Citation Nr: 0740928 Decision Date: 12/28/07 Archive Date: 01/03/08 DOCKET NO. 05-10 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Augusta, Maine THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: Massachusetts Veterans Services WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD D. Sigur, Associate Counsel INTRODUCTION The veteran served in the United States Navy from November 1953 until November 1955, when he was honorably discharged. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2004 decision of the Department of Veterans Affairs (VA) Regional Office in Augusta, Maine (the RO). The veteran perfected his appeal by filing a substantive appeal in March 2005. The RO in Providence, Rhode Island now has original jurisdiction over the claims folder. During an April 2006 Travel Board hearing at the Providence RO, the veteran presented testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the veteran's VA claims folder. In January 2007, the Board remanded this case so that additional evidentiary development could be accomplished. The case is once again before the Board. FINDING OF FACT The competent medical evidence of record does not include a current diagnosis of asbestosis. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision on the issue on appeal. Stegall concerns In January 2007, the Board remanded this claim in order for the Veterans Benefits Administration (VBA) to obtain clarification from the veteran and his representative concerning the veteran's claim and to obtain a clarifying medical nexus opinion. VBA was then to readjudicate the claim. VBA contacted the veteran and his representative via a lengthy letter dated February 8, 2007. The veteran underwent a VA examination in July 2007. VBA readjudicated the claim in a September 2007 supplemental statement o the case. VBA has thus complied with the directives of the January 2007 remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2006) [reasonable doubt to be resolved in veteran's favor]. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. To comply with VCAA notice requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). The Board observes that letters were sent to the veteran in March 2003, February 2007 and June 2007 which were specifically intended to address the requirements of the VCAA. The March 2003 letter from the RO specifically notified the veteran that to support a claim for service connection, the evidence must show ". . . that you were exposed to asbestos in service and that the exposure caused a disease or injury that has continued since your discharge." Second, the RO must inform the claimant of the information and evidence VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). In the March 2003 VCAA letter, the veteran was informed that VA was responsible for obtaining "medical records, employment records, or records from other Federal agencies." This letter also advised the veteran that VA would assist him by providing a medical examination or getting a medical opinion "if we decide that it's necessary to make a decision on your claim." Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). The March 2003 letter notified the veteran that he "must give us enough information about these records so that we can request them from the agency or person who has them. It's still your responsibility to support your claim with appropriate evidence." More specifically, the veteran was advised that if "there are any other private medical records that would support your claim, you can complete the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and we will request those records for you." [Emphasis as in original.] Alternatively, the veteran was advised that he could "also get these records yourself and send them to us." The RO must request that the claimant provide any evidence in his possession pertaining to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). The March 2003 letter instructed the veteran to "tell us about any additional information or evidence that you want us to try to get for you or that you may have in your possession." This request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran received Dingess notice in a separate letter dated March 2006. In this case, element (1), veteran status, is not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the veteran's claimed asbestosis. In other words, any lack of advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. The veteran's claim of entitlement to service connection was denied based on element (2), existence of a disability. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to that crucial element. Because as discussed below the Board is denying the veteran's claim, elements (4) and (5) remain moot. The veteran received amplification of the previously provided VCAA notice, including Dingess notice, in another VCAA letter, dated February 8, 2007 In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records and private treatment records. The veteran was provided VA examinations in June 2003, February 2005 and July 2007, the reports of which indicate that the examiners performed appropriate X-ray studies and rendered appropriate diagnoses and opinions. The veteran and his representative have not identified any outstanding evidence. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of that statute. The Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2006). The veteran engaged the services of a representative, was provided with ample opportunity to submit evidence and argument in support of his claim, and provided testimony at a April 2006 Travel Board hearing, as was noted in the Introduction. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Pertinent Law and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Additionally, 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. See 38 C.F.R. § 3.303(d) (2006). In order to establish service connection for the claimed disorder, there must be 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure 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. 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 a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). 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 also VA O.G.C. Prec. Op. No. 04-00. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988). Analysis The veteran seeks service connection for asbestosis. He contends that he developed asbestosis as a result of asbestos exposure while working as a pipe fitter in the United States Navy. The first Hickson element is the existence of a current disability. Essential to the award of service connection is the existence of a disability. Without it, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) [noting that service connection presupposes a current diagnosis of the claimed disability]; see also Chelte v. Brown, 10 Vet. App. 268 (1997) [observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection]. The medical evidence as to the existence of the claimed disability, asbestosis, is in conflict. Against the veteran's claim are three VA examination reports, all of which conclude that no asbestos was found in the veteran's lungs. A June 2003 examination record noted that "there is . . . no evidence of asbestosis on today's examination and there is no evidence of asbestosis neither by X-ray nor by PFT [pulmonary function testing]." A February 2005 examination record stated that "there is basically no evidence [of] asbestos on either chest X-ray or pulmonary function test." A July 2007 record noted that the veteran's "chest X-ray and pulmonary function tests are normal; therefore, the veteran's respiratory condition is less likely than not related to his history of asbestos exposure." However, the veteran produced private medical reports dated in August 2002 and May 2004 in support of his claim. The August 2002 medical record from J.S., M.D, as part of a asbestos litigation case (evidently not involving the veteran's military service), found that there was an ". . . interstitial pattern, consisting of small, irregular linear opacities within the mid and lower lung zones bilaterally." Dr. J.S. noted, however, that the film quality of the veteran's pulmonary X-ray was "grade 3, due to underinflation and underexposure" and that "[a] repeat chest X-ray is advised due to underinflation on the original film." [Evidently, no additional x-ray studies were performed.] Dr. J.S. also found that the pulmonary function testing demonstrated "normal spirometry and lung volumes . . . ." Notwithstanding the fact that there was poor X-ray quality and no evidence of problems on pulmonary function testing, Dr. J.S. concluded that there was "pulmonary asbestosis, based on the interstitial changes on the chest X- ray and the exposure history." In the May 2004 report, M.B., M.D., noted an X-ray finding of "hypoventilatory changes or scarring both lung bases." From that X-ray, Dr. M.B. opined "bibasilar scar/cicatrix tissue, secondary to asbestos exposure in Navy, in my opinion." The Board observes that the only apparent evidence for this nexus opinion was an X-ray report in which there was no noted asbestos in the lungs. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). For reasons stated immediately below, the Board believes that the VA opinions, based as they are on x-ray and clinical studies, are more probative than the private opinions. Both the August 2002 and May 2004 private medical opinions appear to not be based on competent diagnostic evidence of asbestosis. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Indeed, Dr. J.S. admitted that he was basing his opinion of x-ray evidence of poor quality. Neither private physician specifically identified any residual of asbestos inhalation, and neither accounted for normal pulmonary function testing. Accordingly, the Board places little weight of probative value on those reports. The VA examinations, on the other hand, are persuasive evidence that the veteran does not suffer from asbestosis and therefore has no current disability. In those reports, the examiners reviewed X-rays of the veteran's chest. The veteran's lungs were deemed to be clear. The examiners concluded that there was no active pulmonary disease related to asbestos. Moreover, there is no other evidence which indicates that any residuals of asbestos exposure exist. The veteran has not stated that he is currently undergoing treatment for asbestosis, or that he has ever undergone treatment for that disease. The medical records in the file do not in fact document any such treatment. This lack of evidence that the veteran suffers from any asbestosis-related disability is probative. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. The Board notes, however, that the veteran does have a history of respiratory problems, including pneumonia and bronchitis. However, the veteran does not appear to state that those illnesses are related to his asbestos exposure in the military, and none of the medical evidence of record suggests that such is the case. Therefore, the Board has properly construed the veteran's current claim to be for entitlement to service connection for asbestosis only. To the extent that the veteran himself contends that he has asbestosis, it is now well-established that lay persons without medical training are not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-5 (1992) see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Because the record contains no competent medical evidence establishing the presence of an asbestosis-related disability, service connection is not warranted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met, and the claim fails on this basis alone. For the above-discussed reasons, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for asbestosis. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs