Citation Nr: 0740406 Decision Date: 12/21/07 Archive Date: 01/02/08 DOCKET NO. 03-23 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for pleural disease, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran had active service in the U.S. Navy from April 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefit sought on appeal. The veteran testified before the undersigned Veterans Law Judge in May 2005. A copy of the transcript from this hearing has been associated with the claims file. In August 2005, the Board remanded the veteran's appeal for further development. As explained in more detail in the analysis below, the RO completed all development directed regarding this claim and it is ripe for appellate review. In December 2007, the Board granted a motion to advance the veteran's claim on the docket. FINDINGS OF FACT 1. All evidence necessary to decide the claim has been obtained; the veteran has been provided notice of the evidence necessary to substantiate his claim and has been notified of what evidence he should provide and what evidence VA would obtain; there is no indication that the veteran has evidence pertinent to his claim that he has not submitted to VA. 2. There is no medical or X-ray evidence of pleural disease during service or for decades thereafter; the preponderance of the evidence is against a finding that the veteran has a current diagnosis of pleural disease that began during service or that is causally related to any incident of active duty, to include asbestos exposure. CONCLUSION OF LAW Pleural disease was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. VA has issued final rules amending its adjudication regulations to implement the provisions of the VCAA. See generally 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This fourth element of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held 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. The Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. There is no issue as to providing an appropriate application form or completeness of the application. During the pendency of the appeal, the veteran has been issued multiple VCAA notification letters, including an October 2005 letter issued subsequent to the Board's remand. These notices fulfilled the provisions of 38 U.S.C.A. § 5103(a). The veteran has been informed about the information and evidence not of record that is necessary to substantiate his claim; the information and evidence that VA will seek to provide; the information and evidence the claimant is expected to provide; and to provide any evidence in his possession that pertains to the claims. The October 2005 VCAA notification letter informed the veteran of the specific evidence needed to support a claim based on asbestos exposure. The AMC also provided the veteran with an asbestos exposure questionnaire, as well as a document informing the veteran regarding secondary sources that would document exposure. With respect to the Dingess requirements, while the notification letters of record fail to provide notice of the type of evidence necessary to establish a disability rating or effective date for the claim for the disability on appeal, such failure is harmless because, as will be explained below in greater detail, the preponderance of the evidence is against the veteran's claim. Thus, any questions as to the appropriate disability rating or effective date to be assigned are moot. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the last VCAA notification letter was issued in October 2005, subsequent to the Board remand, and thus, after the rating decision on appeal. The Board is cognizant of Federal Circuit decisions pertaining to prejudicial error. Specifically, in Sanders v. Nicholson, 487 F.3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Court, the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. (Emphasis added.) See also Simmons v. Nicholson, 487 F.3d 892 (2007). In this case, the timing error with respect to the notice requirements noted above raises a presumption of prejudicial error but such error is rebutted by the record. The AMC cured the timing defect by providing complete VCAA notice together with re-adjudication of the claim, as demonstrated by the July 2007 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Court has held that a supplemental statement of the case that complies with applicable due process and notification requirements constitutes a readjudication decision. See Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006) (Mayfield III); see also Prickett, supra (holding that a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). As the supplemental statement of the case complied with the applicable due process and notification requirements for a decision, it constitutes a readjudication decision. Accordingly, the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield III, 20 Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d 1328, 133-34 (Fed. Cir. 2006) (Mayfield II). Thus, the presumption of prejudice against the veteran because of the timing of the notice is rebutted. See Sanders, supra. The veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, the veteran has been provided a meaningful opportunity to participate effectively in the processing of his claims by VA. While the veteran does not have the burden of demonstrating prejudice, it is pertinent to note that the evidence does not show, nor does the veteran contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. With respect to the duty to assist, the Board also finds that all necessary assistance has been provided to the veteran. Subsequent to the Board remand, in the October 2005 VCAA letter, the veteran identified additional sources of medical evidence. It appears that all available evidence has been obtained. See 38 C.F.R. § 3.159. Further, in the October 2005 VCAA letter, the veteran was requested to complete and return an Authorization and Consent to Release Information form in order that the AMC could obtain additional records from the Maritime Asbestosis Legal Clinic regarding the lawsuit. As the veteran did not return this form, however, the Board finds there is no additional duty to obtain these records. See 38 C.F.R. § 3.159. The evidence in the claims file includes private and VA treatment records, to include a January 2007 VA examination obtained pursuant to the Board remand. There is no medical or X-ray evidence of pleural disease during service or for decades thereafter. There are two competent opinions that address the diagnostic and etiological questions at hand. After review of this medical evidence, the Board finds that it provides findings that are adequate for adjudicating the veteran's claim. There is no duty to provide another examination or medical opinion. 38 C.F.R. §3.159(c)(4). The competent opinion noted above includes one from a VA physician. In the August 2005 remand, the Board directed that examiner to determine if additional tests were necessary, to include chest radiographs and a high resolution computed tomographic examination. The Board notes that the examiner did not obtain additional radiographs or other testing but, as the Board had only directed that these tests be performed if found to be necessary, the Board does not find that the remand order was not complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It is apparent from the review of that opinion, included in a January 2007 examination report, that subjecting the veteran to radiation from such testing was not indicated as there was sufficient clinical and X-ray evidence already of record to answer the threshold diagnostic question at hand. The Board further notes that the August 2005 remand contained directives relevant to determining whether the veteran had a history of asbestos exposure, and specifically requested that the RO make a finding regarding whether the veteran had asbestos exposure in service. In the January 2007 VA examination, the examiner presumed asbestos exposure and the Board concurs. Therefore, the element of the veteran's claim to which these directives were relevant has, in effect, been conceded. In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). A disability may be service connected if the evidence of record reveals that the veteran currently has a disability that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disability to service must be medical unless it relates to a disability that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. In McGinty v Brown, 4 Vet. App. 428 (1993), the Court, noting the absence of specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, observed that some guidelines for compensation claims based on asbestos exposure were published in Department of Veterans Benefits (DVB) Circular 21-88-8, dated May 11, 1998. The DVB Circular was subsequently rescinded but its basic guidelines were published in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, 7.21 (Jan. 31, 1997) and have since been revised again in a rewritten version of M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 (Dec. 13, 2005). The Procedure Manual provides that, when deciding a claim for service connection for a disability resulting from exposure to asbestos, VA must determine whether 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. See M21-1 MR, Part IV, Subpart ii, Ch. 2, Section C, Topic 9, Paragraph h (Dec. 13, 2005). It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, that an asbestos- related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. See M21-1 MR, Part IV, Subpart ii, Ch. 2, Section C, Topic 9, Paragraph d (Dec. 13, 2005). Factual Background In March 2001, the veteran filed a claim for service connection for asbestos. Service medical records are negative for any finding attributable to as asbestos-related lung or pleural disease, or residuals of exposure to asbestos. In an October 2005 statement, the veteran indicated that he had had breathing problems for years and that it had "progressively gotten worse over the years." In his response in an asbestos exposure questionnaire, the veteran indicated that he knew of no asbestos exposure before or after service. The record indicates that the veteran is not a smoker and does not have a history of smoking. The record contains a private medical letter dated in April 2000. The physician writing the letter noted that he reviewed data from records that revealed that the veteran was a crewmember aboard "merchant ships". (The veteran's latter testimony that he served aboard ships during service and was exposed to asbestos is not in dispute.) The doctor reported that there was a separate roentgenographic interpretive report of chest films with findings of bilateral pleural thickening. He found that shortness of breath, difficulty breathing after exertion and a noticeable cough was evident from clinical data. The clinician opined that the "shipboard exposure to loose asbestos fibers during this seaman's seafaring employment is amply indicative of his present malady being caused by the asbestos toxin exposure incident to his sailing occupation." The physician concluded that, to a "responsible" degree of medical certainty, the veteran currently suffered from asbestos- related bilateral pleural disease. X-rays taken in August 2000 revealed no radiographic evidence of pulmonary pathology. In a November 2000 VA treatment record, a clinician found that spirometry results and flow- volume loop were consistent with mild obstructive disease. The record also contains a July 2005 pulmonary test. The clinician found that the veteran had mild obstructive disorder with no significant response to bronchodilators. She also found that the veteran had mild hypoxia with respiratory alkalosis. These treatment records are negative for a diagnosis of asbestos-related lung disease or any type of pleural disease. The veteran underwent a VA examination in January 2007. The examiner noted review of the claims file. The veteran's subjective complaint was shortness of breath for the past 10 to 15 years. He also complained of dry coughing spells that occurred every two months for the last 15-20 years, with these coughing spells lasting 3 to 4 days. Upon physical examination, the veteran's chest was clear to auscultation, and there were no rales, no wheezing, and no skeletal deformity. The examiner noted that the veteran had a chest X-ray done in April 2002 that only revealed evidence of coronary artery bypass graft surgery and a prosthetic valve; it did not show infiltrate or pleural effusion. A pulmonary function test showed moderate obstructive airway disease with worsening on bronchodilator therapy. Diagnosis was moderate obstructive airway disease. The clinician noted that the findings of the pulmonary function tests showed moderate obstructive airway disease with normal lung volume and X-rays showed no pleural plaques. The examiner further reported that the clinical examination showed no rales on examination, and that the findings were less suggestive of asbestosis presentation. The clinician provided the following opinion: "Although there is documentation of exposure to asbestos, there is no clinical evidence of Asbestosis in this veteran. It is not likely that this veteran has asbestos-related lung or pleural disease. There is no evidence of moderate obstructive airway disease, but this is not caused by Asbestosis." Analysis In August 2005, the Board remanded the veteran's appeal for further development. At that time, the Board noted that there was a private medical opinion that indicated that the veteran had an asbestos-related bilateral pleural disease. This private medical letter had been sent to a Maritime Asbestosis Legal Clinic. The record includes evidence that the veteran received payment in settlement of a claim. The veteran explained that the said payment was awarded in settlement of a lawsuit regarding exposure to asbestos while aboard the U.S. Armed Merchant Vessel S.S. Belgian Gulf. While this private medical opinion supports the contended causal relationship, given the absence of any treatment records from this physician or X-ray reports actually showing a current diagnosis of pleural disease, the Board issued the remand to obtain any relevant treatment records that may be available and to afford the veteran a VA examination that included an opinion regarding whether he had a current disability related to asbestos exposure. It is pertinent to note that, if the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Pursuant to the Board's remand, such an examination and opinion were obtained in January 2007. As noted above, upon remand the RO was directed to make a finding regarding whether the veteran had exposure to asbestos during service. Although the RO/AMC did not explicitly make such a finding, the alleged exposure is conceded. However, additional VA and private medical records were obtained and these records do not indicate treatment for an asbestos-related disability or pleural disease. In the January 2007 examination report, the examiner indicated that the veteran was exposed to asbestos but found that the veteran did not have asbestosis or other asbestos-related lung disability. Rather, the diagnosis was moderate obstructive airway disease. The Board finds that the evidence that the veteran had an asbestos-related disability contained in the April 2000 private medical letter is outweighed by the more recent and thorough VA opinion. The Board makes this finding based on the facts that the VA physician reviewed the claims file, to include treatment records and X-ray repots, and he examined the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (holding that greater weight may be placed on one physician's opinion than another physician's opinion depending on factors such as reasoning employed by the physician); Wood v. Derwinski, 1 Vet. App. 190 (1991) (holding that it is the Board's duty to determine the credibility and weight of evidence). The Board concurs with the VA physician's finding that the private and VA treatment records in the claims file do not indicate evaluation or treatment for an asbestos-related lung or pleural disease other than the medical letter written in conjunction with the lawsuit noted above. The veteran contends that he has an asbestos-related lung disability that is attributable to service. However, he has not been shown to possess the requisite medical training or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, his lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the claim for service connection for pleural disease, to include as due to exposure to asbestos, must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for pleural disease, to include as due to in-service exposure to asbestos, is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs