Citation Nr: 0834907 Decision Date: 10/10/08 Archive Date: 10/16/08 DOCKET NO. 06-06 442 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD) and pleural plaques, claimed as due to asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Cory L. Carlyle, Associate Counsel INTRODUCTION The veteran served on active duty from December 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the RO in St. Paul, Minnesota, which denied service connection for a lung disability, claimed as due to asbestos exposure. FINDINGS OF FACT 1. The veteran has two currently diagnosed lung disorders, pleural plaques and chronic obstructive pulmonary disorder (COPD). 2. The veteran's currently diagnosed pleural plaques are at least as likely as not to have resulted from asbestos exposure during service. 3. The veteran's currently diagnosed COPD is not the result of asbestos exposure during service or any other disease or injury in service. CONCLUSIONS OF LAW 1. The veteran's pleural plaques were caused by asbestos exposure and were incurred in service. 38 U.S.C. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. The veteran's COPD was not caused by asbestos exposure or otherwise incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.300, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folder, and has an obligation to provide reasons and bases supporting this decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. 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 claimant 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, 55-56 (1990). I. Veterans Claims Assistance Act (VCAA) A. Asbestos-Related Lung Condition Because the Board grants the veteran's claim for service connection for a lung condition as to pleural plaques related to asbestos exposure, the Board finds that any error related to the VCAA is moot as to that disability. See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). B. COPD The veteran also has a lung disability diagnosed as COPD, which the Board concludes is not related to service. 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. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). 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; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element in a claim of entitlement to service connection requires notice of the following five elements prior to the initial adjudication: (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. See Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006); see also 38 U.S.C. § 5103(a). Prior to initial adjudication of the veteran's claim, a letter dated in September 2004 gave the veteran both second- and third-element notice. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. That letter also gave the veteran notice of the first three parts of the first-element Dingess notice. There was no pre-adjudicative notice of parts four or five of the first-element Dingess notice. Failure to provide pre-adjudicative notice of any element is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007). The Secretary must show that this error was not prejudicial to the veteran, and can do so in three ways: by showing (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id. at 887; see also Mayfield, 19 Vet. App. 103, rev'd on other grounds, 444 F.3d 1328. In Sanders, the Federal Circuit recognized that this was not an exhaustive list of ways the Secretary could demonstrate lack of prejudice. Sanders, 487 F.3d at 889. For the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. Id. at 891; see also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007) (noting that the adjudication is also essentially fair if the lack of notice does not "render the claimant without a meaningful opportunity to participate effectively in the processing of his or her claim"). In this case, the failure to provide VCAA-compliant notice did not affect the essential fairness of this adjudication and was not prejudicial. The Board has concluded that the preponderance of the evidence is against the veteran's claim for service connection for a lung condition manifested by COPD. Thus, any questions as to the appropriate disability ratings or effective dates to be assigned are moot, and no further notice is needed. The Board may proceed with consideration of the claim on the merits. See generally Sanders, 487 F.3d 881; Dingess, 19 Vet. App. 473. In 2004, the Court held that VA must request that the claimant provide any evidence in his possession that pertains to the claim, in addition to the requirements of Quartuccio. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was rescinded by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. The Board also concludes VA has satisfied its duty to assist. See 38 C.F.R. § 5103A. The veteran's service medical records and VA medical records are in the file. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims that are not already associated with the file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 C.F.R. § 5103A(d). The veteran was afforded medical examinations in January and September 2005 to obtain opinions as to whether his condition can be directly attributed to service. Further examination or opinion is unnecessary because, at a minimum, there is no persuasive and competent evidence that the lung disability diagnosed as COPD may be associated with the veteran's military service. 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, 19 Vet. App. 103, rev'd on other grounds, 444 F.3d 1328. II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for a disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The veteran contends he should be service connected for a lung disability as a result of his asbestos exposure in service. It is noted that the veteran has been diagnosed as having both COPD and pleural plaques. The Board will first address the matter of whether COPD is related to service, to include asbestos exposure in service. Following a January 2005 VA compensation examination, to include spirometry, it was concluded that the veteran's obstructive lung disease (i.e. COPD) was secondary to smoking. It was noted that the veteran reported smoking a pack of cigarettes a day for 40 years, which would mean he started smoking a pack a day somewhat before his period of service began in December 1965. Service connection for disability based on a veteran's addiction to nicotine is prohibited on claims, such as the veteran's, filed after June 9, 1998. 38 U.S.C. § 1103 (West 2002); 38 C.F.R. § 3.300. There is no indication that the veteran's COPD was caused by anything other than his smoking, as the January 2005 VA examination clearly states. See 38 C.F.R. § 3.300(b)(1) (service connection possible in the face of disability resulting from use of tobacco products during service if the disability can be "otherwise shown" to have been incurred or aggravated during service). Also, the veteran's COPD is not shown to have appeared to the required degree of disability within any applicable presumptive period. See 38 C.F.R. § 3.300(b)(2). Thus, the Board concludes that service connection for COPD is not warranted. The Board notes that the veteran has also been diagnosed as having pleural plaques. Now, the Board will address whether such may be related to a disease or injury in service to include asbestos exposure. The Board notes that the veteran reports he was on a transport ship for 21 days where he slept in close proximity to pipes insulated in a material that sloughed off in a dust form as he slept. See id. The January 2005 examination states that the asbestos exposure could have occurred during service. The Board finds this satisfies the second element of Hickson, a showing of in-service incurrence. See Hickson, 12 Vet. App. at 253. There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA, however, has issued a circular on asbestos- related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular), which provides some guidelines for considering compensation claims based on exposure to asbestos. The DVB circular remains in the rating manual. See Adjudication Procedure Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 9. "Service Connection for Disabilities Resulting from Exposure to Asbestos" ("M21-1MR"); see also VAOPGCPREC 4- 00 (Apr. 13, 2000), summary available at 65 Fed. Reg. 33422- 02 (2000). Inhaling asbestos fibers can produce fibrosis and tumors. M21-1MR IV.ii.2.C.9.b. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The most common disease is interstitial pulmonary fibrosis (asbestosis). Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See id. The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and the development of disease. M21-1MR IV.ii.2.C.9.d. Disease- causing exposure to asbestos may be brief. M21-1MR, IV.ii.2.C.9.c.; see also M21-1, Part VI, § 7.21(b)(2) (as short as a month). The veteran's post-service history reflects possible asbestos exposure. The veteran kept a side job with a remodeling company, which consisted of cleaning up remodeled spaces, removing siding, sweeping floors, and cleaning bathrooms. The veteran did not know if he was exposed to asbestos during this work, though there are indications that this type of work involves asbestos exposure. See M21-1MR IV.ii.2.C.9.f. The veteran clearly presently suffers from some form of asbestos-related lung disease and, given the time the veteran spent in proximity to asbestos in service and given the VA examiner's opinion, it is at least as likely as not that the pleural plaques were caused by this exposure. See 38 U.S.C. § 5107(b); Hickson, 12 Vet. App. at 253; M21-1MR, IV.ii.2.C.9.c. Giving the veteran the benefit of the doubt, the claim for service connection for pleural plaques resulting from asbestos exposure is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Because the etiology of the veteran's COPD is his smoking, and nothing else, service connection is unavailable for that disability. See 38 C.F.R. § 3.300. ORDER Entitlement to service connection for pleural plaques is granted. Entitlement to service connection for COPD is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs