Citation Nr: 0734405 Decision Date: 11/01/07 Archive Date: 11/19/07 DOCKET NO. 05-20 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2006, the veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In March 2007, this matter was remanded to the RO via the Appeals Management Center in Washington D.C. to afford the veteran a medical examination and obtain a medical opinion. Those actions completed, the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998) FINDING OF FACT The veteran does not have asbestosis or an asbestos related disease. CONCLUSION OF LAW The criteria for service connection for asbestosis, or for an asbestos related disease, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for a disease initially 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). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. 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 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 Court of has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities according to the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). M21-section 1MR, Part IV, Subpart ii, Chapter 1, Section H, topic 29, 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 or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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 (M21-1MR), Part IV, Subpart ii, Chapter 1, Section H Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). A review of the record shows that the RO complied with these procedures. The RO sent the veteran a letter in October 2003 requesting these details. In a January 2005 response, the veteran contended that he was exposed to asbestos while welding fiberglass fuel tanks during service. In response to a question as to the work he has done since service, the veteran indicated that he has gone to school. Service personnel records show that the veteran's military occupation was that of a truck vehicle mechanic and a general vehicle repairman. During the November 2006 Board hearing, the veteran testified to the effect that he was diagnosed with an asbestos exposure-related disease during an asbestos screening (records of which he stated he had submitted to VA). Hearing transcript at 11. An April 2007 VA examination report contains the veteran's report that he was diagnosed with asbestosis in 2001 or 2002 per a class action law suit. This examination report also contains the veteran's history of working at a corporation for one year in 1977 followed by work as a bus driver until he retired in 1991. The only evidence suggesting that the veteran has an asbestos related disease is a November 2001 report of a July 1991 chest x-ray. In this report, R.H., M.D. stated "[t]here are primary p, secondary s sized opacities involving six lung zones, profusion 1/0. There is thickening of the interlobar fissure. IMPRESSION: 1. Bilateral interstitial fibrosis consistent with asbestosis, silicosis and coal workers pneumoconiosis." In April 2007, the veteran underwent a VA examination to determine whether he suffers from an asbestos related respiratory illness. Lung examination was clear to auscultation and percussion without rales, rhonchi, or wheezes. There was no increase in the veteran's anterior- posterior diameter and no prolongation of his expiratory phase. Chest x-ray dated in October 2006 revealed no acute infiltrates, there were diffuse interstitial thickenings bilaterally, and no pleural effusion noted. The examiner also indicated that he had reviewed the veteran's claims file, including Dr. R.H.'s chest x-ray report. However, the examiner stated that 1995 VA x-rays did not reveal any changes consistent with asbestosis. This examiner also stated that a computerized tomography (CT) chest scan was obtained as part of the April 2007 examination. He explained that this diagnostic test is more specific and sensitive for the diagnosis of asbestosis than a plain chest x-ray. The examiner further explained that this CT did not show any pulmonary interstitial disease or fibrosis and there were no pleural plaques or calcification that would be indicative of asbestos exposure or asbestos related lung disease. In analyzing the results of pulmonary function tests results, the examiner stated that the results were obstructive, consistent with the veteran's chronic obstructive pulmonary disease, which the examiner attributed to smoking. He further explained that asbestosis is a restrictive lung disease and not an obstructive lung disease. He added that the few tiny densities scattered within the veteran's lungs, as seen on the CT chest scan, are as likely as not granuloma. The examiner concluded that the more sensitive and specific testing revealed no objective findings of asbestosis or asbestos related lung disease, providing highly probative evidence against this claim. Because the preponderance of evidence shows that the veteran does not have disease related to exposure to asbestos, the Board need not decide whether he was exposed to asbestos during service or post service. With regard to the veteran's own opinion, the veteran is not competent to diagnose his own respiratory disorder; a matter requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). To the extent that the veteran has reported a contemporaneous medical opinion, the Board has considered his testimony. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He has submitted the evidence that forms the foundation for his report, and thus his report is subsumed by the discussion that follows. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . As stated by the Court, credibility is within the province of the Board. So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board affords little probative weight to Dr. H.'s November 2001 statement. Dr. H. states a diagnosis, interstitial fibrosis, but supplies an unclear etiology, stating that the diagnosis is consistent with three different diseases. Furthermore, Dr. H. does not indicate that he examined the veteran or that the veteran underwent any diagnostic tests other than this single chest x-ray. Finally, Dr. H. provides no rationale for relating the x-ray findings to asbestosis or an asbestos related disease, stating only that the findings are consistent with asbestosis. In contrast, the Board finds the April 2007 VA examination results and opinion to be of considerable probative value. The diagnosis was rendered after examination of the veteran, review of the veteran's medical history, and firmly founded on not only x-ray results but on more sensitive and specific diagnostic tests, the CT and pulmonary function tests. This examiner also supplied an extensive and well reasoned explanation as to how he arrived at his opinion, explaining the nature of the veteran's respiratory disease and why that disease was not indicative of exposure to asbestos but rather of chronic obstructive pulmonary disease caused by tobacco use. Furthermore, extensive VA medical treatment records from 1999 to 2006 fail to indicate any asbestos related disease but contain numerous references to medical difficulties related to tobacco use. The April 2007 VA examination results and the post-service medical record, as a whole, provides extensive negative evidence against this claim, clearly outweighing statements provided by Dr. H. as well as the veteran's contentions. Based on the above, the preponderance of evidence of record demonstrates that the veteran does not have a disease resulting from exposure to asbestos. In the absence of proof of the claimed disability there can be no valid claim for service connection. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran's claim for service connection must be denied because the first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, has not been met. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. 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. 38 U.S.C.A. § 5103(a) (West 2002); 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), 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. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. However, in cases where compliant notice did not precede the initial adjudication, post-initial adjudication compliant notice followed by readjudication of the claim cures the procedural defect. See Mayfield v. Nicholson, 20 Vet. App. 537 (Fed. Cir. 2007). A supplemental statement of the case is such an adjudication. Id. VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 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 (2007). VA satisfied the duty to notify by means of letters dated in October 2003, and June 2006. The October 2003 letter was provided to the veteran prior to the initial adjudication by the RO. This letter informed the veteran of the requirements of a successful service connection claim for an asbestos related disease, and of his and VA's respective duties in obtaining evidence. He was asked to submit information and/or evidence, which would include that in his possession, to the RO. The May 2007 letter provided with notice as to the assignment of disability ratings and effective dates. Although this notice did not precede the initial adjudication, the RO subsequently issued a supplemental statement of the case, in June 2007, curing, or eliminating, that timing defect. See Mayfield v. Nicholson, No. 2007- 7130. (Fed. Cir. Sept. 17, 2007). The Board has also satisfied its duties to assist the veteran in this case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service medical and personnel records are associated with the claims file, as are lay statements and records and reports from VA and non-VA health treatment providers and lay statements. All records that the veteran sought VA assistance in obtaining, have been obtained. In April 2007, the veteran was afforded an appropriate VA medical examination. Based on the above, the Board finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Dingess v. Nicholson, 19 Vet. App. 473 (2006), Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs