Citation Nr: 0815170 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 03-26 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a lung disability, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from September 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim. The Board notes that by a statement received in October 2006, the veteran withdrew his claim of entitlement to an eye disability. As such, this issue is not before the Board. While the veteran requested a Board hearing on his September 2003 VA Form 9, in an April 2008 statement, he withdrew this request. FINDING OF FACT The veteran does not have a currently diagnosed lung disability. CONCLUSION OF LAW A lung disability, to include as secondary to asbestos exposure, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.310 (2007) REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran'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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to and following the initial adjudication of the veteran's claim, letters dated in August 2001, August 2006 and November 2007 fully satisfied the duty to notify provisions for the first three elements. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The aforementioned letters told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. Since the Board has concluded that the preponderance of the evidence is against the claim for 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). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The November 2007 VCAA letter to the veteran requested that he complete the VA Forms 21-4142, Authorization and Consent to Release Information, for Dr. Frank Mongiardo, Appalachian Regional Head and Neck Center, Dr. Chang and the Fort Sanders Regional Medical Center. There is no evidence that the veteran submitted any additional information to assist VA in obtaining these records. The Board notes that the duty to assist is not always a one-way street. If the veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The veteran's VA treatment records and private medical records reflect periodic treatment for sinusitis and bronchitis. There is also evidence that the veteran has been diagnosed with minimal obstructive sleep apnea. There is no indication that the veteran has a chronic lung disability. As these medical records are current, thorough and focus on the affected area, the Board finds that the preponderance of the medical evidence is against a current diagnosis of the claimed disorder. An examination is not required. See McLendon, supra. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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. See 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 VAOPGCPREC 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). The veteran alleges that he currently suffers from a lung disability that is the result of asbestos exposure in service. In March 1999, the veteran reported to his primary care physician that he had recently received the results of an abnormal chest x-ray in conjunction with a class action he was participating in for asbestos exposure from his post- service railroad employment. The veteran stated that he was positive for asbestosis and was informed that he had a mass in his chest. See private treatment records, George R. Chaney, M.D., March 2, 1999. Following this statement, the veteran was scheduled for a computed tomography (CT) study of the chest, which revealed the veteran's chest to be within normal limits. See Hazard Radiology Associates CT chest study, March 4, 1999. Additionally, a September 2002 chest x-ray report indicated findings within normal limits with no evidence of a chronic respiratory condition. The Board notes that the veteran received treatment for bronchitis and sinusitis on a yearly basis, but he was not diagnosed with a chronic respiratory disability. See private treatment records, George R. Chaney, M.D., general treatment notes. The only remaining evidence in support of the veteran's claim is lay statements alleging that the veteran suffers from a current lung disability. The Board acknowledges that the veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his bronchitis and sinusitis. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board finds that the veteran has failed to meet element (1) of Hickson. In order to be considered for service connection, a claimant must first have a disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In the absence of a diagnosed lung disability, service connection may not be granted. See also Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). The Board declines to address the remaining elements of Hickson, as the veteran does not have a currently diagnosed disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. In this case, for the reasons and bases discussed above, a reasonable doubt does not exist regarding the veteran's claim that he currently suffers from a lung disability that is the result of asbestos exposure in service. There is not an approximate balance of evidence. ORDER Entitlement to service connection for a lung disability, to include as secondary to asbestos exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs