Citation Nr: 0726083 Decision Date: 08/21/07 Archive Date: 08/29/07 DOCKET NO. 06-10 082 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lung disease, claimed as due to asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, and his spouse and mother ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from October 1971 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 RO decision, which denied a claim for service connection for an asbestos related disease. (The matter of service connection for asthma is not presently before the Board but was the subject of a prior final RO decision in February 2001.) In April 2007, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims folder. The record reflects that the veteran submitted additional evidence to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. FINDING OF FACT The veteran's currently diagnosed chronic obstructive pulmonary disease (COPD) and lung diseases are not related to a disease, injury, or claimed asbestos exposure in service. CONCLUSION OF LAW Service connection for a lung disease, as related to asbestos exposure is not warranted. See 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2006). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it 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. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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) request that the claimant provide any evidence in his possession that pertains to the claim. Letters dated in March 2005 and July 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2006); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The March 2005 and July 2005 letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection for a lung disease, as related to asbestos exposure, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and relevant VA medical records are in the file. All records identified by the veteran as relating to this claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With a service connection claim, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2006). The veteran was provided a VA examination in June 2005, accompanied by a July 2005 addendum, which addressed the nature and etiology of the veteran's COPD and lung diseases. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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. 38 C.F.R. §3.303(b) (2006). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (2006). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence 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 Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The veteran is seeking service connection for a lung disease, as related to asbestos exposure. He essentially contends that, while serving on the Loring Air Force Base from 1971 to 1975, he was exposed to asbestos, which resulted in a lung disease. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides 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 that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). The veteran claims that he was diagnosed with asbestosis in 1998 or 1999 and with COPD in 2005. See Hearing Transcript, April 2007. In VA Medical Center (VAMC) treatment records from October 1999, the veteran was noted as having COPD and a restrictive disease with plaques. In June 2005, the veteran underwent a VA examination, at which he was diagnosed with severe COPD. A July 2005 addendum to this VA examination report noted that the veteran had "pulmonary changes consistent with underlying obstructive airway disease with a restrictive component due to calcific pleural disease as well as x-ray findings consistent with nonmalignant asbestoses related pleural disease." An opinion was also noted in the addendum which stated that asbestos does not cause chronic obstructive pulmonary disease, but can lead to restrictive lung disease. The opinion goes on to say, however, that it would be pure speculation to determine that the veteran was exposed to asbestos during his time in service, and that his diagnosed restrictive lung disease could be related to obesity as well as pleural disease. As service connection cannot be based upon speculative or conjectural medical opinions on etiology, the veteran's claim for entitlement to service connection for restrictive lung disease or pleural disease must be denied. See 38 C.F.R. § 3.102. See also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999). With regard to the veteran's COPD, the addendum to the VA examination report specifically stated that the veteran's COPD is not related to asbestos, but rather more likely related to the veteran's history of smoking. On July 22, 1998, the President signed into law a new provision, codified at 38 U.S.C.A. § 1103, essentially barring service connection on the basis that a disease or injury is attributable to the use of tobacco products during service. 38 C.F.R. § 3.300. This provision applies to claims filed after June 9, 1998. The Board acknowledges that the veteran has submitted medical literature indicating that those who smoke and have been exposed to asbestos have higher occurrences of COPD than those who have not been exposed to asbestos. Robert Linebaugh, The Link Between Asbestos Exposure and Smoking, http://www.justmeso.com. However, there is no evidence on record indicating that the veteran was exposed to asbestos during service. Furthermore, the veteran filed his claim for service connection for a lung disease due to inservice exposure to asbestos in January 2005, several years after the June 9, 1998, deadline. After consideration of all the evidence, the Board finds that the veteran's current lung diseases and COPD are not related to an incident of service, including claimed exposure to asbestos. The veteran's DD 214 form reflects that he worked as a clerk typist. The veteran contends that this occupation required him to work in laundry rooms and live in barracks with steam pipes wrapped in asbestos. See Hearing Transcript, April 2007. This is not among the occupations listed as having a higher incidence of asbestos exposure in the M21-1 MR. In addition, the veteran has stated his post- service occupations have included working in a battery factory and an aluminum alloy center; carpentry work; wood mill work; and a working as custodian for a dye cast company. See VA examination report, June 2005. The Board notes that carpentry and mill work are specifically listed among the occupations that have higher incidents of asbestos exposure. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board acknowledges that the veteran's service medical records indicate that asthma was noted on his June 1971 induction examination. It is noted that the matter of service connection for asthma was the subject of a prior final RO decision and is not presently before the Board; rather, the veteran claims service connection for other respiratory disabilities. On separation examination, it was noted he had an upper respiratory infection and a history of asthma. See separation examination report, October 1975. With regard to the upper respiratory infection, the physician at the June 2005 VA examination noted that the claims file was reviewed. There is no indication in the VA examination report or in any of the veteran's treatment records that the veteran's inservice infection or his asthma had any effect on his current lung diseases. Although the Board is sympathetic to the veteran's health difficulties, the fact remains that no competent medical evidence of record exists linking his current COPD, restrictive lung disease, pleural disease, or any other lung disease to his active duty service. In regards to the veteran's testimony that he has a lung disease as a result of exposure to asbestos in service, the Board observes that he is a layperson, and not competent to provide competent evidence on a matter such as the diagnosis or etiology of a claimed medical condition. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Likewise, while it is argued that medical literature provided by the veteran is supportive of the claim for service connection, the Board finds that such generic texts, which do not address the facts in this particular veteran's own case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a lung disease as a result of exposure to asbestos must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lung disease, claimed as due to asbestos exposure, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs