Citation Nr: 0817365 Decision Date: 05/27/08 Archive Date: 06/09/08 DOCKET NO. 05-01 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a respiratory condition, claimed as asbestosis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant/veteran ATTORNEY FOR THE BOARD M. R. Weaver, Associate Counsel INTRODUCTION The veteran served on active duty from August 1955 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied service connection for asbestosis. This case was previously before the Board in August 2006 and was remanded further development. The case is now properly returned for further appellate consideration. In June 2006, the veteran testified at a Video Conference before the Board. A transcript of that hearing is in the claims file. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran was exposed to asbestos during service. 3. The veteran had significant occupational asbestos exposure following service. 4. The veteran's current respiratory condition is not related to his period of active service. CONCLUSION OF LAW A respiratory condition, to include asbestosis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(d) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated February 2003, VA notified the veteran of the information and evidence needed to substantiate and complete his claim of entitlement to service connection for a respiratory disorder, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in May 2006. Accordingly, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, initial notice was provided prior to the appealed AOJ decisions in keeping with Pelegrini. Thus, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence, affording him a physical examination, obtaining medical opinions as to the etiology and severity of his respiratory disorder, and by affording him the opportunity to give testimony before the Board in June 2006. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file, and the veteran does not appear to contend otherwise. Hence, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. As such, the merits of the claim will be addressed. The veteran contends that he developed asbestosis as a result of working aboard a tug boat in the United States Navy. He fully acknowledges that he had post-service exposure to asbestos, but believes his disability began because of in- service exposure. The veteran has not, however, provided a medical opinion to support his contentions. A claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be "chronic" as opposed to merely "acute and transitory" in nature. 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. See Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). There is no specific statutory guidance and the Secretary of VA has not promulgated any regulations with regard to asbestos-related claims. VA, however, 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 (1993); McGinty v. Brown, 4 Vet. App. 428 (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. See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In short, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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 provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, do not create a presumption of exposure to asbestos. See Dyment v. West, 13 Vet. App. 141 (1999). Hence, medical nexus evidence is required in claims for asbestos related disease. See VAOPGCPREC 04-00. The record contains service medical records and post-service medical records, which will be addressed as pertinent. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The Board acknowledges that an April 2001 medical report from the Texas Occupational Medicine Institute shows that the veteran has a current diagnosis of asbestos-related pleural disease with impairment. In a June 2006 video hearing, the veteran testified that he was exposed to asbestos while working on a tug boat during service. He stated that his duties required him to chip paint and rust overhead in the engine room and tape joints on asbestos insulated steam pipes. While stationed in Japan, he averred that his tug was hit by a typhoon causing asbestos to cover him and his bedding. The veteran also testified that he worked in construction after his discharge from service and was exposed to asbestos as a millwright in plants and as a welder's helper at a machine shop. Service medical records do not include complaints of or a diagnosis for a respiratory disorder. A chest x-ray dated in July 1998 shows evidence of a previous granulomatous disease of the lungs and changes due to underlying chronic obstructive pulmonary disorder, but no acute infiltrate. In April 2000, the veteran related to the Texas Occupational Medicine Institute that he had a lot of bystander exposure to asbestos between 1958 and 2001 while working as a painter, sandblaster, tubing tester, and machinist. An x-ray performed in April 2001 revealed bilateral pleural thickening and the assessment was that the veteran had an asbestos- related pleural disease. The veteran underwent VA examination in December 2006. The examiner reviewed the veteran's claims folder, including service records and post-service treatment records, and examined the veteran. Following a complete assessment, the examiner opined that the veteran's currently diagnosed respiratory disorder was less likely related to asbestos exposures during his military service as he had approximately eighteen months of exposure during service in the 1950's and decades of exposure following service. The examiner also noted that the veteran had smoked approximately one pack of cigarettes per day for forty-two years and opined that this factor would contribute to some of the veteran's respiratory problems. It is important to point out at this juncture that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. After carefully reviewing the evidence and resolving all reasonable doubt in the veteran's favor, the Board finds that the veteran was exposed to asbestos during service as his service personnel records indicate service on naval ships and the veteran's assertions are consistent with his time and type of service. The Board also finds that the veteran had significant occupational exposure to asbestos following service. As noted above, in the April 2000 report from the Texas Occupational Medicine Institute, the veteran related having bystander exposure to asbestos between 1958 and 2001; in his June 2006 hearing, he stated that he was exposed to asbestos after 1958 while working as a ship builder and in construction. And, during the December 2006 VA examination, the veteran reported that he had worked in and around shipyards for most of his career, an occupation that is cited in the VA's Manual M21-1 as having high exposure to respirable asbestos. Notwithstanding the veteran's testimony that he was advised by a physician that his in-service asbestos exposure could have been a factor in his development of asbestosis, the record does not show a relationship between the veteran's current asbestos-related pleural disease and his asbestos exposure in service. The veteran is certainly competent to testify as to symptoms such as coughing and difficulty breathing which are non-medical in nature, however, he is not competent to render a medical diagnosis or nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). Consequently, the only medical evidence which speaks to the etiology of the veteran's respiratory disorder is the December 2006 VA examiner's opinion that the veteran's service exposure was less likely than post-service exposure and activities to be the cause of current disability. Service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Although the record indicates that the veteran was exposed to asbestos in service and now has asbestos-related pleural disease, the competent medical evidence shows that his condition was not caused by asbestos exposure during service. As for the veteran's statements, standing on their own, are not sufficient to establish a relationship between current disability and his service as per Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (Laypersons are not competent to offer medical opinions), the Board finds that the preponderance of the evidence is against the claim and service connection must be denied. ORDER Service connection for a respiratory condition, claimed as asbestosis, is denied. ____________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs