Citation Nr: 0812701 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-30 650 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis or an asbestos-related disability, claimed as a residual of asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran was a member of the American Merchant Marine and is credited with active military service certified as such by the Secretary of Defense under section 410 of Pub. L. 95-202, based on 11 oceangoing voyages from October 28, 1942, to August 15, 1945. See 38 C.F.R. § 3.7(x)(15) (2007). This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision that denied service connection for asbestosis. The veteran timely appealed. In January 2007, a Deputy Vice-Chairman of the Board granted the veteran's representative's motion to advance this appeal on the Board's docket pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). Also in January 2007, the Board remanded the matter for additional development. FINDING OF FACT Asbestosis was not manifested in service and it has not been shown that the veteran has asbestosis or any lung disability associated with asbestos exposure. CONCLUSION OF LAW Asbestosis or an asbestos-related disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist In correspondence dated in October 2005, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was essentially instructed to submit any evidence in his possession that pertained to his claims. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, a March 2006 letter provided notice regarding the disability ratings and effective date provisions that are pertinent to the appellant's claim. VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claims. Thus, the duties to notify and assist have been met. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases nor has VA promulgated any regulations regarding asbestos-related diseases. However, VA has issued procedures on asbestos- related diseases, which provide some guidelines for considering compensation claims based on exposure to asbestos in VA ADJUDICATION PROCEDURE MANUAL M21-1 (formerly Department of Veteran's Benefits, DVB, Circular 21-88-8, Asbestos-Related Disease (May 11, 1988)). Subparagraph 7.21a(1) of the M21-1 recognizes that inhalation of asbestos fibers can produce fibrosis and tumors, interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the larynx and pharynx. Subparagraph 7.21a(3) points out that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Mesotheliomas are not associated with cigarette smoking. Lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. About 50 percent of persons with asbestosis eventually develop lung cancer, about 17 percent develop mesothelioma, and about 10 percent develop gastrointestinal and urogenital cancers. All persons with significant asbestosis develop cor pulmonale and those who do not die from cancer often die from heart failure secondary to cor pulmonale. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, Ch. 7.21(b)(2). An asbestos- related disease can develop from brief exposure (as little as a month or two) to asbestos or indirectly (bystander disease). Id. There is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. Id. It is a fact that many U.S. Navy veterans during World War II were exposed to chrysotile products, as well as amosite and crocidolite, since these varieties of African asbestos were used extensively in military ship construction. Id.; see also Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The United States Court of Appeals for Veterans Claims (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 of 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); VAOPGCPREC 4-2000. The veteran contends that service connection is warranted on the basis that his claimed asbestosis or an asbestos-related disability is the result of exposure to asbestos in service. In this case, service personnel records show that the veteran had served aboard ships as a storekeeper, an oiler, and as an assistant engineer. In January 2004, he reported that his military duties included installing pipe insulation, mortar in boilers, and repairs and replacement of steam lines to all auxiliary equipment. Here, the veteran's statements are competent evidence, via first-hand knowledge, that he was exposed to asbestos, although not of disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The post-service medical records primarily reflect a diagnosis of chronic obstructive pulmonary disease. There are also diagnoses of nicotine dependence and fatigue. The Board's January 2007 remand required an examination for purposes of determining whether the veteran currently had asbestosis or an asbestos-related disability; and if so, whether any current respiratory disability was related to active service-to include asbestos exposure. The evidence in support of the veteran's claim includes probable exposure to asbestos during assigned tasks aboard ships in active service; a March 2000 X-ray reading that identified "parenchymal abnormalities" consistent with pneumoconiosis; and a statement by Paul C. Venizelos, M.D., F.C.C.P., opining that, based on the veteran's significant history of asbestos exposure, the March 2000 X-ray findings are consistent with a diagnosis of bilateral interstitial fibrosis due to asbestosis. However, VA chest x-rays in December 2001 and February 2004 are negative for asbestosis or asbestos-related disease. The findings were consistent with emphysematous changes and chronic obstructive pulmonary disease. A February 2007 VA examiner could not determine whether the veteran had mere asbestos exposure or asbestosis. Subsequently, in November 2007, the same VA examiner reviewed the November 2007 chest X-ray and found no evidence for either "parenchymal or pleural abnormalities." It was explained that interstitial fibrosis can be seen in chronic obstructive pulmonary disease cases. An August 2005 private x-ray report also reflects a diagnosis of chronic obstructive pulmonary disease and no evidence of focal infiltrate or other acute process. While one examiner has identified findings consistent with asbestosis on March 2000 x-rays, subsequent chest x-rays have been interpreted as negative for asbestos-related disease. While Dr. Venizelos is board certified in pulmonary diseases, it is not shown that he examined the veteran or that he reviewed anything other than the single chest x-ray report. The VA examiner reviewed the entire record and concluded that the veteran did not exhibit asbestosis or an asbestos-related disease. It was explained that the findings mentioned by Dr. Venizelos as identifying the presence of asbestosis could also be present in chronic obstructive pulmonary disease cases, and the veteran has been diagnosed with chronic obstructive pulmonary disease. The VA examiner's findings are consistent with the other testing, including several chest x-ray reports dated subsequent to March 2000. The Board finds a clear preponderance of the evidence is against a finding that the veteran has asbestosis or an asbestos- related lung disease. ORDER Service connection for asbestosis or an asbestos-related disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs