Citation Nr: 0906325 Decision Date: 02/20/09 Archive Date: 02/27/09 DOCKET NO. 06-04 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1956 to August 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claims of entitlement to service connection for asbestosis and coronary artery disease (CAD). The Veteran submitted his notice of disagreement with the denials in July 2005 and perfected his appeal in January 2006. The Board notes that the Veteran specifically indicated that he wished only to appeal the issue of entitlement to service connection for asbestosis. In August 2008, the Veteran presented sworn testimony during a personal hearing in Oakland, California, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. Following his Travel Board hearing, the Veteran submitted additional medical evidence. The Veteran specifically waived agency of original jurisdiction consideration. See 38 C.F.R. § 20.1304 (2008). FINDINGS OF FACT 1. VA concedes that the Veteran was exposed to asbestos during his time in active duty service. 2. The preponderance of the evidence is against a finding that the Veteran currently suffers from asbestosis that is the result of a disease or injury in service. CONCLUSION OF LAW Asbestosis 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 (2008). REASONS AND BASES FOR FINDINGS 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 appellant. 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 Merits of the Claim The Veteran alleges that his shortness of breath is the result of exposure to asbestos during his time in the United States Navy. The Veteran has specifically alleged that as part of his duties as a boiler man, he was required to scrape asbestos off of pipes and equipment aboard the U.S.S. BAUSELL, the U.S.S. YUMA and the U.S.S. FORT MARION LSD22, which in turn caused his current lung problems. For the reasons that follow, the Board concludes that service connection is not warranted. 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 DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). In Dyment v. West, 13 Vet. App. 141, 145 (1999), the United States Court of Appeals for Veterans Claims (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). M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). In this case the record contains conflicting medical evidence. The Veteran's service records show that he served in the Navy. The service treatment records are negative for findings of a lung disorder. See Standard Forms 88 and 89, examination reports, February 21, 1956 and August 18, 1959. 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 asbestosis, service connection may not be granted. See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). In support of his claim, the Veteran refers the Board to medical evidence from his VA Medical Center (VAMC) treatment records. In November 2004, the veteran underwent a computed tomography (CT) scan of the chest. Multiple small, noncalcified nodules were seen on the study and two focal areas of pleural calcification were appreciated within the right hemithorax, which the examiner noted may have been related to asbestos exposure. Clinical correlation was suggested. See VAMC treatment record, chest CT scan, November 1, 2004. The Board does not find this opinion persuasive. Whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The examiner failed to provide any reasons or bases as to why the Veteran's nodules could be related to asbestos exposure. The Court has also held that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Based on the totality of the evidence in the Veteran's claims file, this vague conclusion is afforded no weight. With respect to the Veteran's contentions that he has asbestosis that is related to service, the Board observes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). However, the Board finds that the Veteran's lay statements in the present case are outweighed by the negative service, post-service treatment records and the negative VA medical opinion cited below. The only remaining evidence in support of the Veteran's claim are lay statements. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his shortness of breath. 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). The Board finds the remaining VAMC treatment records and the May 2007 VA respiratory examination report to be the most persuasive. In January 2005, a VAMC treatment note indicated the Veteran's complaints of shortness of breath, but stated that other causes must be considered besides asbestosis, including congestive heart failure (in patients with significant coronary artery disease), anginal equivalent, hypoventilation or obesity syndrome. The examiner stated that the Veteran's respiratory condition was not likely asbestosis. Though the Veteran did have pleural thickening which may be due to asbestos exposure, there were no parenchymal changes consistent with asbestosis. See VAMC treatment record, January 26, 2005. In March 2005, a subsequent chest CT scan report noted no pleural thickening or effusions. Compared to the November 2004 chest CT scan, there was no significant interval change in the appearance of the scattered, bilateral, noncalcified pulmonary nodules. Otherwise, the CT scan was unremarkable. See VAMC treatment record, chest CT scan, March 2, 2005. Pulmonary function testing (PFT) performed later in March 2005, revealed a mild restrictive ventilatory defect, possibly related to the Veteran being overweight. See VAMC treatment record, PFT, March 31, 2005. VAMC PFT was also conducted in June 2005. There was no evidence of an obstructive ventilatory defect while there was a mild restrictive ventilatory defect. The examiner commented that a mild restrictive ventilatory defect was commonly seen as a consequence of obesity. Compared to the March 2005 PFT study, the total lung capacity was slightly decreased. See VAMC treatment record, PFT, June 10, 2005. The Veteran was afforded a VA respiratory examination in May 2007. The examiner noted that the Veteran's claims file had been reviewed in conjunction with the examination. Factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The examiner stated that while the November 2004 chest CT scan noted findings consistent with asbestos exposure, there was no significant evidence of asbestos-related lung disease. Specifically, the March 2005 and June 2005 PFTs did not indicate findings consistent with asbestosis. In particular, diffusion capacity was considered to be normal or elevated when corrected, which was inconsistent with the diagnosis of asbestosis. Furthermore, subsequent imaging of the Veteran's chest did not indicate evidence of asbestos-related lung disease. See VA respiratory examination report, May 16, 2007. Concurrent with the Veteran's complaints of shortness of breath were additional evaluations for coronary artery disease, which was at least preliminarily noted in 2001. At that time, the Veteran was found to have diffuse coronary artery disease upon cardiac catheterization in 2005. The Veteran was also noted on echocardiogram to have a normal ejection fraction and evidence of aortic sclerosis. The examiner concluded there is no current evidence of asbestosis-related lung disease by previous testing. Further, it was not at least as likely as not that the Veteran currently suffers from any condition that is due to his asbestos exposure. The Veteran's shortness of breath should be considered most likely caused by or a result of his coronary artery disease. Id. In August 2008, the Veteran underwent another chest CT scan. The lungs showed one nodule in the right lower lobe which was prominent. This increased prominence was considered possibly due to the difference in slice thickness. There was no evidence of pleural fluid or thickening. See VAMC treatment record, chest CT scan, August 19, 2008. There was no evidence of asbestosis. Although the Veteran has established that he currently suffers from shortness of breath, the evidence of record does not support a finding that the Veteran has been diagnosed with asbestosis. See Degmetich, supra. The Board is appreciative of the Veteran's military service, but, even accepting that he was exposed to asbestos in service, there must be a resulting disability, as exposure, in and of itself, is not compensable under VA's laws. 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. II. 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 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 February 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 February 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. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. 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. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. 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 May 2007 to obtain an opinion as to whether his alleged respiratory disability can 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 above. At the hearing before the undersigned, the representative argued that the VA examination conducted in May 2007 was inadequate because the examiner did not perform a physical evaluation of the Veteran. The examination report explicitly states that a physical evaluation was not conducted. However, the purpose of the examination was not to obtain information as to the Veteran's current pulmonary status, but to obtain an opinion, upon review of the file, as to whether the Veteran has asbestos-related lung disease. The file was reviewed, and the opinion was provided. There is no evidence that the examiner was not competent and qualified to provide an opinion. Therefore, the Board finds the VA examination provided to the Veteran in 2007 was adequate. The Board also rejects the representative's assertion that perhaps more testing needs to be conducted. Considering the CT scans and PFTs described above, there is more than sufficient evidence to clearly establish that although the Veteran was likely exposed to asbestos during service, that exposure has not resulted in a current respiratory disability. 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). ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ MICHELLE L. KANE Chief Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs