Citation Nr: 0732682 Decision Date: 10/17/07 Archive Date: 10/26/07 DOCKET NO. 04-00 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a lung disability, including as a result of exposure in service to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from December 1951 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim. In April 2006, the Board remanded this claim for additional development. Such development having been accomplished, this claim has been returned to the Board for adjudication. FINDING OF FACT The veteran does not have a respiratory or lung condition which is related to military service, to include as due to asbestos exposure in service. CONCLUSION OF LAW The veteran's respiratory condition was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folders. 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). 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. 2007); 38 C.F.R. § 3.159(b) (2007); 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. Prior to the initial adjudication of the veteran's claim, a letter dated in October 2001 fully satisfied the duty to notify provisions as to the first three elements. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The VCAA notice provided to the veteran prior to adjudication failed to provide specific notice of the fourth element, viz., that the claimant should provide any evidence relevant to the claim in his possession to VA. See Pelegrini II, supra. Failure to provide pre-adjudicative notice of any of the four elements is presumed to create prejudicial error. See Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id. Lack of prejudicial harm may be shown in three ways: (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. Id.; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The October 2001 letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. The Board concludes that a reasonable person could be expected to understand that any relevant evidence should be submitted during the development of the claim. See Pelegrini II, at 120-21. Accordingly, the Board concludes that the failure to provide VCAA compliant notice was harmless. The Board may proceed with consideration of the claim on the merits. See Sanders, supra; see also Simmons v. Nicholson, 487 F. 3d 892 (2007). The Board notes that in a letter dated in April 2006, the veteran was provided with notice of how disability ratings and effective dates are assigned, compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran was also provided with a subsequent adjudication in June 2007. The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The veteran was afforded a VA medical examination in October 2006 to obtain an opinion as to whether his current lung disabilities could be directly attributed to service and/or asbestos exposure. Further examination or opinion is not needed on the lung disability claim because, at a minimum, there is no persuasive and competent evidence that the claimed condition may be associated with the veteran's military service. This is discussed in more detail below. 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). The Merits of the Claim The veteran alleges that his currently diagnosed lung disabilities are the result of exposure to asbestos during his time in the United States Navy. The veteran has specifically alleged that as part of his duties as a seaman, he was required to scrape asbestos off of pipes aboard the U.S.S. STEMBEL, which in turn has caused his current lung problems. For the reasons that follow, the Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007). 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. See 38 C.F.R. § 3.303(b) (2007). 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. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, 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). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, 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 a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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, military equipment, etc. 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). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. See VAOGCPPREC 04-00. "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty v. Brown, 4 Vet. App. 428, 429 (1993). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21- 1, Part VI, 7.21(c). In this case the record contains conflicting medical evidence. The veteran's service records show that he served in the Navy. The service medical records are negative for findings of a lung disorder. The veteran's 2006 VA and private treatment records show the extent of his lung disabilities. The veteran has been diagnosed with chronic obstructive pulmonary disease (COPD) and pneumonia. Thus, the Board concedes that the veteran suffers from a current lung disability. See Hickson, supra. In support of his claim, the veteran has submitted private treatment records and VA treatment records. Most notably, the veteran submitted a statement of Victoria G. Harris, M.D., dated in January 2006. It was noted that the veteran was concerned about his lungs and felt that his problem started in the military when he served in the Navy on a destroyer. The veteran reported that he had to recommission his ship and stated that he was exposed to visible asbestos all the time. Dr. Harris concluded that the veteran "likely as not" has current, severe COPD related to service exposure to asbestos. See VA treatment note addendum, January 31, 2006. The Board does not find this medical nexus statement persuasive, however, as it is clear that Dr. Harris was merely repeating history provided to her by the veteran. In Black v. Brown, 5 Vet. App. 177, 180 (1993), the Court stated that the Board may discount medical opinions that amount to general conclusions based on history furnished by the veteran and that are unsupported by the clinical evidence. At no time did Dr. Harris state that she had reviewed the veteran's claims folder in conjunction with her examination. In fact, Dr. Harris stated that the veteran had been in service from 1950 to 1959. The veteran's Department of Defense (DD) Form 214 clearly shows that the veteran was in the United States Navy from December 1951 to February 1955. This medical nexus statement is clearly not credible evidence. Treatment records from Sitaram Subramanian, M.D., dated in 2006, chronicle the veteran's continuing complaints of shortness of breath and chest pain. The veteran was admitted to St. John's Medical Group in February 2006 for further treatment of pneumonia in the right base of his lung, respiratory failure, COPD and "a questionable history of asbestos exposure." See St. John's Medical Group, discharge summary, February 7-15, 2006. Dr. Subramanian's treatment note later in February 2006 discussed the results of the veteran's computed axial tomography (CAT) scan. The CAT scan showed some pneumonic infiltrate in the right lower lobe with mild pleural effusion. The assessment was that the veteran seemed to be getting better even though he had extensive pneumonia in the right lower lobe area with pleural effusion. See private treatment note, Dr. Subramanian, February 20, 2006. In March 2006, the veteran was seen again with less cough and less shortness of breath. A chest examination revealed decreased air entry on both sides and chest x-ray revealed significant improvement in the right lower lobe density and infiltrate. See private treatment note, Dr. Subramanian, March 6, 2006. In May 2006, the veteran was seen with complaints of shortness of breath. Upon chest examination, no wheezes or rales could be heard, though there was decreased air entry on both sides. Chest x-rays were reviewed again and reiterated the opinions expressed in prior treatment records. See private treatment note, Dr. Subramanian, May 16, 2006. In December 2006, the veteran informed Dr. Subramanian that he had been exposed to asbestos during his time in service. He was diagnosed with COPD, chronic respiratory failure, coronary artery disease and diabetes mellitus, Type II. Upon examination, wheezing could be heard on both sides and expiration of breath was prolonged. Dr. Subramanian's assessment was that the veteran continued to have wheezing and symptoms suggestive of bronchospasm and underlying COPD. See private treatment note, Dr. Subramanian, December 12, 2006. Again, the non- specific references made to a questionable history of asbestos exposure constitute a mere recitation of history provided by the veteran. See Black, supra. At no time did Dr. Subramanian provide a positive medical nexus statement relating the veteran's current lung disabilities to his exposure to asbestos in service. Additionally, the veteran has submitted an internet article discussing veterans who were exposed to lethal asbestos during service. This article is not probative evidence as it does not specifically relate to the veteran's particular case and in particular does not contain any analysis regarding the veteran's exposure to asbestos and the possible relationship to his current condition. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (2007) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the Court has held that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The only remaining evidence of record in support of the veteran's claim is his own personal statements claiming that his current lung disabilities are related to service. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss what he saw in service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Board finds the October 2006 VA examination report to be the most persuasive. The examiner reviewed the veteran's claims folders in conjunction with the examination. Upon examination of the respiratory system, both lung fields were clear to auscultation, there was no wheezing, no rales and no rhonchi. At the end of the examination, pulse oximeter oxygen saturation was 94 to 95 percent. After walking approximately 40 yards, results were 92 to 93 percent. The veteran was diagnosed with COPD. See VA examination report, October 2, 2006. The VA examination addendum stated that pulmonary function testing performed in September 2006 revealed severe obstructive lung defect with forced vital capacity (FVC) of 2.53, 59 percent of the predicted value, post bronchodilator FVC was 3.41, 79 percent of predicted value. Forced expiratory volume in one second (FEV-1) was 1.02, 35 percent of predicted value, post bronchodilator FEV-1 was 1.28, 45 percent of the predicted value. FEV-1/FVC ratio was 40 percent, post bronchodilator FEV-1/FVC ratio was 38 percent. Chest x-rays done in September 2006 revealed significant right pleural thickening and some shift of the mediastinum to the right. Computed tomography (CT) scan of the chest, done in September 2006, reported pleural thickening and fibrosis of the right base, especially posteriorly. The veteran's pleural thickening was not inconsistent with asbestosis, however, infection and/or other scarring sources were favored and considered to be underlying COPD. The examiner noted that after a discussion with a radiologist regarding the chest x- ray and CT scan of the chest, that the findings were most likely due to previous pneumonia or some other infectious process rather than asbestosis because asbestosis affects both lungs and does not spare one lung and the veteran's x- ray and CT scan revealed only unilateral pleural thickening. It was the examiner's opinion that there was no definite evidence that the veteran had asbestosis and that the veteran's COPD was most likely due to his long history of tobacco smoking. Id. The Board has considered service connection of the veteran's respiratory and lung conditions on other bases; however, the October 2006 VA examiner's opinion indicates that the veteran's lung disorders are the result of smoking. Service connection for the effects of tobacco use is not available for claims filed after June 9, 1998, which is the case here. See 38 C.F.R. § 3.300 (2007). Regardless of VA's concession that the veteran was exposed to asbestos during service, the veteran's present lung disabilities have not been persuasively attributed to asbestos exposure. The Board finds inquiry into whether the veteran had exposure to asbestos in service, and whether that exposure contributed to his current condition to be moot. As such, the Board finds that the preponderance of the evidence is against the veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); see also Gilbert, supra. ORDER Entitlement to service connection for a lung disability, including as a result of exposure in service to asbestos, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Important Notice: Attached to this decision is a VA Form that provides information concerning your rights to appeal our decision. Due to recent changes in the law, some of the information contained in the attached notice of appellate rights form is no longer accurate concerning the ability to pay attorneys and agents to represent you. Some additional information follows that summarizes the current law. To the extent that the information contained in the attached VA Form conflicts with the summary below, please disregard the information on the VA Form and instead rely upon the following information: Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006). If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. VA is in the process of amending its regulations governing representation of claimants for veterans' benefits in order to implement the provisions of the new law. More information concerning the regulation changes and related matters can be obtained at http://www1.va.gov/OGC (click on "Accreditation and Recognition of Service Organizations"). Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the Chief Counsel for Policy (01C3) Board of Veterans' Appeals 810 Vermont Avenue, NW, Washington, DC 20420 Facsimile: (202) 565-5643 (When final regulations are published to implement the requirements of the new law, fee agreements must be filed with the VA Office of the General Counsel and not the Board.) Department of Veterans Affairs