Citation Nr: 0903612 Decision Date: 02/03/09 Archive Date: 02/12/09 DOCKET NO. 05-15 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lung disorder claimed as due to exposure to asbestos. 2. Whether new and material evidence has been presented reopen a claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from January 1982 to May 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The veteran testified at a hearing held before the undersigned Veterans Law Judge at the RO in May 2008. At the hearing, the veteran's representative indicated that the veteran declined to waive his right to have the RO review additional evidence which had been presented in April 2008. Subsequently, however, in August 2008 the same representative submitted a written statement along with additional items of evidence. In the statement, the representative indicated that "On behalf of the veteran we hereby waive local consideration and jurisdiction on the listed evidence and request that the instant appeal be immediately forwarded to the Board of Veterans Appeals (BVA)/Appeals Management Center (AMC) for appellate action." The Board interprets this waiver of the right to have the RO review additional evidence as applying not only to the evidence submitted with the August 2008 waiver, but also to all over evidence submitted since the most recent supplemental statement of the case, including the evidence presented in April 2008. In this regard, the Board notes that it would not have made sense for the representative to do a partial waiver, as this would not have resulted in a quicker resolution of the claim. Moreover, the representative's request that the case be immediately forwarded to the Board is inconsistent with a position that the veteran and the representative still desired to have the RO review any of the evidence which had been presented previously. Accordingly, the Board concludes that the appeal may be reviewed without the delay which would be necessitated by first remanding for further action by the RO. FINDINGS OF FACT 1. The probative evidence of record shows no nexus between any asbestos exposure in service and a current respiratory disability. 2. The RO denied service connection for PTSD in July 1995 on the basis that the veteran had failed to provide proof of a stressor. The veteran was notified in writing of the decision, but he did not initiate an appeal within one year of notification. The RO confirmed that decision in November 1998, and the veteran again did not initiate an appeal. 3. The additional evidence presented since November 1998 is cumulative and redundant, and does not raise a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSIONS OF LAW 1. Service connection for a lung disorder, to include as secondary to asbestos exposure is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2008). 2. The July 1995 and November 1998 decisions by the RO that denied entitlement to service connection for PTSD are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2008). 3. New and material evidence has not been presented to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I Entitlement To Service Connection For A Lung Disorder Claimed As Due To Exposure To asbestos. Service connection may be granted for disability because of a disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, 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, the following must be present: medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and 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 Board notes that there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations for these types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (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 the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols. See 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. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Veteran's Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the claim-development procedures). With these claims, the RO 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, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(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. However, in the case of 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. VA O.G.C. Prec. Op. No. 04-00. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). In a written statement dated in February 2004, the veteran reported asbestos exposure due to the asbestos pipe linings on the ship he was on in 1983 and 1984. He also reported that he was again exposed while working in a shipyard in service. According to the veteran's form DD-214 and service records, the veteran's military occupational specialty in the Navy was Seaman. It was noted that his military education had included courses in being a Fireman, General Damage Control, and Small Boat Repair. In the testimony which he presented in May 2008, he stated that there was asbestos on the ship he was assigned because it was built in the 1960's. He reported doing work such as taking off exhaust manifold pipes that had asbestos on them. For the sake of analyzing the veteran's claim, the Board will accept the contention that the veteran was exposed to asbestos while in service. Service medical records are negative for any complaints, findings, or diagnosis of a disability due to asbestos exposure. The Report of Medical History given for the purpose of separation in May 1984 reflects that the veteran denied having shortness of breath, pain or pressure in the chest, or a chronic cough. The Report of Medical Examination given at that time reflects that the veteran's lungs and chest were normal. The Board notes that the post service evidence of record contains treatment records pertaining to respiratory problems. For example, a VA treatment record dated in November 2003 reflects that the veteran had a history of smoking half a pack of tobacco a day. Following examination, the assessment was chronic obstructive pulmonary disease. The veteran was instructed to stop smoking. He stated that he did not wish to attend a smoking cessation clinic. There was no mention of asbestos. Similarly, another VA treatment record dated in November 2003 reflects that the veteran complained of right upper quadrant pain. He reported that he had been told five to six days earlier that he might have pneumonia, and had been placed on antibiotics. He reported smoking half a pack a day of cigarettes for at least 20 to 30 years. A VA record dated in December 2003 indicates that the veteran had a diagnosis of mild chronic obstructive disease due to smoking. The records do not contain any mention of asbestos. A VA treatment record dated in December 2003 noted that a CT scan had shown a nodule in the right middle lobe. It was noted that the veteran was a smoker, and had given a history of asbestos exposure. The treating physician concluded that in light of this, they needed to rule out malignancy. A VA treatment record dated in January 2004 reflects that a bronchoscopy had been performed and the bronchoalveolar lavage and bronchial brushings were negative for malignancy. A VA treatment record dated in April 2004 reflects that further diagnostic procedures gave results that were consistent with fungal microorganisms consistent with histoplasmosis. The treating physician noted that the veteran had a history of working in Kentucky, Tennessee and Missouri moving old log cabins, and this required a lot of digging in the dirt. After reviewing the medical evidence, the Board notes that treating physicians have attributed the veteran's lung problems to smoking and to histoplasmosis infection, but no competent medical evidence has been presented linking a current lung disorder to any possible asbestos exposure during service. The fact that the veteran's own account of the being exposed to asbestos was recorded in his medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet.App. 406, 409 (1995), the Court held that "Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence...[and] a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional." Moreover, the Board notes that the connection between respiratory problems and smoking is well known. The Board finds that the veteran's history of smoking provides evidence against this claim. Furthermore, the Board notes that the medical evidence that is of record contains no finding of any of the conditions listed earlier as indicative of asbestos exposure. The medical evidence does not show radiographic changes that would be indicative of asbestos exposure such as interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. The absence of these conditions further supports the conclusion that the cause of the veteran's respiratory conditions is not asbestos exposure. The veteran's own opinion that his current lung problems are related to asbestos exposure in service is not sufficient to support the claim. The Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992). Therefore, after a careful review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for a lung disorder claimed as due to asbestos exposure. II. Whether New And Material Evidence Has Been Presented To Reopen A Claim For Service Connection For Post-Traumatic Stress Disorder (PTSD). The appellant contends that the RO committed error in refusing to reopen and grant his claim for service connection for PTSD. He asserts that the disorder was incurred in service as a result of the Marine barracks attack in Beirut. The appellant's claim for service connection for PTSD was previously denied by the RO in July 1995. The previously considered evidence included the veteran's service medical records which were negative for any references to PTSD or any other psychiatric disorder. The report of a medical history given by the veteran for the purpose of separation from service in May 1984 reflects that he denied having depression, excessive worry, or nervous trouble of any sort. The report of a medical examination conducted at that time shows that psychiatric evaluation was normal. Also of record was the veteran's DD 214 which reflected that he was a Seaman in the United States Navy. His awards and decorations did not include any which are awarded exclusively for combat service. Various other service personnel records were also obtained, but again there was no mention of combat or any other stressor. In a written statement received in 1994, the veteran reported claimed stressors including being aboard a ship which carried explosives and ordnance, and being aboard a ship one mile off the coast of Lebanon during the bombing of Marine barracks. He recounted that the ship was placed on general quarters alert, and thinking of all those men who were killed really bothered him. Also of record were several post service treatment records. A summary from the Central State Hospital dated in June 1993 reflects diagnoses of recurrent major depression, alcohol dependence, and self induced gunshot would to the right foot. A letter dated in March 1995 from the Central Georgia Mental Health Center reflects that the veteran had been diagnosed with PTSD. Finally, the previously considered evidence included the report of a VA PTSD examination conducted in December 1994. The report shows that the veteran reported that he was at Lebanon for 9 months, and the embassy exploded with a suicide bombing and barracks were also bombed with 135 people killed. He further reported that helicopters started evaluating the Marines. Following examination, the diagnoses were PTSD, chronic with depression, severe, competent, unemployable; and (2) ETOH abuse, episodic excessive drinking. VA treatment records dated in 1994 contains similar information. In the decision of July 1995, the RO noted that there was medical evidence containing a diagnosis of PTSD, but that the veteran had not provided sufficient evidence to demonstrate the occurrence of a stressor during service which would support such a diagnosis. More specifically, it was noted that there was no evidence that the veteran was in close proximity to the attack on the U.S. Embassy or the Marine barracks, or that he was involved in any follow up operations concerning the attacks. It was further stated that service on a ship which carries ammunition is not in itself a qualifying stressor. Accordingly, the RO denied the claim. The veteran was notified of the decision, but did not submit a notice of disagreement. The July 1995 decision is final based upon the evidence then of record. 38 U.S.C.A. § 7105. The veteran requested that his claim for service connection for PTSD be reopened in August 1998, but that request was denied by the RO in November 1998. The additional evidence which was presented at that time included a treatment record from the River Edge Behavioral Health Center dated in September 1998 reflecting a diagnosis of PTSD, documents from the Social Security Administration pertaining to a claim for disability benefits with that organization, and lay statements from relatives and acquaintances that were to the effect that the veteran was a different person after returning from service. Again, the veteran did not file a notice of disagreement with the decision and it became final. In December 2003, the veteran requested that his claim be reopened. The RO denied that request, and the veteran perfected the current appeal. A claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The changes to 38 C.F.R. § 3.156(a) that define new and material evidence are effective prospectively for claims filed on or after August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (now codified at 38 C.F.R. § 3.156(a)). Since the veteran's request to reopen his claim was filed in December 2003, the regulations in effect since August 29, 2001, are for application. Nevertheless, to whatever extent the new legislation has changed the approach to developing evidence in claims, it has not modified the longstanding requirement that a previously denied claim may not be reopened and readjudicated unless, and until, there has been a finding that new and material evidence has been submitted. The Board finds that the evidence added to the file in the context of the attempt to reopen the claim of entitlement to service connection for PTSD fails to address the inadequacies of the appellant's claim at the time of the prior denials. In this respect, the additional evidence submitted does not contain any new evidence to show that the veteran was subjected to a stressor during service. The Board notes that the veteran's testimony which he gave during a hearing held before the undersigned Veterans Law Judge in May 2008 is not sufficient to reopen the claim. He reported that he was part of a multi-national peace keeping force, and that on the morning when the Marine Corps barracks was attacked, they were just off the coast of Lebanon. He said that the ship had guns, but they were not allowed to shoot them. He also stated that helicopters left his ship, and the captain was screaming. The Board finds that, in essence, his current testimony simply duplicates the contentions which he made at the time of his original claim. For that reason, the testimony may not be considered to be new and material evidence. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Similarly, a written stressor statement from the veteran dated in February 2004 and various lay statements such as one dated in April 2006 from the veteran's wife are likewise duplicative of the previously considered evidence as they contain no new information. The Board also notes that numerous additional post service medical records have been presented. However, the records do not add any new relevant information. The records are all from many years after service. Although some of the records contain a diagnosis of PTSD, the previously considered evidence also included records containing that same diagnosis. It was not lack of a diagnosis which resulted in the prior denials, but lack of proof of a stressor. Moreover, the Board notes that some of the treatment records reflect that the diagnosis of PTSD was based on accounts of stressors that clearly were not accurate. For example, a treatment record dated in October 2000 includes a history of having fought in Vietnam. As the veteran's period of service did not begin until several years after the end of the Vietnam era, such a history was clearly erroneous. The veteran has also presented additional documents from the Social Security Administration reflecting that he was awarded disability benefits due to a psychiatric disorder. However, none of the documents from the Social Security Administration contain any opinion relating a current disorder to service, nor is there any verification of a PTSD stressor. Consequently, the Board finds that the evidence received since the prior decision regarding the claim for service connection for PTSD is not sufficiently significant to warrant reconsideration of the merits of the claim. The additional evidence presented is cumulative and redundant, and does not raise a reasonable possibility of substantiating the claim. As the evidence received since the prior decision to deny service connection for PTSD is not new and material, the claim for service connection for that disorder may not be reopened. The prior decisions denying the claim remain final. III. Duty to Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126, 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). By letter dated in January 2004, the veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. The Board also notes that the veteran was adequately informed through January 2004 letter of the definition of new and material evidence, and what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran's initial duty-to-assist letter was provided before the adjudication of his claims. The January 2004 letter noted that the claim for PTSD had previously been denied, and advised him that he must submit new and material which related to an unestablished fact necessary to substantiate the claim. Although the RO did not specifically explain the reason why the claim was previously denied (i.e., lack of stressor to support a diagnosis of PTSD) this was harmless error as the letter specifically requested that he provide details of the stressful incident in service. The essential point is that he was given notice as to the type of evidence that he needed to submit to reopen his claim. A reasonable person could be expected to understand from the notice what was needed. Moreover, actual knowledge of what type of evidence is need to reopen the claim is established by statements or actions by the veteran and his representative that demonstrate an awareness of what was necessary to substantiate his claim. In this regard, the veteran submitted a stressor statement in February 2004. Thus, any deficiency in the VCAA notification letter was non- prejudicial as it did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). In addition, he was notified regarding the assignment of disability ratings and effective dates in a letter dated in April 2008 prior to transfer of the case to the Board. Moreover, with respect to the Dingess requirements, in light of the Board's denial of the veteran's claims, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His service medical records and post service treatment records have been obtained. His Social Security Administration records were also obtained. He has had a hearing. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board notes that the veteran has not been afforded VA examinations, but the Board concludes that such examinations are not warranted. With respect to the claim for PTSD, the Board notes that a VA examination would not provide information which would corroborate a claimed stressor. With respect to the claim for a lung disorder, to include as secondary to asbestos exposure, the Board finds that an examination is not warranted as there is no basis to conclude that the veteran's current lung problems may be related to service. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As is discussed above, there is already medical evidence that the veteran currently has a lung disorder. However, there is no indication that it may be related to service. On the contrary, there is already medical opinion evidence of record relating the lung problems to factors other than service, such as smoking and histoplasmosis. Thus, there is already an adequate basis to decide the claim, and an examination is not warranted. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. (CONTINUED ON NEXT PAGE) ORDER 1. Service connection for a lung disorder, to include a secondary to asbestos exposure is denied. 2. The request to reopen a claim for service connection for PTSD is denied. ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs