Citation Nr: 0732518 Decision Date: 10/16/07 Archive Date: 10/26/07 DOCKET NO. 02-04 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from November 1945 to February 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for asbestosis. The Board remanded the instant claim in October 2003 for VCAA compliance and further development. In October 2006, the case was remanded for a Travel Board hearing. In February 2007, the veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and is associated with the claims folder. In June 2007, the Board received a request from the veteran for an extension of time in connection with his claim on appeal. That same month, under the provisions of 38 C.F.R. § 20.1304(b), the motion for an extension of time was granted. He was instructed by letter that the Board would suspend review of his appeal until September 27, 2007. If no response was received by that time, the Board would proceed with adjudication of his claim. The Board received no additional evidence and has thus, proceeded with adjudication of the claim. FINDING OF FACT There is no competent medical evidence of record that links the veteran's asbestosis to his active service. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.303, M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the appellant of any evidence that is necessary to substantiate his claim. This includes notifying the appellant of the evidence VA will attempt to obtain and that which the appellant is responsible for submitting. Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice errors (either in timing or content) are presumed prejudicial, but VA can proceed with adjudication if it can show that the error did not affect the essential fairness of the adjudication by showing: 1) that any defect was cured by actual knowledge on the part of the claimant; 2) that a reasonable person could be expected to understand from the notice what was needed; or 3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). In Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter addressing the service connection claim and meeting the specific requirements of C.F.R. § 3.159(b)(1) in March 2001. This letter was issued prior to the initial appealed rating decision, and sufficiently meets the notification requirement of the VCAA The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits to be assigned if service connection is awarded. The Board notes that the veteran did not initially receive notice as to the information necessary to assign an effective date in the event that the claim of service connection is granted. The veteran eventually received the notice consistent with Dingess in May 2006 and January 2007. Following the notice, the veteran was given an opportunity to submit additional evidence. A Report of Contact dated May 2007, indicated, in pertinent part, that the veteran requested an additional 90 days to submit additional evidence to support his claim. In June 2007, the undersigned VLJ granted the motion and suspended adjudication of the veteran's claim for 90 days in an effort to allow him the opportunity to submit additional evidence. No additional evidence was presented, and the Board has proceeded to adjudicate the claim. In this regard, the Board concludes that since the preponderance of the evidence is not in favor of his claim on appeal, any question as to the appropriate disability rating and effective date to be assigned is moot. Therefore, this notice did not affect the essential fairness of the adjudication. The Board notes at this point that the RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claim. The record includes the initial claim, a private medical statement, information on a private lawsuit, VA inpatient and outpatient treatment records, and a VA medical opinion dated May 2006. There are no known additional records to obtain. A hearing was offered, and the veteran testified before the undersigned VLJ in February 2007. The veteran did not respond with additional evidence after he was granted 90 additional days to present evidence. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide this claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with his claim. II. Service Connection-Asbestosis The veteran and his representative contend, in essence, that service connection is warranted for asbestosis based upon exposure to asbestos in service. He maintains that although he may have had post service exposure to asbestos, he was initially exposed to asbestos in service when he worked on the railway and lived in barracks in Alaska where the pipes were wrapped with asbestos to keep from freezing. He maintains that his exposure to asbestos post-service was limited. Under applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary 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 the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR. The U.S. Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, topic 29. It lists some of the major occupations involving exposure to asbestos, including 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 and pipe products, and military equipment. 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). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9; see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. In short, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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. M21-1MR, Part IV, Supbart ii, Chapter 1, Section H Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. At the outset, it is important to note that the veteran's military medical and personnel records are unavailable and are presumed subject to a fire in the 1970's at the National Personnel Records Center (NPRC). Additionally, VA medical records at the Syracuse VA Medical Center (VAMC) for 1960 are also unavailable for review. All efforts to obtain this information have been exhausted and further attempts to locate the records at the NPRC and Syracuse VAMC have been futile. The veteran was given notice of these futile attempts and provided additional time to submit copies of these records if they were available to him. This was not done and the Board is proceeding with evaluation of this claim. In October 2000, Brian Salisbury, MD, submitted a medical statement to the veteran's attorneys in connection with a class action suit involving the veteran as a claimant in an asbestos claim. Dr Salisbury stated that the veteran had worked on the railroad for 42 years and been exposed to asbestos in the installation of pipes, insulation of cabs, and asbestos in the engine room. He also worked as an engineer on the railroad in Alaska and was exposed to asbestos in the insulation of pipes and also asbestos used in old stoves used to heat barracks. Dr. Salisbury related the veteran had a 100 pack year history of cigarette smoking. Chest x-rays showed evidence of bilateral pleural plaques of the thoracic pleura with a hint of calcification. There was also evidence of bilateral pleural thickening and increased interstitial markings in both lower lobes compatible with possible interstitial lung disease. The pertinent clinical impression was asbestosis manifested by bilateral pleural thickening and interstitial pulmonary disease. The veteran was counseled as to his high cancer risk given his history of cigarette exposure and asbestos exposure. In December 2000, the veteran submitted a statement indicating that he worked on the railroad after service. He stated that he was exposed to asbestos on an almost constant basis for the two years he was in service. After service, he indicated that he was hired by the railroad in March 1948 and retired in 1989. He claimed that for the first 15 years, he was laid off for most of that time period. In June 2001, a copy of a covenant not to sue between the veteran and Mundet Cork Company was submitted on behalf of the veteran's claim. The veteran indicated that during his career, upon information and belief, he was exposed to asbestos-containing products installed from 1940 through February 8, 1964, that were alleged to Mundet products or to have been installed by Mundet employees. He also indicated that the exposure occurred on the jobsites of the NY Central Railroad and the United States Army. He also stated that he had been diagnosed with asbestosis. In April 2006, VA provided a medical opinion regarding the veteran's condition. The claims file was reviewed. The examiner stated that the veteran did have asbestosis as manifested by his abnormal chest x-ray and abnormal pulmonary function studies. The examiner stated that the veteran was exposed to asbestos for a short period of time in service when he was a railway brake man and locomotive engineer, but also exposed to asbestos for a significant time after service from 1948 to 1989. The examiner stated that it was very unlikely that the veteran's short time of exposure to asbestos in service substantially contributed to the development of asbestosis since the vast majority of his asbestos exposure was after service. Therefore, he related that it was unlikely that the veteran's asbestosis was related to his time in service. The veteran testified at a Travel Board hearing before the undersigned VLJ in February 2007. The veteran testified that the time period between 1948 to 1960, when he was employed by the railroad and steam engines were still in use, he was laid off most of this twelve year period. He related that he had no seniority. He related that most of his asbestos exposure occurred while in service as a service engineer on the railroad in Alaska and from the pipes and insulation covering the pipes in his barracks. He testified that he was a member of a class action suit with the railroad after his retirement. The evidence of record shows that the veteran has been diagnosed with asbestosis. However, of most import is, the VA medical opinion which specifically links the veteran's asbestosis to his period of exposure to asbestos after service. The Board notes that the opinion was based, in part, on the physicians finding that the majority of the veteran's exposure to asbestos took place after service. The Board notes that the veteran, in connection with his claim, states that he had limited exposure after service. The Board finds the veteran's assertion of limited exposure not to be credible. In a covenant not to sue, the veteran reported that he was exposed to asbestos containing products from 1940 to 1964. There was no mention of having a limited amount of exposure after service. In an October 2000 medical statement to the veteran's attorneys, it was reported that the veteran was referred for evaluation for possible asbestosis. The doctor stated that the veteran's occupational history was quite pertinent. He related that the veteran worked for 42 years on the railroad in which he was exposed to asbestos in the insulation of pipes, insulation of cabs and in the engine room. The doctor also noted that the veteran worked as an engineer on the railroad in Alaska in which he was exposed to asbestos in insulation of pipes and also asbestos used in the old stoves used to heat the barracks. This report indicates that the veteran had significant postservice exposure to asbestos and some exposure while in service. The reported history in the October 2000 medical report to the veteran's attorneys is inconsistent with the veteran's claim that he had limited exposure to asbestos after service. Given the foregoing, the Board finds that the veteran had significant exposure to asbestos after service and that he had some exposure during his less than 2 years of service from November 1945 to February 1947. Given this finding, the Board concludes that the April 2006 opinion is probative. It was based on a finding of significant postservice exposure after service and a short period of exposure in service. The examiner reviewed the claims file, including the veteran's statements concerning the circumstances surrounding his exposure to asbestos. He also had an opportunity to review all of the medical evidence concerning the veteran's diagnosis of asbestosis. The examiner also provided a rationale for his finding that the veteran's asbestosis was unlikely related to the veteran's asbestos exposure in service. The only evidence that links the veteran's asbestosis to service is the veteran's claims of such. It is well established that laypersons cannot provide competent evidence when a medical opinion is required, as is the case with establishing the etiology or diagnosis of a medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of competent medical evidence linking the veteran's asbestosis to service, the Board must find that the preponderance of the evidence is against the claim; the benefit-of-the doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for asbestosis is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs