Citation Nr: 0813015 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-42 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for lung disease, claimed as the result of asbestos exposure. 2. Entitlement to service connection for the residuals of multiple cerebrovascular accidents (CVAs), claimed as the result of asbestos exposure, and including as secondary to lung disease. 3. Entitlement to service connection for a brain tumor, claimed as the result of asbestos exposure, and including as secondary to lung disease. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for post-traumatic stress disorder (PTSD) (claimed as the result of asbestos exposure), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from July 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2001 and February 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2005, the veteran testified at a Board hearing before the undersigned. In March 2006, the Board remanded this case. FINDINGS OF FACT 1. Inservice exposure to asbestos is not confirmed. 2. The veteran does not have lung disease related to claimed inservice asbestos exposure. 3. Residuals of CVAs are not attributable to claimed inservice asbestos exposure. 4. A brain tumor is not attributable to claimed inservice asbestos exposure. 5. In a June 2002 rating decision, the RO denied service connection for PTSD. An appeal was not perfected to that denial. 6. Evidence submitted since the RO's June 2002 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim. 7. PTSD is not attributable to claimed inservice asbestos exposure. CONCLUSIONS OF LAW 1. Service connection for a lung disability due to claimed inservice asbestos exposure is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007); M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988); VAOPGCPREC 4-00. 2. Service connection for residuals of CVA due to claimed inservice asbestos exposure is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007); M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988); VAOPGCPREC 4-00. 3. Service connection for a brain tumor due to claimed inservice asbestos exposure is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007); M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988); VAOPGCPREC 4-00. 4. The RO's June 2002 rating decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2006). 5. New and material evidence has been received since the RO's June 2002 rating decision; thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2006), 38 C.F.R. § 3.156 (2007). 6. Service connection for PTSD claimed as due to inservice asbestos exposure is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007); M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988); VAOPGCPREC 4- 00. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, VCAA letters were sent in April 2001 and March 2002. Thereafter, additional VCAA letters were sent in December 2002, March 2003, June 2004, August 2004, April 2006, and December 2006. Cumulatively, the VCAA letters fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service medical records, VA medical treatment records, Social Security Administration (SSA), and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in April 2007. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The Board notes that the VA examiner did not answer the Board's remand inquiry of whether the veteran has or has had a brain tumor. However, the veteran has limited his claim to service connection for claimed disabilities as due to asbestos exposure. As set forth below, even assuming the veteran currently has a brain tumor, the Board finds that the veteran was not exposed to asbestos during service. Therefore, since that requirement is not met, service connection is not warranted, regardless of current diagnoses. Since the Board has concluded that the preponderance of the evidence is against the claims of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 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. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In this case, the veteran does not assert that claimed disabilities were manifest in service or within any applicable presumptive period. Rather, the veteran has very specifically limited his appeal to service connection for claimed disabilities on the basis that they are the result of inservice asbestos exposure and/or the result of asbestos- related lung disability. Background In December 1998, the veteran suffered a CVA. He also suffered two subsequent CVAs. In November 1999, the veteran was seen by VA on an outpatient basis for depression. He was hospitalized that month for adjustment disorder with depressed mood. Also, in May 2000, the veteran was seen by VA on an outpatient basis for a depressive disorder. In May 2000, the veteran was afforded a VA neurological examination. The diagnosis was status post CVA twice with residual mild left hemiparesis and other neurological findings. In May 2000, the veteran was afforded a VA general medical examination. The diagnoses included depressive disorder and residuals of CVA with residual symptoms. In May 2000, correspondence was received from the veteran in which he generally indicated that he was seeking service connection compensation benefits. In January 2001, the veteran indicated that he had symptoms of a stroke initially during service. He submitted an information flyer on strokes. In February 2001 correspondence, the veteran reported that he had PTSD. In a March 2001 statement, the veteran indicated that he saw a plane crash on the flight line. He stated that he had felt haunted since this incident and unable to lead a normal life. Thereafter, the veteran completed a PTSD questionnaire. The veteran indicated that the plane crash occurred at Edwards Air Force Base in California in July or August 1976. In March 2001, lay statements were received from the veteran's girlfriend and a friend in which they stated that since returning from the Vietnam, the veteran had appeared aggressive and depressed. In May 2001, more lay evidence was received from the veteran's former wife and a friend; both indicated that the veteran appeared mentally ill and was abusive, dating since his return from service. Thereafter, a statement was received from J.D., Jr., who purportedly served with the veteran. He indicated that his "ordeal with his stressors in technical school was true." However, he did not state what these stressors were in his statement. In a November 2001 rating decision, service connection for PTSD was denied. Service connection for residuals of CVA was also denied. Thereafter, treatise information was received pertaining to PTSD and depression. In a June 2002 rating decision, service connection for depression/anxiety and for PTSD was denied. In April 2002, the veteran was given a psychiatric evaluation. The diagnosis was depressive and anxiety disorder, not otherwise specified. The veteran was hospitalized by VA from June to July 2002. The diagnoses included recurrent CVA with mild right-sided weakness and mild dysarthria and old CVA with mild left-sided weakness, as well as history of anxiety and depression. In July 2002, the veteran was treated by VA for anxiety and depression. In September 2002 correspondence, the veteran indicated that he had been exposed to asbestos during service. He submitted treatise information on asbestos exposure. In a subsequent statement, he indicated that during service, he worked with asbestos when he installed wires and other materials. His DD 214 reflected that he was a Mechanical-Electrical Helper during service. The veteran submitted a copy of a February 2000 VA brain image scan which revealed a minor abnormality in the basal ganglia of his brain which he asserted was related to asbestos exposure. He maintained that this abnormality was a brain tumor. He also asserted that his prior CVAs were related to asbestos exposure. In October 2002, the veteran underwent a chest x-ray which showed no evidence of active infiltrate. Thereafter, the veteran submitted internet information which showed that Edwards Air Force Base Wherry Housing was undergoing renovation. It was indicated that there was asbestos and lead-based paint at that housing. The start date of the renovation was January 1995 and the completion date was April 1997. The veteran asserted that he lived there from 1974 to 1976 in Desert Villa. In June 2003, the veteran was evaluated by M.Y., M.D., for asbestosis. The veteran reported that he was exposed to asbestos during the military. Post-service, he lived in housing which was demolished due to asbestos. The physician noted that his chest x-ray was normal and showed no evidence of asbestos exposure. The veteran had no plaques or interstitial lung disease. June 2003 pulmonary function tests revealed early small airways obstruction and severe restrictive disease. August 2003 VA records showed that the veteran was told by the VA neurologist that he did not have a brain tumor. November 2003 records noted that the veteran had severe restrictive lung disease and depression. It was noted that he had been having a dispute with the VA neurologist over the presence of a "glioma." It was noted that a glioma had not been seen on VA films. In a December 2003 notation, it was noted that the examiner sought to rule out lung disease secondary to asbestos exposure. The veteran continued to be seen by VA for depression. In March 2004, the veteran testified at a hearing at the RO. The veteran related that he was exposed to asbestos during service in his job and at his base housing at Edwards Air Force Base. During service, the veteran reported that he was an electrical mechanical helper and he came into contact with asbestos. He worked in Hangers and Housing areas. The veteran related that he currently had lung problems and used inhalers. In addition, he reported that he had suffered strokes in December 1998, January 1999, and July 2002. In addition, he had a brain tumor in 2000. In April 2004, the veteran was admitted by VA for depression and suicidal ideation. The diagnosis was mood disorder and PTSD. The basis for the diagnosis of PTSD was not provided. The veteran was also seen at the pulmonary disease clinic, the veteran reported that a different physician explained to him that his CVA was caused by the strain in his heart caused by his restrictive lung function which was a consequence of asbestos exposure. The examiner put a question mark next to this report by the veteran. The veteran's report with regard to a prior physician is not documented in any of the records. This examiner concluded that there were no calcified pleural or diaphragmatic plaques to indicate asbestos exposure and there were no pleural effusions. April 2004 chest x-rays revealed no acute infiltrate. In June 2004, the veteran sought to reopen his claim of service connection for PTSD on the basis that his PTSD was the result of inservice asbestos exposure. In June 2004, the veteran reported to a VA examiner that he was exposed to asbestos during service and he reported that he had an asbestos-related lung disorder. The diagnosis was recurrent depression, severe, with psychosis; rule out PTSD. Private medical records dated in June and July 2004 showed that the veteran had restrictive lung disease. In August 2005, the veteran was seen by VA for pulmonary complaints,. He told the examiner that he had inservice asbestos exposure. In August 2005, the veteran testified at a Board hearing. At that time, the veteran again emphasized, consistent with all written correspondence, that he was exposed to asbestos during service and that this asbestos exposure resulted in lung disability (asbestosis), three CVAs, and a brain tumor. He indicated that he was exposed to asbestos in his job as a mechanical electrical helper where he worked on hangers. In addition, he reportedly was housed in a unit with asbestos. A March 2006 letter from an attorney's office with regard to asbestos screening indicated that the veteran did not qualify for a third party civil action at this time, but might qualify for Worker's Compensation. Attached to the letter was a February 2006 report concerning a July 2003 private computerized tomography of the chest which showed that the veteran had parenchymal findings which were compatible with interstitial fibrosis. The distribution and appearance were compatible with asbestos-related interstitial fibrosis. It was noted that the lack of conventional images limited comprehensive evaluation for pleural disease. In order to definitively determine if the veteran had an asbestos-related lung disease, particularly in light of the February 2006 report which was inconsistent with prior findings, the Board remanded this case for a VA examination which was conducted in April 2007, and included a comprehensive review of the claims file. A physical examination was performed and chest x-rays were taken. The lung x-rays showed that the lung fields were clear of acute infiltrate. The examiner noted that pulmonary function testing revealed severe obstructive airway disease. The examiner concluded that the veteran had chronic obstructive pulmonary disease (COPD) of unknown etiology. The examiner stated that there was no current or past evidence of asbestosis. The current and previous x-rays were negative for pleural effusion or calcification which would suggest a diagnosis of asbestosis. In the Board's remand, the Board requested that the Air Force be contacted to determine the likelihood of inservice asbestos exposure. The Air Force responded that it did not compile such documentation. The veteran's personnel records; however, did not show any asbestos exposure. In addition, a compilation of the veteran's employment since 1978 was made. In pertinent part, the veteran was employed for an oil and gas company, for a welding and fabrication company, and electric company, a brake center, and as a wire puller at a shipyard. At his Board hearing, the veteran stated that there was asbestos at that shipyard. Competency and Credibility The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet App 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. 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")). See Barr. The issues do not involve simple diagnoses. See Jandreau. The claimant is not competent to provide more than simple medical observations. He is not competent to provide diagnoses in this case nor is he competent to provide a complex medical opinion regarding the etiology of the claimed disabilities. See Barr. The Board recognizes that the veteran feels that he had inservice asbestos exposure which has led to his claimed disabilities. However, the veteran's lay assertions are not competent or sufficient with regard to whether he was exposed to asbestos which resulted in residual disabilities. Treatise Evidence The Board has carefully considered the internet and other information articles that have been submitted by the veteran regarding asbestos and also regarding PTSD. Medical treatise evidence can provide important support when combined with the pertinent opinion of a medical professional. Similarly, medical treatise evidence could "discuss [] generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Mattern v. West, 12 Vet. App. 222, 229 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Here, the aforementioned information is simply too general to make a causal link more than speculative in nature, or to outweigh the specific medical evidence in this case which is directly pertinent to the veteran. The Board recognizes that there are various sources of asbestos exposure and a myriad of resulting disabilities. However, the submitted information does not pertain to the veteran's specific set of circumstances. The Board also recognizes that the veteran allegedly lived in military family housing where there was purportedly asbestos. However, as set forth below, the veteran does not have any asbestos related lung disease nor does he have any other disability which has been linked by competent evidence to any alleged inservice asbestos exposure. Residuals of Claimed Asbestos Exposure As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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. VAOPGCPREC 4-00. 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). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, 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, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. 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. In this case, the record shows that there has been general compliance with M21-1 procedures. It was unclear whether the veteran's military occupational specialty exposed him to asbestos. Therefore, the Department of the Air Force was contacted; however, the Department of the Air Force was unable to verify asbestos exposure. The veteran's service personnel and medical records were likewise negative. There is no evidence of preservice asbestos exposure. However, the veteran's post-service employment record shows that he may have been exposed, particularly as a shipyard worker. Further, and more significantly, the veteran does not have any asbestos-related lung disease. As noted above, VA has acknowledged that inhalation of asbestos fibers can result in lung abnormalities, specifically, interstitial pulmonary fibrosis (asbestosis) fibrosis and tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung and other areas: the gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). However, the veteran does not have any of these diagnoses. The post-service medical records were negative for any asbestos-related disability until a July 2003 private computerized tomography of the chest showed parenchymal findings which were compatible with interstitial fibrosis and that the distribution and appearance were compatible with asbestos-related interstitial fibrosis. However, it was noted that the lack of conventional images limited comprehensive evaluation for pleural disease. As noted, the veteran was thereafter afforded a comprehensive VA examination in order to verify the existence of asbestos- related disease. The April 2007 report revealed that while the veteran had COPD, he did not have asbestosis. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). As noted, the Board affords the most probative weight to the VA examination report as it was comprehensive in nature and based on a review of the claims file, to include of the computerized tomography. The computerized tomography noted that the lack of conventional images limited a comprehensive evaluation for pleural disease. In addition, this report is inconsistent with the rest of the record. As such, the probative value of that report is outweighed by the VA examination report. Further, to the extent that the veteran told medical professionals that he was exposed to asbestos exposure, their notations that he stated this information are not independent medical opinions to that effect. Rather, they are simply a recitation of his own personal history. Similarly, although the veteran has mentioned that medical persons have supported his theories regarding his claimed disabilities, the medical record does not support his statements and he has been provided every opportunity to submit such evidence and has not done so. The clear preponderance of the evidence indicates that the veteran does not have asbestos-related lung disease. The claimed inservice asbestos exposure was not confirmed. Further, there is no competent evidence relating any current disability including residuals of CVAs or a brain tumor and asbestos exposure. Due to the lack of verified inservice asbestos exposure and lack of a competent medical nexus between CVAs and a brain service and such claimed asbestos exposure, the claims of service connection must fail. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service- connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). The veteran claims that he has residuals of CVAs and a brain tumor which are secondary to asbestos-related lung disease. Since service connection has been denied for lung disease due to asbestos exposure, the secondary service connection claims must also fail. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claims, and they must be denied. New and Material Evidence In a November 2001 rating decision, the RO denied service connection for PTSD. This denial was confirmed and continued in a June 2002 rating decision. A notice of disagreement was received and a statement of the case was issued in November 2002. However, the veteran did not perfect an appeal. Therefore, the RO's June 2002 decision (the later rating decision) is final. 38 U.S.C.A. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The legal standard of what constitutes "new and material" evidence was recently amended. This amendment is applicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001, and this claim was so filed in June 2004. See 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the veteran's claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the veteran now claims that service connection for PTSD is warranted as he has PTSD due to inservice asbestos exposure. In support of his claim, the veteran has submitted treatise evidence and medical evidence which shows a post-service diagnosis of PTSD in April 2004. Assuming the credibility of the veteran's statements and the submitted evidence, pursuant to Justus, new and material evidence has been received and the claim of service connection is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Once the claim is reopened, the Board must then weigh and evaluate the evidence. There is discrepancy over whether the veteran actually has PTSD. As noted, the basis for the PTSD diagnosis in April 2004 was not provided. Subsequently, the diagnosis of PTSD was not confirmed, although the veteran has other psychiatric diagnoses. As set forth in detail above, the claimed inservice asbestos exposure was not confirmed or verified. More importantly, there is no competent medical evidence establishing a nexus between any current diagnosis and service, as required by VAOPGCPREC 4-00. Therefore, the Board finds that service connection for PTSD as due to claimed inservice asbestos exposure is not warranted. A preponderance of the evidence is against the claim for service connection for PTSD, the benefit-of-the-doubt doctrine is inapplicable, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Service connection for lung disease, claimed as the result of asbestos exposure is denied. Service connection for the residuals of multiple CVAs, claimed as the result of asbestos exposure, and including as secondary to lung disease is denied. Service connection for a brain tumor, claimed as the result of asbestos exposure, and including as secondary to lung disease, is denied. The application to reopen a claim for entitlement to service connection for PTSD, claimed as the result of asbestos exposure, is granted. Service connection for PTSD, claimed as the result of asbestos exposure, is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs