Citation Nr: 0735215 Decision Date: 11/08/07 Archive Date: 11/26/07 DOCKET NO. 05-27 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for asbestosis (bilateral pleural plaques) as a result of asbestos exposure. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from August 1951 to August 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating determination of the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's current asbestosis is not of service origin. CONCLUSION OF LAW Asbestos-related lung disease, to include asbestosis, was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). A November 2003 VCAA letter informed the veteran of the information and evidence necessary to substantiate the claim, what types of evidence VA would undertake to obtain, and what evidence the appellant was responsible for obtaining. The letter did not explicitly tell him to submit all relevant evidence in his possession. An error by VA in providing notice of the information and evidence necessary to substantiate a claim under 38 U.S.C. § 5103(a) is presumptively prejudicial and in such a case the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The letter did tell him to submit medical evidence in his possession, and to tell VA about relevant evidence and that it was his responsibility to ensure that VA received the evidence. He was thereby put on notice to submit relevant evidence in his possession and he was not prejudiced by the failure of the RO to provide explicit notice to submit relevant evidence in his possession. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Such was the case here. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date. As the Board concludes below that the preponderance of the evidence is against the service connection claim, any question as to the appropriate disability rating or effective date to be assigned would be rendered moot. The Board finds that there has been compliance with the assistance requirements of the VCAA. All available service medical, VA, and private treatment records have been obtained. The veteran was also afforded a VA examination. As such, no further action is necessary to assist the claimant with the claim. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). 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 were subsequently 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 4-00. VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The provisions of M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. now outline how to address claims concerning service connection for disabilities resulting from exposure to environmental hazards. It defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard fire-proofing materials, and thermal insulation. It further notes that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis tumors, pleural effusions, and fibrosis pleural plaques, mesotheliomas of pleura, and peritoneum cancers of the lung bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. Notes: The biological actions of the various fibers differ in some respects, in that chrysotile products have their initial effects on the small airways of the lung cause asbestosis more slowly, and result in lung cancer more often, and crocidolite and amosite have more initial effects on the small blood vessels of the lung, alveolar walls, and pleura, and result more often in mesothelioma. M21-1 further states that specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi and eventually develops in about 50 percent of persons with asbestosis, gastrointestinal cancer that develops in 10 percent of persons with asbestosis, urogenital cancer that develops in 10 percent of persons with asbestosis, and mesothelioma that develops in 17 percent of persons with asbestosis. Disease-causing exposure to asbestos may be brief, and/or indirect. Notes: Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. Mesotheliomas are not associated with cigarette smoking. M21-1 also notes that the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. 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. M21-1 further indicates that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. During World War II (WWII), several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. Many of these people have only recently come to medical attention because of the potentially long latent period between first exposure and development of disease. It further notes that when deciding a claim for service connection for a disability resulting from exposure to asbestos determine whether or not service records demonstrate the veteran was exposed to asbestos during service, ensure that development is accomplished to determine whether or not the veteran was exposed to asbestos either before or after service, and determine whether or not a relationship exists between exposure to asbestos and the claimed disease, keeping in mind latency and exposure factors. Notes: As always, resolve reasonable doubt in the claimant's favor. The Court has held that "neither Manual M21-1 nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure to asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4- 2000. The veteran reports that while serving in the Navy he was exposed to asbestos while on board the USS Roanoke, including when the ship was in dry dock for repairs for a period of six months in Portsmouth, Virginia. There is no presumption that a veteran was exposed to asbestos in service. The Board will concede the veteran may have been exposed to asbestos in service. However, mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question in a claim such as this is whether disabling harm ensued. The medical evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between this current disability and the exposure to asbestos in service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran was stationed on the USS Roanoke from June 1952 to July 1954. The veteran's service medical records do not reveal any complaints or findings of chest problems in service. At the time of the veteran's August 1954 service separation examination, normal findings were reported for the lungs and chest and chest X-rays were noted to be normal. In February 2000, the veteran's private physician, H. Mullin, M.D., reported that chest X-rays demonstrated pleural plaques consistent with previous asbestos exposure. In his December 2004 notice of disagreement, the veteran noted that 50 years ago asbestos exposure was not looked for on X-rays. He indicated that for 2 to 3 years he slept in an environment where there was asbestos, including in boot camp. He stated that when the ship went to dry dock for repairs in Portsmouth, Virginia, the crew was confined to the ship. While repairs were made asbestos was released, and he was left to breathe the contaminated air. He further reported that when general quarters were called, he went to a 6 inch gun magazine which was four to five decks below and had very poor ventilation. At a June 2005 VA examination, the veteran was noted to have been diagnosed with asbestosis by his private physician. The veteran was claiming asbestosis secondary to exposure to asbestos while being a clerk on a Navy ship from 1951 to 1954. The veteran indicated that he was a clerk on the ship for his entire military time. At one point, they were in dry dock for six months while renovations were being done to the ship. He stated that he was exposed to asbestos at that time. The examiner noted that the veteran had worked as a plumber for 30 years and also could have been exposed to asbestos as a result of that employment. The veteran reported that he was not experiencing any symptoms at the time of the examination. There was no shortness of breath, no productive cough, and no hemoptysis. He had never been a smoker and there was no treatment at this time being undertaken for this condition. The veteran did have pleural plaques that were found on chest x-rays that were consistent with asbestosis. He was diagnosed with this condition in 2000. Pulmonary function testing performed at that time revealed severely reduced forced vital capacity. It was the examiner's assessment that the veteran had asbestosis. She noted that the veteran had had exposure for 30 years as a plumber which was a risk factor to asbestosis. She indicated that he was a clerk on a ship, which she stated put him at minimal risk to exposure. The examiner noted that he reported having been in dry dock for six months and having been exposed t o asbestos at that time; however, she indicated that she did not have any clear evidence that he had asbestos exposure while on the ship. She noted that the veteran did not work in an engine room where he would have had daily contact. The examiner stated that the veteran's risks as a plumber were greater than his exposure while in the military. It was the examiner's opinion that it was not at least as likely as not that the asbestosis that the veteran had was secondary to the military. She stated that his risks were just as likely, if not more, that he would have obtained the asbestosis from his employment as a plumber. In his August 2005 substantive appeal, the veteran again expressed the belief that his asbestosis resulted from his being aboard the USS Roanoke for 2 to 3 years with exposure including the time the ship was in dry dock when in Portsmouth, Virginia. He also argued that the lung disease could be related to second hand smoke while serving on the ship. Analysis The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to report that he incurred certain injuries during service or that he experienced certain symptoms such as pain or swelling. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a layman, however, he is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical expertise. See Barr, Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, the veteran did serve aboard a ship where he would have had the opportunity for asbestos exposure. The private and VA records clearly document current asbestos related disease. There is, however, no competent medical evidence associating in-service asbestos exposure with the currently shown asbestos-related lung disorder. The June 2005 VA examiner provided the only competent opinion and that opinion was against such a link. While this opinion was not a model of clarity, it ultimately concluded that it was less likely than not that the current disease was related to the in-service exposure. The veteran has questioned the adequacy of the examination, but it did consider an accurate history as related by him, and contained all findings. He has questioned the fact that an X-ray was not conducted, but he has not presented argument as to why an X-ray would be required. The record before the examiner included X-rays. She obtained pulmonary function tests and ultimately concluded that the veteran did have current asbestosis. The issue was not whether the veteran had a current disability, but whether the asbestosis was related to the three years the veteran was in service or the 30 years he worked as a plumber. The examiner considered the veteran's history of potential exposure both during and after service. As a lay person, the veteran's opinion that asbestosis was caused by in-service exposure rather than that after service, is not competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layman is not competent to offer a diagnosis or medical opinion). Similarly, the veteran would not be competent to provide an opinion that his current lung disease is related to second hand smoke during service. His private physician has attributed the disease to asbestos exposure, and there is no competent opinion linking the disease to second hand smoke during service. Most importantly, the law prohibits the payment of compensation for disability resulting from the use of tobacco products during service. 38 U.S.C.A. § 1103 (West 2002). Furthermore, the medical evidence shows that the veteran has asbestos-related lung disease, but that it developed as a result of post-service exposure. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for asbestosis (bilateral pleural plaques) as a result of asbestos exposure is denied. ____________________________________________ Mark D. Hindin 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