Citation Nr: 0838748 Decision Date: 11/10/08 Archive Date: 11/20/08 DOCKET NO. 06-00 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for pulmonary fibrosis, to include as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from July 1943 to February 1946 and from October 1950 to June 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim of entitlement to service connection for pulmonary fibrosis, to include as due to asbestos exposure. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). See 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical evidence of record does not support a finding that the veteran has pulmonary fibrosis that is related to military service, to include as due to asbestos exposure in service. CONCLUSION OF LAW Pulmonary fibrosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, a letter dated in April 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2008); Quartuccio, at 187. The Board notes that 38 C.F.R. § 3.159 was recently revised, effective as of May 30, 2008, and several portions of the revisions are pertinent to the claim at issue. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. Despite this change in the regulation, the April 2005 notice letter informed the veteran that it was ultimately his responsibility to give VA any evidence pertaining to the claim and to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. A notice letter dated in March 2006 informed the veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service treatment records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. In March 2006, VA requested the veteran submit the appropriate authorization and consent forms for Dr. Francis Dumont, a private physician. The veteran did not comply with this request. However, in April 2006, the veteran submitted a statement indicating he had no further evidence to submit. The Board notes that the duty to assist is not always a one-way street. If the veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The veteran was afforded a VA medical examination in July 2007 to obtain an opinion as to whether his respiratory condition could be directly attributed to service. Further examination or opinion is not needed on the claim because, at a minimum, there is no persuasive and competent evidence that the claimed condition may be associated with the veteran's military service. This is discussed in more detail below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claim The veteran alleges that he currently suffers from pulmonary fibrosis that is the result of asbestos exposure in service. Specifically, the veteran has alleged that he was exposed to asbestos when he slept under asbestos-wrapped pipes and through the use of asbestos gloves. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2008). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2008). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, 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. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. See VAOGCPPREC 04-00. "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty v. Brown, 4 Vet. App. 428, 429 (1993). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21- 1, Part VI, 7.21(c). The Board will first address the issue of current diagnosis. In support of his claim, the veteran has submitted a statement from his private physician, Francis E. Dumont, M.D. In this statement, Dr. Dumont notes that radiographs confirm a diagnosis of pulmonary fibrosis. See private medical statement, Francis E. Dumont, M.D., March 23, 2005. Unfortunately, as noted in the VCAA section above, the veteran failed to provide VA with the supplemental medical evidence necessary to confirm this diagnosis, either himself or by submitting authorization forms to VA to act on his behalf. See Wood, supra. Without this evidence, the diagnosis of pulmonary fibrosis cannot be confirmed. This evidence is required, particularly in light of the diagnosis provided by the VA examination report in July 2007. The July 2007 VA examination report concluded that there was no objective evidence to support a diagnosis of pulmonary fibrosis. Specifically, the computed tomography (CT) scan performed in conjunction with the VA examination revealed no evidence of interstitial lung disease, asbestos pleural plaque or asbestosis. Mild air trapping was consistent with small airways disease. Additionally, pulmonary function testing showed no demonstrable obstructive defect. The flow volume was normal though lung volumes showed a mild restrictive defect and diffusing capacity was moderately decreased. See VA examination report, July 19, 2007. In order to be considered for service connection, a claimant must first have a disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In the absence of diagnosed pulmonary fibrosis, service connection may not be granted. See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Though it is clear the veteran does not have a verified diagnosis of pulmonary fibrosis, for the sake of argument, the Board will address the remaining elements necessary to substantiate a claim under Hickson. Regarding the veteran's alleged exposure to asbestos in service, review of the veteran's service personnel records indicates that while his military occupational specialty was a Gunner's Mate, the majority of his time in service was spent as an armed guard. There is no evidence of record to substantiate the veteran's claim that he used asbestos gloves or that he was exposed to asbestos by sleeping under pipes. The veteran's service treatment records do indicate he complained of occasional shortness of breath in October 1950; however, X-rays of the chest and lungs in June 1951 were completely negative. No other complaints were noted. Thus, the veteran's claim does not meet element (2) under Hickson. Regarding the question of medical nexus, the Board finds that again the veteran's claim fails. While the veteran relies upon the 2005 statement of Dr. Dumont, indicating that the veteran's prior exposure to asbestos as a Gunner's Mate, using asbestos gloves and asbestos shields contributed to his current lung condition, there is no verified diagnosis of pulmonary fibrosis. Additionally, as indicated by the lack of in-service medical or personnel evidence noted above, it is clear that Dr. Dumont is merely repeating history provided by the veteran regarding his asbestos exposure. In Black v. Brown, 5 Vet. App. 177, 180 (1993), the Court stated that the Board may discount medical opinions that amount to general conclusions based on history furnished by the veteran and that are unsupported by the clinical evidence. The Board also observes that the Court has held that medical opinions, which are speculative, general or inconclusive in nature, cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). As such, the Board does not find Dr. Dumont's statement to be credible, supported or persuasive. The only remaining evidence in support of the veteran's claim are lay statements alleging that his current lung disability is related to asbestos exposure. The Board acknowledges that the veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his lung disability. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In the present case, the Board finds the July 2007 VA examination report to be the most persuasive. As noted above, the veteran was not diagnosed with pulmonary fibrosis. The high resolution CT scan performed in conjunction with the examination revealed no CT evidence of interstitial lung disease, pulmonary fibrosis, asbestos pleural plaque or asbestosis. The examiner opined that asbestosis is defined as parenchymal fibrosis with or without pleural thickening associated with dyspnea, bibasilar rales and pulmonary function changes. In order to be diagnosed with this disorder, one must determine the presence of pulmonary fibrosis and determine whether the exposure has occurred of duration and intensity sufficient to put the person at risk. According to his service records, the veteran was an armed guard on several vessels during his time in service and was a Gunner's Mate during his second period of service. Service records indicate the asbestos exposure in the veteran's positions was minimal. Based on the evidence from the CT scan and the pulmonary function testing, the veteran was considered less than likely to have pulmonary fibrosis, therefore asbestos exposure was considered less than likely the cause of his current lung condition. See VA examination report, July 19, 2008. The evidence of record does not support a finding that the veteran has a verified diagnosis of pulmonary fibrosis, nor is any current lung condition related to asbestos exposure or to service in general. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The veteran has failed to provide a verifiable medical diagnosis of pulmonary fibrosis. There is no evidence of asbestos exposure in service, nor were there chronic complaints of lung disorders during service. Finally, there is no credible medical nexus of record that connects any current lung disorder with the veteran's time in service. As such, the veteran's claim fails on all three elements under Hickson. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. ORDER Entitlement to service connection for pulmonary fibrosis, to include as due to in-service asbestos exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs