Citation Nr: 0734663 Decision Date: 11/02/07 Archive Date: 11/19/07 DOCKET NO. 06-30 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for asbestos-related lung disease due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran had active service from March 1966 to February 1968 and reserve service from February 1968 and March 1972. He also had National Guard Service from 1974 to 1989. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating determination of the above Department of Veterans Affairs (VA) Regional Office (RO). It appears from an August 2007 statement, and hearing testimony, that the veteran is seeking service connection for cancers secondary to chemical exposure. Inasmuch as this issue has not been properly developed and is not currently before the Board, they are referred to the RO for action deemed appropriate. FINDING OF FACT No asbestos-related lung disease was shown in service, and there is no competent and credible medical evidence relating the veteran's lung disease to service or any event of service. CONCLUSION OF LAW Asbestos-related lung disease was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). 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) (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 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 that 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 discusses the development of asbestos claims. VAOPGCPREC 4-2000. VA must analyze the veteran's claim 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). When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is preservice or post service occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers 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. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period 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). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) 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. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Factual Background and Analysis The veteran claims that he developed a lung disease as a result of asbestos exposure during service. However, after careful review, the Board finds that there is no persuasive evidence of record that the veteran was exposed to asbestos during active duty service. Service personnel records (as well as the veteran's military occupational specialties of biomedical equipment repairman and infantryman) do not demonstrate that the veteran had a MOS typically involving exposure to asbestos. M21-1, Part VI, 7.21(b)(1); see VAOPGCPREC 4-2000. These records also show that in 1966 the veteran participated in a chemical entry course for 8 weeks, however there is no official service department documentation referencing exposure to asbestos and or chemicals in service. Moreover, the veteran's service medical records (SMRs) are entirely negative for complaints, findings, or any other indicia of a lung disease. At his separation physical in September 1967, clinical evaluation of all major body systems, to include the lungs and chest, was within normal limits. A chest X-ray showed no significant abnormality. The veteran specifically denied asthma, shortness of breath, pain or pressure in the chest, and a chronic cough. A July 1975 reenlistment examination for the army reserves shows the veteran indicated sensitivity to chemicals and dust, but that he had not been treated. The veteran noted that he had stopped working for the company and the situation cleared itself. During a July 1981 quadrennial examination it was noted that the veteran was employed as a brakeman and conductor for the Missouri Pacific Railroad. It was also noted that he had been hospitalized for several weeks in 1979 for history of knife wound to the chest and laceration of the left diaphragm. An X-ray report showed interval changes with densities in the left lower chest medially and anteriorly consistent with herniation. The post service evidentiary record includes a July 1998 toxicology report which shows the veteran indicated past exposure to asbestos and an occupational history as a laborer from 1975 to 1989. He reported asbestos exposure during work with insulation, mastics/cement products, pipefitting/welding, the railroad, and laborer. On examination there was evidence of parenchymal changes consistent with asbestos-related pneumoconiosis and small irregular opacities in the lower lungs zones. The examiner noted that asbestosis generally effects the lowest lung zones first and extends upward over time. There was no definite radiographic evidence of asbestos-related pleural changes. Subsequent records include various computed tomography (CT) scans and X-ray reports which show persistent elevated left hemidiaphragm, hyperaeration of both lower lungs, parenchymal scarring and post inflammatory changes. The remaining pertinent records show that the veteran's lung symptomatology is secondary to his post-service occupational exposure. In January 2005, a private examiner noted the veteran's reported history of asbestos exposure while doing pipe work on the Union Pacific Railroads. The veteran also gave a history of shortness of breath and a chronic cough for about 15 years. He denied tuberculosis, asthma or other serious chest infection. He also denied exposure to farm animals, birds or rabbits. He denied unusual hobbies, but did indicate some exposure to chemical fumes. Pulmonary function testing showed a mild restrictive defect and a chest X-ray showed parenchymal changes consistent with asbestos- related pneumoconiosis. The examiner concluded that beyond a reasonable medical doubt the veteran had evidence of asbestos-related lung disease based on his industrial history, abnormal chest X-ray and PFT findings. No mention was made of any asbestos exposure in service, and more importantly, no reference to service or any event of service was made. The medical opinion merely referenced the veteran's post-service employment. Thus, this medical evidence weighs against the claim. The veteran has presented testimony at a personal hearing before the undersigned Veterans Law Judge in August 2007. His essential argument is that in 1966 he attended a course on chemical biological warfare and was exposed to all kinds of chemicals. He also testified that that asbestos was used extensively throughout the barracks and classrooms in piping and insulation. As a result he was exposed it. He also testified that he was exposed to asbestos from a flame thrower and other weapons that he had to maintain and keep clean. In particular he noted the flame thrower was lined with asbestos. He also testified that he was employed as railroad conductor from 1975 to 1989 and was exposed to diesel fuel fumes, and on occasion asbestos, but that the initial, and primary, exposure was during service. Although the veteran is competent to testify as to his in- service experiences and symptoms, where the determinative issue involves a question of medicine or science, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1991) (holding that a lay witness can provide an "eye-witness" account of visible symptoms, but cannot offer evidence that requires medical knowledge, such as causation or etiology of a disease or injury.). The competent medical evidence of record attributes the veteran's current lung disorder to environs encountered during his post-service employment. Not one of the reports attributes his disorder to service or any event of service. As previously noted, the 1998 medical report notes the veteran's exposure period from 1979 through 1989 and the 2005 medical opinion notes exposure while employed with Union Pacific Railroad. Accordingly, despite the veteran's assertions, the record does not show that he was exposed to asbestos in service, especially considering his post-service industrial employment that he, himself, claimed was the source of the asbestos exposure. Without persuasive evidence of asbestos exposure during active duty service and persuasive evidence etiologically relating any current disorder to active service, there is no basis for awarding service connection. At this time, the Board acknowledges that the veteran was not examined for the purpose of addressing his service connection claim; however, given the facts of this case a VA examination is not required. Specifically, under the statute, an examination or opinion is necessary to make a decision on the claim when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. See 38 U.S.C.A. § 5103A(d). In this case, the highly probative medical evidence of record shows that the veteran reported significant post-service industrial exposure, which his private physician has determined was the likely cause of his pneumoconiosis. Because the evidence of record is sufficient to make a decision on the claim, VA is not required to provide the veteran with a medical examination absent a showing by the veteran of a current disability and an indication of a causal connection between the claimed disability and service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). For the reasons stated above, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice 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, and (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, in accordance with 38 C.F.R. § 3.159(b)(1). The U.S. Court of Appeals for Veterans Claims (Court) 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, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). In letters dated in December 2005, and March 2006, the RO informed the veteran of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. The letters informed him that VA would obtain all relevant evidence 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 any other medical records supporting his claim, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide "any evidence in your possession that pertains to your claim." The record also shows that the RO complied with M21-1MR procedures. The RO sent the veteran a letter requesting dates and places that he was exposed to asbestos in service, the method of exposure, the names of other service persons with him at the time of exposure, his organization and rank at the time of each exposure, his complete employment history pre-and post-service, and medical evidence that shows the diagnosis of the disease caused by asbestos. The Board finds that the contents of the above letters 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 provided opportunities to submit additional evidence. 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 claim. 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 claim, and to respond to VA notices. In addition to the foregoing analysis, to whatever extent the recent decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), 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 is being denied, any such questions are moot. The veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial to the veteran. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duties to notify and assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to service connection for asbestos-related lung disease due to in-service asbestos exposure is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs