Citation Nr: 0934027 Decision Date: 09/10/09 Archive Date: 09/17/09 DOCKET NO. 07-00 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a pulmonary disability due to asbestos exposure. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty with the U.S. Navy from September 1951 to May 1954. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the claims folders was subsequently returned to the RO in New York, New York. The appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing at the New York RO in August 2007. A transcript of the hearing is associated with the claims folders. The case was remanded by the Board to the Appeals Management Center (AMC) in August 2008. It has since been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). FINDING OF FACT The Veteran's pulmonary disability was not present in service and is not etiologically related to his exposure to asbestos during service. CONCLUSION OF LAW A pulmonary disability due to asbestos exposure was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West Supp. 2002); 38 C.F.R. § 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for pulmonary disability due to alleged exposure to asbestos during his naval service. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2008), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided VCAA notice by letter mailed in May 2005, before the initial adjudication of the claim in June 2006. The Veteran was also provided notice with respect to the disability-rating and effective-date elements of the claim in March 2006, prior to the initial adjudication of the claim. Additional notice was provided as to asbestos-related claims in October 2008. Although the October 2008 notice was sent after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim in June 2009. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board further notes that service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. In addition, the AMC requested that the Veteran provide as much detail as possible relating to the alleged in-service asbestos exposure he claims resulted in his pulmonary disability. The Veteran responded in January 2009 with copies of previously submitted medical records. The Board acknowledges that the Veteran has not been provided a VA examination in response to this claim and that no VA medical opinion has been obtained in response to this claim. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. See 38 C.F.R. § 3.159(c)(4); see also Charles v. Principi, 16 Vet. App. 370 (2002). In the case at hand, the medical evidence currently of record is sufficient to decide the claim. In this regard, the Board notes that the medical evidence currently of record establishes that the Veteran has pulmonary disability due to asbestos exposure. In addition, the evidence establishes that the Veteran was exposed to asbestos after service. As explained below, the Board has determined that the Veteran was not exposed to asbestos during service. Therefore, there is no reasonable possibility that VA examination results or a VA medical opinion would substantiate the Veteran's claim. The Board also acknowledges guidelines regarding asbestos- related diseases found in DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular), included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21 VA administrative protocols set forth in these guidelines have been followed, and the claim has been adequately developed. The claim was specifically remanded by the Board in order to comply with these guidelines. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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). Generally, 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. 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. An asbestos-related disease can develop from brief exposure to asbestos. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). 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 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 service 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). Analysis In August 2007 hearing testimony before the undersigned, the Veteran reported asbestos exposure occurred while working in the cargo hold of ships in his job as a cargo handler. He testified to handling burlap bags full of white stuff which smelled. He did not know what the bags were filled with but indicated items included potatoes and machinery such as auto parts and brake pads. The Veteran also testified that he was first told he had two spots on his lung after undergoing an X-ray study in 1955 or so. In 1970, he was told that he had two spots on his lung based on an X-ray findings in connection with his manufacturing job at a fiberglass plant. He testified that he worked in a boiler room and thereafter for about 12 years on fiberglass pipes at a fiberglass plant. The doctors' records from the 1955 and 1970 X-rays were likely unavailable according to his testimony. The Veteran has a diagnosis of abnormal ct scan of the chest consistent with previous asbestos exposure dating from March 2005. A September 2004 chest X-ray examination showed pleural plaques which reportedly can be seen in patients with previous asbestos exposure. In November 2004, the assessment was asbestos exposure without evidence of asbestosis. A December 2004 pulmonary disease assessment by P.B., M.D., was that the Veteran had an abnormal chest X-ray consistent with pleural asbestosis related to his significant exposure to asbestos. The reported history included exposure to asbestos while working in a boiler room for approximately 10 years and working in a fiberglass factory. The claims folder reflects that the Veteran worked as a cargo handler and aboard ship. His DD 214N shows that he was a seaman apprentice who attained the rank of E2. Neither service treatment records nor service personnel records show that the Veteran was exposed to asbestos. Service treatment records are negative for any complaints, findings, or diagnosis of a pulmonary disability due to asbestos exposure. Following consideration of the entire evidence of record, the Board cannot find that the Veteran was exposed to asbestos while in service. As noted by the RO in the Statement of the Case, the VA guidelines provide that the a seaman's probability of exposure to asbestos was minimal. The Veteran did not perform any of the in-service occupations which are traditionally associated with asbestos exposure as set forth in the aforementioned VA manual. Indeed, 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). However, in this case, the Board has weighed the evidence and finds the testimony less persuasive than the evidence that there was no exposure. Although the Veteran's testimony has been carefully considered, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to asbestos in service. Post service treatment records show initial findings consistent with asbestos exposure some 50 years after service. Post service exposure is indicated. Although a private physician indicated that the Veteran's current findings are indeed related to significant asbestos exposure, the opinion is based on reported post-service exposure. Thus, this is not persuasive evidence in favor of the Veteran's claim given the lack of in-service exposure. 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 pulmonary disorder claimed as due to asbestos exposure. ORDER Entitlement to service connection for a pulmonary disability due to asbestos exposure is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs