record shows that the veteran's claim for service connection for headaches secondary to a head injury was previously denied by the RO in August 1973. The veteran did not appeal that decision, and it became final. See 38 C.F.R. § 3.104(a). Therefore, the current issue is as characterized on the first page of the present decision. In July 2007, the veteran's representative filed a motion to advance this case on the Board's docket. The motion was granted on August 3, 2007. The issues of entitlement to a compensable evaluation for the scalp scar, and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches secondary to a head injury, are herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. FINDING OF FACT The veteran's asbestosis is not related to his period of active military service. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159, 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007). In March 2004, the RO sent the veteran a letter informing him of the types of evidence needed to substantiate his claims and its duty to assist him in substantiating his claims under the VCAA. The March 2004 letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claims, such as records in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send medical records showing he has a current disability as well as records showing a relationship between his claimed disabilities and service, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide to provide "any evidence in your possession that pertains to your claim." See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the March 2004 letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was advised of his opportunities to submit additional evidence. Subsequently, an October 2004 SOC provided him with yet an additional 60 days to submit more evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, to whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claim herein is being denied, such matters are moot. II. Applicable laws and regulations 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 which 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 discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." 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. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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. As to occupational exposure, exposure to asbestos has been shown in in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further 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. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, 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). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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 to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. III. Factual background and analysis The veteran contends that he was exposed to asbestos while on active duty. He asserts that he worked around ships, cleaning them. He says he was exposed to asbestos while he was being transported on ships overseas. His military records show that he served in the U.S. Army, as a light truck driver. The veteran submitted numerous private treatment records. A physician noted in 1998 that the veteran was not sure when he had been exposed to asbestos. He noted that after service he had worked at the Alcoa and DuPont plants, and that he had been a farm laborer, a pipeline worker, and a machinist. He commented that he had been around a lot of boilers and pipe insulation. He complained of frequent wheezing and chest tightness. There were crackles present. A chest X-ray showed parenchymal and pleural changes consistent with previous asbestos exposure. A September 2000 private outpatient report referred to the veteran's post-service occupational exposure to asbestos: he had been exposed to this material while working around firebricks and kilns, doing that work from his mid-20's until the 1970's. The impression noted interstitial infiltrates on chest X-rays, as well as a restrictive process noted on his pulmonary function tests (PFTs). He was found to have pneumoconiosis; in particular, he had pulmonary asbestosis and pulmonary silicosis. In December 2002, a Dr. S. prepared a report for the veteran's then attorney. The veteran indicated to this physician that he was unaware of any asbestos exposure while in service. However, he described a great deal of post- service occupational exposure. He had reportedly worked around a great number of chemical plants, foundries, pipelines, and well digging. As a laborer, he had worked around asbestos pipe covers and pipe fitters. He had also worked for the Alcoa and DuPont Corporations, manufacturing boilers and installing new firebrick. He stated that he had also knocked asbestos off pipes and had worked with pipe fitters, mixing asbestos mud. He would then trowel the asbestos mud onto the pipes. Afterward, he had used air hoses to clean up asbestos dust. This physician stated that, with a reasonable degree of certainty, it could be concluded that the veteran had interstitial fibrosis caused by pulmonary asbestosis. After a careful review of the evidence of record, the Board finds that service connection for asbestosis has not been established. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). We are aware that lay statements may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, No. 07-7029, slip op. at 7 (Fed. Cir. July 3, 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The service medical records do not show any treatment for, or complaints of, any lung disorders. The post-service evidence shows that the veteran had significant occupational exposure to asbestos, and has been diagnosed with pulmonary changes consistent with asbestosis. It is true that the veteran's lay statements may be competent to support a claim for service connection by describing events or disabilities that are susceptible of observation by lay persons, as discussed above. If the veteran had an ongoing respiratory condition since his separation from service, he is certainly competent to report these symptoms. However, the Board does not believe that any specific respiratory disorder, as opposed to symptoms of breathing difficulties, is subject to lay diagnosis. Ascertaining the cause and etiology of pulmonary symptoms, that is, what disorder these symptoms could be related to, requires specialized medical training, which there is no evidence the veteran has in tis case. The Board has carefully considered the contentions of the veteran that he had brief exposure to asbestos while being transported overseas on military vessels; however, the objective evidence clearly demonstrates significant and long- term post-service occupational exposure to asbestos. The veteran has not presented any evidence that any brief, undocumented, exposure to asbestos onboard military vessels was the cause of his diagnosed asbestosis, as opposed to his extensive, documented, post-service exposure. With all due respect for the veteran's sincere belief in the validity of his claim for compensation, he does not have the medical expertise needed in this case to either diagnose his respiratory disorder or to render an opinion as to its etiology. See Espiritu, supra. As a consequence, the Board finds that the weight of the evidence is against a finding of a disease or injury in service or of a nexus between his currently diagnosed asbestosis and his service. The preponderance of the evidence is thus against the claim for service connection for asbestosis, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for asbestosis is denied. REMAND The veteran has also requested that a compensable evaluation be assigned for the scar on his scalp, and that his claim for service connection for headaches secondary to a head injury be reopened and service connection awarded. In regard to the scar on the scalp, the veteran has asserted that it is occasionally raw and irritated. The scar was last examined by VA in June 2004, and he has indicated that it has worsened since that time. Despite these assertions, no additional examination has been conducted. The Board finds that such an examination would be helpful in this case. The veteran is hereby advised of the importance of reporting for any scheduled examination, and of the consequences of failing to so report. See 38 C.F.R. § 3.655. In regard to the claim to reopen his claim for service connection for headaches as secondary to a head injury, the Board has already noted that this claim was denied in August 1973, and the veteran did not appeal that decision. However, the RO did not appropriately address the claim as one requiring the submission of new and material evidence. For the Board to address this issue on the basis of whether new and material evidence has been submitted, without the RO doing so first would be prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (before the Board addresses a question that has not been addressed by the RO, the Board must consider whether the veteran would be prejudiced thereby). This is particularly so since the veteran has not been provided with notice as to the evidence needed to reopen previously denied claims as mandated by Kent v. Nicholson, 20 Vet. App. 1 ( 2006), which was decided during the pendency of this appeal. In Kent, the Court of Appeals for Veterans Claims found that VA must notify a claimant of the evidence and information needed to reopen the claim, as well as the evidence and information needed to establish entitlement to service connection for the underlying condition(s) claimed (that is, that the obligations under Kent do not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service connection claim, see Dingess, supra). In addition, VA must consider the bases for the prior denial and respond with a notice letter that describes what evidence would be needed to substantiate the element or elements that were found to be insufficient to establish service connection in the previous denial. Such notice to the veteran is essential since the question of materiality depends on the basis on which the prior denial was made and the failure to notify a claimant of what would constitute material evidence would be prejudicial to the claimant. Therefore, this issue must be remanded so that the veteran can be provided with the appropriate notice and the claim considered on a new and material evidence basis. In view of he foregoing, the case is REMANDED for the following action: 1. The veteran should be afforded a dermatological examination in order to ascertain the current nature and degree of severity of the service-connected scar of the scalp. The examiner must be provided with the entire claims file to review in conjunction with the examination, and the examiner must indicate in the examination report that the claims folder was so reviewed. a. The examination should indicate whether or not there is at least one characteristic of disfigurement. b. NOTE: The eight characteristics of disfigurement are: skin indurated and inflexible in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; skin texture abnormal (irregular, atrophic, shiny, scaly, etc)in an area exceeding six square inches; skin hypo- or hyperpigmented in an area exceeding six square inches; scar adherent to the underlying tissue; surface contour of scar elevated or depressed on palpation; scar at least one-quarter inch in length; or scar five or more inches in length. c. The examination should also indicate whether or not there is an unstable superficial scar or a superficial scar that is painful on examination. d. All indicated special studies deemed necessary must be conducted. A complete rationale for any opinions expressed must be provided. 2. The RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements pertaining to the issue of whether new and material evidence had been presented to reopen the claim for service connection for headaches as secondary to a head injury, to include both the Dingess and Kent decisions of the Court, particularly as pertaining to cases involving a requirement of new and material evidence to reopen a previously finally denied claim. 3. Once the above-requested development has been completed, the veteran's claim for a compensable evaluation for the service-connected scar on the scalp and whether new and material evidence has been submitted to reopen the claim for service connection for headaches as secondary to a head injury should be readjudicated. If any decision remains adverse to the veteran, he and his representative must be provided with an appropriate supplemental statement of the case, and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs