Citation Nr: 0816581 Decision Date: 05/20/08 Archive Date: 05/29/08 DOCKET NO. 03-18 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as a residual of asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from August 1974 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that decision, the RO denied entitlement to service connection for bronchitis and asthma, claimed as a lung disease. In September 2005, the veteran provided testimony before a Veterans Law Judge who is no longer employed with the Board. The veteran was apprised of this fact in a letter from the Board dated in March 2008 and was provided the opportunity to exercise his right to testify at a new hearing before another Veterans Law Judge. See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707 (2007). In a response received by the Board in April 2008, the veteran indicated that he did not want to participate in another hearing and requested that the case be forwarded to the Board for appellate consideration. This case was previously before the Board in December 2005, at which time the claim was remanded, primarily for additional evidentiary development to include providing an updated VA examination for the veteran. The actions requested in the Board remand were undertaken and the claim is ready for appellate consideration. FINDINGS OF FACT 1. The evidence on file includes credible evidence of record supporting the veteran's contentions of exposure to asbestos during service. 2. There is no currently diagnosed respiratory disorder attributable to the veteran's period of service or any incident therein to include exposure to asbestos. CONCLUSION OF LAW A respiratory disorder was not incurred in service, to include by virtue of claimed asbestos exposure. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters: Duties to Notify & to Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO provided the appellant with VCAA notice in July 2001, prior to the initial decision on the claim made in May 2002. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in notice letters of 2002 and 2005 about the information and evidence that is necessary to substantiate his claim for service connection, specifically based on the theory of exposure to asbestos. Specifically, the 2005 letter stated that the evidence must show that that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. The veteran was also requested to provide medical evidence which included a diagnosis of a disease caused by asbestos. In addition, the RO notified the veteran in the 2001 and 2005 letters about the information and evidence that VA will seek to provide. In particular, those letters indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim and that VA was requesting all records held by Federal agencies, including service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also notified the veteran about the information and evidence that he was expected to provide. Specifically, the letters notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. It was also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the letters indicated that it was still the veteran's responsibility to support his claim with appropriate evidence. The letters also requested that the veteran send to VA any medical reports that he had. In addition, the Board finds that the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. In this regard, the RO has informed the appellant in the rating decision, SOC and Supplemental SOCs of the reasons for the denial of his claim and, in so doing, informed him of the evidence that was needed to substantiate that claim. Although the 2005 letter was provided after the adjudication of the claim, the veteran is not shown to be prejudiced by the timing of this VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). See also, Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). A Supplemental SOC was provided in September 2007 after the issuance of the 2005 duty to assist letter. Further, through his statements, the veteran has demonstrated his understanding of what is necessary to substantiate his claim, i.e., any notice defect was cured by the veteran's actual knowledge. See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In any event, the Board finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the hearing loss claim and thus the essential fairness of the adjudication was not frustrated. Id. As such, the Board concludes that, even assuming a notice error, that error was harmless. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. This specific notice was provided for the veteran in May 2007. However, since the Board concludes herein that the veteran is not entitled to service connection for his claimed disorder, any question as to the appropriate disability rating or effective date to be assigned is rendered moot. Therefore, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In addition, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records were obtained and were reviewed by both the RO and the Board in connection with his claim. The record also contains pertinent and copious post-service private and VA medical records as well as records from the Social Security Administration. The veteran provided testimony at a Board hearing held in 2005. A VA examination was provided in 2007 at which time no respiratory disorder was diagnosed. The veteran's representative maintains that the record does not contain pulmonary function tests which were to be conducted upon VA examination of 2007. However, the record clearly states that the veteran was purposefully uncooperative in an attempt to evade and manipulate those test results. Accordingly, even if on file they would be unreliable and non-probative for purposes of establishing disability. In this regard, the Court has held that VA's duty to assist the veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Accordingly, in light of the veteran's failure to cooperate, a remand for additional development is not required in this case. It is also argued that by the veteran's representative that the 2007 VA examination report did not contain a complete medical opinion as to etiology as was requested in the 2005 Board remand. However, inasmuch as no current respiratory disorder was diagnosed upon VA examination in 2007, there was no etiology to address. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. For the reasons noted above, the Board finds that there is no reasonable possibility that further assistance would aid the veteran in substantiating the claim. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Factual Background In April 2001, the veteran filed an original service connection claim for a lung disorder. The veteran's DD Form 214 shows that he served with the US Navy and served aboard the USS Anchorage with a primary specialty as an electrician. Service medical records (SMRs) show that on enlistment examination conducted in August 1974, clinical evaluation of the lungs, chest and heart were normal and an X-ray film of the chest was negative. The veteran was treated for symptoms of cough, and throat pain in November 1975, assessed as possible bronchitis. In December 1976, the veteran was seen for symptoms of sore throat, nasal congestion and cough, assessed as tonsillitis. The veteran was treated for tonsillitis again in May 1977 and September 1978, with symptoms of sore throat and coughing. The August 1978 separation examination report indicates that clinical evaluation of the lungs, chest and heart were normal and an X-ray film of the chest was within normal limits. The veteran denied having symptoms of shortness of breath or chronic cough. The SMRs failed to contain any reference to asbestos exposure. VA records show that X-ray films of the chest were taken in March 1994 pursuant to the veteran's complaints of a 2 day history of right-sided pleuritic chest pain. The films revealed emphysematous changes consistent with chronic obstructive pulmonary disease (COPD). When examined by VA in August 1994, the veteran complained of a 2 year history of chest pain, following stress and exertion. Clinical evaluation of the lungs was normal. The filed contains a private medical report of June 1995 authored by Dr. L, a pulmonary specialist. At that time, the veteran complained of shortness of breath, dyspnea on exertion, cough and fatigability. The veteran reported that he was under care at VA for an asthmatic/bronchitic condition for which he was using inhalers. He gave a history of smoking a pack a day since age 17, having smoked for about 21 years. He also reported having served with the US Navy for 4 years as an electrician and thereafter having worked at the Long Beach Naval Shipyard from 1977 until about 1993, as a painter, electrician and insulator and gave a history of asbestos exposure in conjunction with those assignments. Impressions of a history of asthma and bronchitis and probable asbestotic lung disease were made. The report indicated that the veteran could not afford and was not covered for further testing. Dr. L. indicated that based on the information at hand, there was a probability that the veteran had asbestotic lung disease, especially considering his long and protracted history of asbestos exposure. A VA hospitalization report of March 1997, listed the veteran's medical problems which included asthma. A VA record dated in May 1997 documents that the veteran was seen for a follow up for symptoms of a sore throat and coughing from the week before. In October 2001 information and an opinion was provided by a contact representative of the Navy Medical Liaison Office of the NPRC. The representative stated that there was no way of determining to what extent the veteran was exposed to asbestos during his Naval service and observed that since the veteran's occupation was as an Interior Communications Electrician (IC), it was probable that he was exposed to asbestos. It was also noted that a definite statement as to exposure could not be made. Also provided was a report of Navy Enlisted Occupational Standards for Interior Communications Electrician. VA records dated in 2001 and 2002 reflect that the veteran's medical problems included allergic rhinitis and acute sinusitis. In a statement provided in 2003, the veteran reported being assigned to the USS Point Defiance in 1975 in which he was exposed to asbestos in his living quarters from exposed pipes, and photographs of this ship were provided. The veteran presented testimony at a video conference hearing held in September 2005. The veteran reported that he had been exposed to asbestos during service while working in the engine spaces throughout the ship to which he was assigned. In 2006 records from the Social Security Administration (SSA) were received which reflected that the veteran had been awarded disability benefits based on disorders of the back and other arthropathies. A VA examination was conducted in June 2007. The veteran complained of chronic sough and shortness of breath. Examination of the chest was clear and heart rate was regular with no murmurs or rubs. There was no indication of dyspnea on exertion or shortness of breath. X-ray films of the chest revealed no consolidative lung infiltrate. There was no pleural effusion present or evidence of pleural plaque. A diagnosis of no evidence of asbestosis was made. It was noted that the veteran had been scheduled to undergo pulmonary studies, but that the veteran had given exceedingly poor effort and had attempted to evade the test. Legal Analysis The veteran contends that he had been exposed to asbestos for 10 years when he was assigned to remove asbestos at Long Beach Naval Base and indicated that during service he worked as an electrician in the engine room of the USS Anchorage during which time he sustained asbestos exposure. The Board has thoroughly reviewed all the evidence in the veteran's claims folder. 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, as to 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, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain conditions, such as cardiovascular-renal disease, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary, however. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, ch. 1, section H, 29, referencing ch. 2, section C, 9) (last updated September 29, 2006) (hereinafter "M21-1MR"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim of entitlement to service connection for asbestos related conditions/asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1MR contains guidelines for the development of asbestos exposure cases. Most relevant to this case, part (b) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis or asbestosis. Inhaling asbestos fibers can also lead to 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). Section (c) notes as important that all persons with significant asbestosis develop cor pulmonale, heart disease secondary to disease of the lung or its blood vessels, and those who do not die from cancer often die from heart failure secondary to cor pulmonale. Also of significance is that disease-causing exposure to asbestos may be brief, and/or indirect. Section (d) notes that the latency period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. Section (e) provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. In this case, the record at least suggests that the veteran sustained both in service and post-service exposure to asbestos. The most probative evidence of in-service exposure consists of the October 2001 statement provided by a contact representative of the Navy Medical Liaison Office of the NPRC who indicated that while there was no way of determining to what extent the veteran was exposed to asbestos during his Naval service, since the veteran's occupation was as an Interior Communications Electrician (IC), it was probable that he was exposed to asbestos. Accordingly, for purposes of this decision in-service exposure to asbestos is established. However, essentially the file contains no evidence of a currently diagnosed respiratory disorder. There was no respiratory disorder diagnosed upon VA examination conducted in 2007. VA records dated in 2001 and 2002 reflect that the veteran's medical problems included allergic rhinitis and acute sinusitis, which were not diagnosed subsequent to that time. In McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court held that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." In this case, the record includes no current diagnosis of a respiratory disorder since the filing of the original claim in April 2001; hence the record does not contain evidence of the currently claimed disability. The law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Even if the Board were to presume that the record contained a current diagnosis of a respiratory disorder, the claim would still fail since there is no competent medical evidence of record establishing or even suggesting that the claimed disorder is in any way etiologically related to service, to include by virtue of asbestos exposure sustained in service. In this case, no probative and/or competent evidence has been presented which establishes or even suggests that the veteran's claimed respiratory is etiologically related to service or any incident therein. A requirement for a showing of such a relationship has been repeatedly reaffirmed by the Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service (or a service connected disability) and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There must be competent evidence establishing an etiological relationship between an injury or disease in service and the current disability. The veteran, as a lay person, is not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, contentions, statements and hearing testimony of the veteran, no matter how well meaning, without supporting medical evidence that would etiologically relate the currently claimed condition with conditions or events which occurred in or are related to service, is not competent medical evidence. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). After considering all the evidence under the laws and regulations set forth above, the Board concludes that although there is credible evidence in this case showing that the veteran suffered an injury or disease in service (i.e., exposure to asbestos), there is no competent medical evidence of a currently diagnosed respiratory disorder related to service. In deciding whether the claimed benefits are warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). In this case, the Board finds that the preponderance of the evidence weighs against the veteran's claim and therefore, the provisions of § 5107(b) are not applicable. Accordingly, entitlement to service connection for a respiratory disorder is denied. ORDER Entitlement to service connection for a respiratory disorder, claimed as a residual of asbestos exposure in service, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs