Citation Nr: 0837275 Decision Date: 10/29/08 Archive Date: 11/05/08 DOCKET NO. 03-36 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from July 1979 to July 1983 and from February 1984 to February 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The veteran's case was subsequently transferred to the jurisdiction of the above RO. In March 2005, the veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. In August 2005, the Board remanded this case for additional evidentiary development. In September 2006, the Board issued a decision which denied service connection for asbestosis. The veteran filed an appeal with the U.S. Court of Appeals for Veterans Claims (Court). In May 2008, the parties (VA and the veteran) filed a Joint Motion for Remand. By Order dated in May 2008, the Court granted the Joint Motion for Remand, vacating the Board's September 2006 decision and remanding the matter to the Board for compliance with the instructions in the Motion. FINDING OF FACT The competent and probative medical evidence of record preponderates against a finding that the veteran has a current diagnosis of asbestosis which is related to his exposure to asbestos in service. CONCLUSION OF LAW Asbestosis was neither incurred in nor aggravated by the veteran's active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's two-volume 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 extensive evidence submitted by the veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The veteran must not assume that the Board has has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. granted (U.S. June 16, 2008) (No. 07-1209). In this case, the VCAA duty to notify was satisfied by way of letters sent to the veteran in August 2001, August 2005, and January 2006 that fully addressed the notice elements. One of the letters was sent prior to the initial RO decision in this matter. These letters informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Although no longer required, in the August 2005 letter, the veteran was asked to submit any pertinent evidence and/or information in his possession to the RO. Finally, the Board notes that in the April 2006 SSOC the veteran was informed of how disability ratings and effective dates are assigned. See Dingess, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders, supra. Thus, the Board concludes that all required notice has been given to the veteran. The Board also finds VA has satisfied its duty to assist the veteran in the development of the claim. The RO has obtained the veteran's VA and private treatment records, and two VA examinations were conducted. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. With regard to records from the Social Security Administration (SSA), the Board notes that in the Joint Motion for Remand, the parties agreed that, on remand, the veteran "may argue that the [sic] VA, under its duty to assist, needs to obtain [his] Social Security Administration (SSA) [r]ecords." It was further noted that VA "should address its attempts to satisfy its duty to assist and determine whether [the veteran's] SSA records should be obtained, or otherwise accounted for, in this case". In that regard, the Board notes that the Court has held VA has a duty to assist in gathering SSA records when VA has actual notice that the veteran is receiving SSA benefits. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Masors v. Derwinski, 2 Vet.App. 180 (1992). In this case, however, the Board concludes that VA has not been put on notice that the veteran has actually applied for, or is receiving, SSA benefits in conjunction with his pulmonary problems, and, therefore, VA's duty to assist the veteran by obtaining such records does not arise. In that regard, the Board notes that while there are VA and private treatment records indicating that the veteran was unable to work at least for some periods of time (primarily due to a cardiac problem which is not here in issue), there is nothing in the record which puts VA on notice that the veteran may be receiving SSA benefits. In his June 2001 formal claim for service connection, the veteran checked off "no" in response to the question of whether he or his spouse "applied for or are receiving or entitled to receive any benefits" from SSA. In a July 2003 private treatment record it was noted that the veteran had become a long distance tractor/trailer driver several months prior. An October 2003 VA treatment record showed he was unable to work until he had a surgical replacement of aortic valve. In a December 2003 letter to his congressional representative, the veteran claimed he had been "denied twice by Social Security for disability". A February 2004 VA treatment record noted that the veteran felt stronger and might be able to return to work in four weeks as a truck driver. A VA treatment record dated in April 2005 showed that the veteran had forms he wanted filled out for SSA disability. Arguably, VA is aware that the veteran has applied for SSA benefits on two occasions and was denied, and as recently as April 2005 the veteran intended to apply for SSA disability benefits. The Board finds, however, that despite the aforementioned records, at no time has VA been put on actual notice that the veteran may be receiving SSA benefits. In his January 2008 Brief filed with the Court by his attorney, the veteran claimed that the Board "failed to ensure that . . . VA fulfilled its duty to assist in inquiring as to whether the veteran was currently receiving Social Security benefits and then requesting the veteran's [SSA] records". The veteran claimed that the evidence of record indicated that he "may be receiving SSA benefits", and therefore, "VA was under a duty to request those records before adjudicating" the claim. The Board notes that, pursuant to the duty to assist, VA shall make reasonable efforts to obtain relevant records that the claim adequately identifies and shall make as many requests as are necessary to obtain relevant records from a Federal department or agency, to specifically include records from SSA. 38 U.S.C.A. § 5103A (b); 38 C.F.R. § 3.159 (c)(2). The Court has stated, however, that VA's "duty to assist is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support the claim." Gober v. Derwinski, 2 Vet. App. 470, 477 (1992). A review of the record shows that at no time has the veteran or his representative indicated that he is receiving SSA disability benefits related to a pulmonary disability. Even after the Court granted the Joint Motion in May 2008 (thereby affording the veteran the opportunity he had requested to argue that VA needs to obtain his SSA records) and the July 2008 letter from the Board, which notified the veteran and his attorney that he had an additional 90 days to submit any additional argument or evidence, the veteran has yet to put VA on notice that he is receiving any SSA benefits. In September 2008, the veteran's attorney responded to the Board's letter, but no mention was made as to whether the veteran may be receiving any SSA benefits. It is unclear to the Board whether the veteran and his attorney were hinting at the notion that the veteran receives SSA disability (as neither the veteran nor his attorney has used affirmative language to indicate whether he receives any such benefits). However, VA's duty to assist does not require that the Board attempt to decipher any such notion. In this regard, the Board notes that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the Board also notes that the indications in the record that the veteran was unable to work have been related to his cardiac problems, rather than to any pulmonary or respiratory problems. The Board concludes that VA has substantially complied with the aforementioned notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Therefore, 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), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background The veteran's service treatment records (STRs) are negative for any treatment for, or diagnosis of, a pulmonary disorder. His service personnel records show that he had service aboard the aircraft carrier USS America. In a November 2001 response to an RO inquiry, the National Personnel Records Center (NPRC) indicated that it had no way of determining to what extent the veteran was exposed to asbestos during his Naval service. It was noted to be highly probable that asbestos was used during that time period to cover heated surfaces. The NPRC further noted that the veteran's occupation was as an Aviation Support Equipment Technician, and the probability of exposure to asbestos was minimal. However, the NPRC concluded that a positive statement that the veteran was or was not exposed could not be made. In a March 2001 examination record, I.S., M.D., indicated that the veteran reported a cough, productive of brownish phlegm and chest congestion, headaches, and decreased energy for three years. He believed it might be due to asbestos exposure in service. He reported he spent two years daily in dry dock, tearing out asbestos with minimal protection. He claimed he worked with asbestos again during his second period of service. He reported post-service exposure to asbestos for one year when he worked for the railroad as a painter of boxcars. On examination, chest X-rays were obtained. Dr. S noted that there were small irregular opacities in the bases more than the apices, and they corresponded with the standard film. A pulmonary function study revealed a small airway spasm and chronic hypoventilation with mild hypoxemia, but good maintenance of saturation. It was Dr. S's impression that the veteran had asbestosis of a significant profusion. The record reflects that a duplicate copy of Dr. S's March 2001 report has been associated with the claims file. In September 2003, the veteran sent a letter to his Congressional representative, requesting help with his appeal. Attached to that letter was a duplicate copy of Dr. S's March 2001 letter; however, on that copy it appears that Dr. S. handwrote at the end "asbestosis to a significant profusion caused by exposure during service in the US Navy", and then signed her name again. A June 2001 VA chest X-ray and outpatient report showed that the veteran's lung fields were clear. In an October 2001 written statement, H.L., M.D., indicated that he had not seen the veteran for several years, but that at the time he had treated the veteran, he had rather severe pulmonary fibrosis. On a VA examination in May 2002, the veteran reported exposure to asbestos during the six years he was in the Navy, and indicated he was only issued a paper mask for protection. He then reported a gradual onset of shortness of breath beginning in the early 1990s. On examination, he had normal vesicular breath sounds without any sign of adventitious sounds. There were no rales, rhonchi, wheezes, or pleural friction rubs. The examiner referred to an August 2001 pulmonary function test that revealed mild restrictive defect, a mild decrease in lung volume, and a normal diffusion. A September 2001 pulmonary function test revealed similar results. A May 2002 X-ray was reported to show that the lung fields were free of infiltration and revealed no pleural calcification. The diagnoses were that he most likely had a mild pulmonary ventilatory defect, currently of uncertain etiology. The VA examiner in 2002 further indicated the association between the veteran's mild pulmonary ventilatory defect and his reported history of exposure to asbestos in service was open to speculation, noting that the veteran's military records were not available to confirm exposure to asbestos in service. It was noted that the mild decrease in the veteran's lung volumes per pulmonary function test in August 2001 was of the type seen frequently in cases of pulmonary asbestosis. However, the chest film in May 2002 failed to disclose any radiological sign of pulmonary asbestosis such as linear opacities, pleural thickening, diffuse pleural fibrosis, or any degree of pleural effusion from migration of asbestos dust, which would confirm the association of the veteran's mild restrictive defect and a diagnosis of pulmonary asbestosis. In a July 2003 treatment record, Dr. S indicated that her impression was that the veteran had dyspnea on mild exertion. In a handwritten note at the bottom of the treatment record, she indicated that the veteran was "known to have" asbestosis caused by exposure during service in the Navy. In a December 2003 letter, Dr. S indicated she had diagnosed the veteran with asbestos in his lung in March 2001, and that the diagnosis was made on the basis of the veteran's service in the Navy "from 1979 to 1983 as an ordinance man, but most of the time [he was] in dry dock tearing out asbestos for at least a full two years". She detailed the veteran's exposure to asbestos in service, and noted that after service he had no further exposure to asbestos. Dr. S noted that March 2001 X-ray reports (performed in her office) showed small irregular opacities throughout the lungs, especially in the bases, and that she interpreted this as asbestosis. Dr. S believed the veteran's heart disease confounded the chest X-ray, and the diagnosis was no longer clear due to his heart failure. In a May 2005 treatment record, Dr. L noted that the veteran was seen for follow-up due to excessive snoring at night and daytime somnolence. The diagnoses included probable asbestosis, obstructive sleep apnea, and status post aortic valve replacement. Dr. L noted that the veteran reported he was exposed to asbestos from 1979 to 1980 while in the Navy aboard the USS American Independence and the USS John F. Kennedy. A CT of the chest reportedly revealed posterior lateral pleural thickening without calcification which "could be" related to prior asbestos exposure. The assessment was asbestos exposure with probable asbestosis. Dr. L noted that the veteran needed another CT of the chest to further evaluate the pleural thickening that was found. On the VA examination report dated in February 2006, the VA examiner noted a thorough review of the veteran's claims file, including his STRs and private physicians' statements. The veteran reported a cough and shortness of breath and that he had been treated with oxygen in the past. It was noted that he had developed severe aortic valvular disease and an ascending aortic aneurysm of the aortic arch, and also had aortic valvular insufficiency, hypertension, a history of palpitations, headaches, obesity, and occasional episodes of muscle spasm. In December 2003, he had had surgery related to his aortic valvular disease. The examiner noted that it appeared the veteran's private physicians never had access to his claims file, and that any opinions offered were based on the veteran's statements regarding his military service. With regard to Dr. S, the VA examiner noted that she took one series of X-rays in March 2001, which she evaluated, but that Dr. S noted that the diagnosis was now unclear because of the veteran's heart failure. The examiner found it significant that, although Dr. S. performed a limited pulmonary function test, she did not appear to evaluate a DLCO test (which measures the capacity of diffusion in the lung for carbon monoxide), which would be an important measure in discussing any type of asbestos-related lung disorder. The VA examiner noted that asbestosis is not only a restrictive lung disease, but has some elements of obstructive lung disease, which would be measured on a test of DLCO. The VA examiner also noted that, although Dr. S. believed that the veteran had two years of exposure to asbestos in service, the veteran's own report given on VA examination was contrary to Dr. S's impression, indicating that he was only exposed for three or four months during the year 1979, and emphasizing he had been on temporary duty. The VA examiner then addressed the statements of Dr. L, noting that it was not apparent that Dr. L had ever reviewed the records in the claims file. The examiner noted that Dr. L's diagnosis was probable asbestosis, and that the asbestos exposure referred to by Dr. L came only from information provided by the veteran. It was noted that Dr. L found that an X-ray showed posterior lateral pleural thickening without calcifications, which could be related to asbestos exposure. The VA examiner indicated there are many causes of pleural thickening, and asbestosis is only one of them, and that without calcification, it makes asbestosis markedly less likely. The examiner opined that the diagnosis of probable asbestosis was based only on the veteran's personal account of exposure in service, and on a CT scan which the examiner characterized as being nondiagnostic. The VA examiner then returned to the written statement of Dr. S, in which she indicated that chest X-rays showed small irregular opacities in the bases more than the apices, and that a pulmonary function test showed a small airway spasm and chronic hypoventilation with mild hypoxemia, but good maintenance of saturation. It was noted that Dr. S's final impression was that the veteran had asbestosis of a significant profusion. The VA examiner noted there were numerous X-rays in the VA medical records, and they showed consistently that there had been no other findings by other individuals which had the finding of profuse calcific or other nodular densities associated with the type of picture that Dr. S said she saw. On physical examination in 2006, it was noted that the veteran had some type of restrictive disease. However, X- rays showed no shaggy borders, calcium, or streaking abnormalities. The VA examiner noted the previous discussion in the claims file regarding non-calcific asbestos fibers. However, it was noted that the vast majority of people with asbestosis are found to present with standard X-ray findings of calcific densities, which this veteran does not have. The examiner noted the veteran's cough, shortness of breath, and clinical picture of pulmonary fibrosis, and indicated that the latter, combined with his heart disorders, had resulted in the lungs being under more pressure, eventually resulting in primary lung damage. Recent pulmonary function tests were noted to have shown mild restrictive ventilatory defect, which resulted in mildly reduced lung capacity, and that diffusing capacity results (DLCO) were normal. The VA examiner concluded that the veteran was not having significant fibrosis and lung damage from his restrictive lung disease, and certainly not from asbestos or any other cause of major difficulties in his lungs. The VA examiner in 2006 further observed that there had been numerous chest X-rays performed throughout the veteran's medical history. At no point did the VA examiner find a chest X-ray or a CT scan which noted any more serious evidence towards the presence of asbestos fibers, or disease secondary to asbestos in any form that was classically felt to be radiographically associated with asbestos disease. The examiner noted that, on only one occasion, when a 2001 film was done in Dr. S's office, was there a report of small nodular densities suspicious of asbestos. Dr. L made the diagnosis of "probable or suspicious" for asbestos exposure, but he did not make a firm diagnosis of asbestosis. The examiner noted that when re-questioned later, Dr. L diagnosed pulmonary fibrosis, with no etiology given. (The Board notes that the VA examiner apparently confused the dates of the records from Dr. L. In 2001, Dr. L diagnosed pulmonary fibrosis, and later, in 2005, he diagnosed probable asbestosis.) The VA examiner in 2006 concluded that there was no evidence radiographically, physically, or on pulmonary function studies to suggest the firm diagnosis of asbestos or asbestos-related lung disease. Any significant lung disorder suffered by the veteran was thought to be related to long- standing hypertension, causing left-side heart disease. While the examiner could not state with certainty which heart diagnosis contributed to his pulmonary disorder, the examiner indicated it was unlikely that any significant effects of lung disease were in any way related to the possibility that he was exposed to asbestos in the military or otherwise. The examiner did not feel that the veteran had asbestos-related lung disease, and commented that the mild restrictive lung disease with a normal diffusing capacity was trivial in comparison with the cardiac disease he suffered. Further, there was found to be no strong evidence that a significant part of the veteran's primary lung disease was related to asbestos, nor was there found to be evidence that the veteran has any radiographic evidence of asbestosis at a level of 50 percent or greater possibility. Therefore, the diagnosis was that it is unlikely, or not as likely as not, that the veteran has asbestosis secondary to exposure to asbestos, and an ensuing lung disorder due to asbestos. In the May 2008 Joint Motion for Remand, the parties to the litigation indicated that the Board's decision in September 2006, in reference to the records provided by Dr. L, was not supported by the record, noting that in May 2005, Dr. L did diagnosis the veteran with "probable asbestosis" and stated that "he was exposed to asbestosis [sic] while in the Navy". The parties agreed that the Board did not provide an adequate statement of reasons or bases as to why it found the 2006 VA examination opinion more probative than the May 2005 opinion by Dr. L. The parties also stated that the Board should address whether the veteran is entitled to service connection for asbestosis under Kowalski v. Nicholson, 19 Vet. App. 171 (2005), and that the Board should consider whether the veteran's statements are sufficient to warrant service connection, when considered with the rest of the evidence. Finally, the parties agreed that the veteran "may argue" that VA, pursuant to the duty to assist, needs to obtain his SSA records. VA was directed to address the attempts to satisfy the duty to assist and determine whether the veteran's SSA records should be obtained or otherwise accounted for in this case. III. Analysis A. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303(a) (2008). The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos- related diseases which 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, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). Those guidelines provided, 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 noted 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 was the report that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See DVA, VBA, 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. The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." 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); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. B. Discussion The veteran contends he has asbestosis as a result of being exposed to asbestos in service. He claims that while serving aboard the aircraft carrier USS America, he was involved in tearing asbestos out of different compartments on the ship. As noted above, 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. In that regard, the Board notes that service personnel records do show that the veteran served aboard the USS America. The NPRC has indicated there is no way of determining to what extent he was exposed to asbestos during his Naval service, but that his occupation in service was as an Aviation Support Equipment Technician and that the probability of exposure to asbestos was "minimal". Because the veteran is capable of reporting that he was involved in tearing out asbestos or an asbestos-like substance in service, and because the NPRC indicated that there was at least a minimal probability that the veteran was exposed to asbestos in service, the Board concedes that it is possible the veteran was indeed exposed to asbestos during service. Thus, for the purposes of this decision, the Board will proceed with the notation that the veteran's exposure to asbestos in service has been conceded. Even after conceding the veteran's exposure to asbestos in service, however, the Board concludes that the preponderance of the competent evidence of record does not show veteran has asbestosis or any asbestos-related lung disease. See Kowalski, supra. While the veteran appears to have a pulmonary disorder, the diagnosis of asbestosis is in question, as there has not been a definitive diagnosis of asbestosis. The threshold requirement for service connection is competent medical evidence of the current existence of the claimed disorder. Degmetich v. Brown, 104 F.3d 1328 (1997). In that regard, the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even though the disability subsequently resolves and the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence of record fails to support a diagnosis of asbestosis, that holding would not be applicable. The Board notes that there are several opinions of record regarding the veteran's pulmonary diagnosis. Where the record contains both positive and negative evidence, it is the responsibility of the Board to weigh the credibility and probative value of the medical opinions, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. 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 is mindful that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 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). With specific regard to the opinions and treatment records of Dr. S and Dr. L, the Board further notes that, although the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In determining which opinions to rely upon, the Board notes that we find the opinion of the February 2006 VA examiner the most compelling and persuasive. Specifically, the VA examination report is extremely thorough, and the examiner indicated that he reviewed every page of the veteran's claims file, including the opinions and treatment records from Dr. S and Dr. L. There is no indication that such a thorough review was undertaken by either of those other physicians. With regard to the opinion of Dr. L, the Board notes that he initially (in October 2001) diagnosed only severe pulmonary fibrosis, and in a later treatment record (dated in May 2005) he noted that the veteran reported he was exposed to asbestos in service and indicated that a CT of the chest revealed posterior lateral pleural thickening without calcification which "could be" related to prior asbestos exposure. Dr. L's final assessment was asbestos exposure with probable asbestosis, but Dr. L. noted that the veteran needed another CT of the chest to further evaluate the pleural thickening that was found. The Board finds that Dr. L's opinion is not definitive, and was made in equivocal terms such as "could be" and "probable". The use of such terms as in this case, makes a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative). Therefore, the Board finds the above opinion by Dr. L to be of low probative value due to its speculative nature and the acknowledgement by Dr. L that the veteran needed another CT of the chest to further evaluate the plural thickening found. See also 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility). Therefore, the Board concludes that Dr. L does not provide a definitive diagnosis of asbestosis. As for Dr. S's written statements and treatment records, we note first that she indicated in her opinions that the veteran was exposed to asbestos in service for two years. At the very least, this is inconsistent with the veteran's statements to the February 2006 VA examiner, in which he indicated that he worked on the ship and was possibly exposed to asbestos for two or three months. However, as noted above, the Board has conceded, for the purpose of the present decision, the veteran's exposure to asbestos; therefore, any such inconsistencies will not be further discussed. The Board notes that the March 2001 treatment record from Dr. S indicates that the veteran had "asbestosis of a significant profusion". However, there is no indication in the treatment record that Dr. S arrived at this conclusion based on anything (i.e., clinical findings) other than the veteran's reported exposure to asbestos in service. While the veteran's exposure to asbestos in service has been conceded, the Board notes that Dr. S did not explain how she arrived at the diagnosis of asbestosis based upon the physical examination or the X-ray report or the pulmonary function study. Dr. S reported that a 4-view chest film was made in her office that day and it showed "small irregular opacities in the bases more than the apices and these corresponded with the standard film t/t in a profusion of l/l". In a duplicate March 2001 record, Dr. S handwrote at the end "asbestosis to a significant profusion caused by exposure during service in the US Navy", and then signed her name again. Again, there was no further rationale provided as to the clinical findings that supported such a diagnosis. In December 2003, Dr. S indicated that the March 2001 X-ray reports (performed in her office) showed small irregular opacities throughout the lungs, especially in the bases, and that she interpreted this as asbestosis, but Dr. S also believed the veteran's heart disease confounded the chest X- ray, and the diagnosis was no longer clear due to the veteran's heart failure. Dr. S did, however, emphasize that this should not take away from the previous diagnosis. The Board notes that, subsequent to Dr. S's opinions, a June 2001 VA chest X-ray showed that the veteran's lung fields were clear. And on a VA examination in 2002, the diagnosis was "most likely pulmonary ventilatory defect currently of uncertain etiology". While the VA examiner noted that an association between the veteran's mild pulmonary ventilatory defect and his reported history of exposure to asbestos in service was "open to speculation" because service medical records were not available to confirm exposure to asbestos in service, the Board notes that this was not the only basis on which the VA examiner formed his opinion. The examiner noted that pulmonary function tests in August and September 2001 revealed a mild restrictive defect, a mild decrease in lung volumes, but a normal diffusion, which the examiner found to be of the type seen frequently in cases of pulmonary asbestosis. The examiner also noted that the May 2002 X-ray which showed lung fields free of infiltration and no plural calcification, failed to show any sign of pulmonary asbestosis. The Board notes, however, that the VA examiner's opinion appears to include only a review of some VA treatment records, and did not include a review of any of the private physician's records. The VA examination report of February 2006, however, did include a thorough review of the claims file, to specifically include the records from Dr. L and Dr. S. In comparing and weighing Dr. L's opinion and Dr. S's opinion with the VA examiner's report of February 2006, however, the Board must find the VA examination report more persuasive and probative, based upon the examiner's review of the entire claims file and the explanations given with regard to the other opinions of record. The VA examiner in 2006 indicated he saw no evidence radiographically, physically, or on pulmonary function studies to suggest a firm diagnosis of asbestos or asbestos-related lung disease. The examiner further indicated that any significant lung disorder the veteran had was related primarily to his cardiac problems, which were detailed by the VA examiner. With regard to Dr. L's opinion, the VA examiner in 2006 noted that Dr. L found a CT scan to show postural lateral pleural thickening without calcifications. The VA examiner indicated that there were many causes of pleural thickening, with asbestosis being only one of the causes, and that without calcification, asbestosis was markedly less likely, and found the CT scan to be "absolutely non-diagnostic". With regard to Dr. S's opinion, while part of the 2006 VA examiner's opinion took issue with Dr. S's reliance on the veteran's account of exposure to asbestos in service, as indicated above, that issue is now moot, as the Board has, for purposes of this matter, conceded the veteran's exposure to asbestos in service. The VA examiner also, however, noted the findings Dr. S made as a result of the chest X-ray in March 2001, and indicated that the numerous prior X-rays, "available on the VA computer system under CPRS" show there had been no other findings of "profuse calcific or other nodular densities". The VA examiner also noted that no other X-rays (other than the one taken by Dr. S) showed "any sort of nodules, spots, or other related evidence of what she made her diagnosis of asbestosis on". With regard to pulmonary function testing, the VA examiner in 2006, noted that Dr. S. performed a limited pulmonary function test, and did not appear to evaluate a DLCO test (which measures the capacity of diffusion in the lung for carbon monoxide). The examiner indicated the DLCO test would be an important measure in discussing any type of asbestos- related lung disorder, noting that asbestosis is not only a restrictive lung disease, but has some elements of obstructive lung disease, which would be measured on a test of DLCO. To that end, the VA examiner noted that recent pulmonary function tests for the veteran showed mild restrictive ventilatory defect, which resulted in mildly reduced lung capacity, and DLCO results were normal. In conclusion, after weighing the VA examiner's opinion with Dr. S's opinion, the Board finds the VA examiner's opinion in 2006 to be more probative and persuasive. The VA examiner in 2006 specifically addressed the pertinent portions of Dr. S's opinion on which she based her diagnosis of asbestosis. Moreover, the VA examiner performed a physical examination in 2006, and noted that while the veteran has some type of restrictive disease, the findings on X-rays and pulmonary function testing did not result in a diagnosis of asbestosis. The examiner noted the veteran's cough, shortness of breath, and clinical picture of pulmonary fibrosis, and indicated that that, combined with his heart disorders, had resulted in the lungs being under more pressure, eventually resulting in primary lung damage. In conclusion, the VA examiner opined that it was unlikely that the veteran had asbestosis secondary to exposure to asbestos or an ensuing lung disorder due to asbestos. In the Joint Motion for Remand, the parties agreed the Board should address whether the veteran is entitled to service connection for asbestosis under Kowalski, supra, and consider whether the veteran's statements are sufficient to warrant service connection, when considered with the rest of the evidence. In that regard, the Board notes that, although the veteran's exposure to asbestos in service has been conceded, for reasons more fully explained above, the preponderance of the evidence does not show that the veteran has a diagnosis of asbestosis or other asbestos-related lung disorder, related to his asbestos exposure in service. Although one private physician, Dr. S, provided a diagnosis of asbestosis related to asbestos exposure in service, the Board found that this opinion was less persuasive than the VA examiner's 2006 opinion. Thus, considering the veteran's statements with the rest of the evidence of record and the Court's holding in Kowalski, the Board concludes that service connection is not warranted for asbestosis. The Board recognizes the veteran's honorable service to the Nation, and acknowledges his sincere belief that his current pulmonary disorder is asbestosis and is the result of asbestos exposure in service. We also appreciate the advocacy by his attorney in this matter. The veteran's lay statements are certainly competent to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau, supra; Buchanan, supra. Here, the veteran is competent to report being exposed to asbestos or asbestos-like substances in service, and to his subsequent respiratory symptoms. However, the Board does not believe that asbestosis, as contrasted with reported exposure to asbestos and/or respiratory symptoms, is subject to lay diagnosis. That is to say, the Board finds no basis for concluding that a lay person would be capable of discerning whether he had asbestosis, in the absence of specialized training. In this matter, the veteran has not established any specialized training for such qualifications. Consequently, the Board concludes that there is not an approximate balance of evidence in this case, for the reasons more fully explained above. Thus, as the evidence preponderates against the claim for service connection for asbestosis, the benefit-of-the-doubt doctrine is inapplicable, and the claim for service connection for asbestosis must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for asbestosis is denied. _______________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs