Citation Nr: 0935065 Decision Date: 09/18/09 Archive Date: 09/23/09 DOCKET NO. 05-31 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lung disability, including as due to asbestos exposure. 2. Entitlement to a disability rating in excess of 50 percent for schizophrenic reaction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active duty from October 1955 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a lung disability and continued a 30 percent disability rating for schizophrenic reaction. Subsequently, in an August 2008 rating decision, the RO increased the disability rating for schizophrenic reaction to 50 percent disabling from the date of the claim for increased rating. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. The issue of a disability rating in excess of 50 percent for schizophrenic reaction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a lung disability due to any incident or event in military service or is a result of exposure to asbestos in service. CONCLUSION OF LAW A lung disability was not incurred in or aggravated by service, including asbestos exposure. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in May 2004, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2008). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In March 2006, the RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2008). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. Thus, the duties to notify and assist have been met. Analysis The Veteran contends that he has a lung disability related to service. Specifically, he asserts that he was exposed to asbestos in service leading to his current lung disability. He states that his sleeping quarters onboard the U.S.S. ODAX was below asbestos piping covers and that he inhaled dust from therefrom. Also, he indicated that he was responsible for the overhaul of the submarine which exposed him to asbestos dust. Additionally, he asserts that he was exposed to asbestos sidings during recruit training. When seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). 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 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been 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). 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. The Veteran's Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214) shows that he was a seaman. His service personnel records show that he served onboard the U.S.S. ODAX. However, his service treatment records do not show any treatment for, or complaints of, any lung disabilities. The Veteran currently has a diagnosis of chronic obstructive pulmonary disease as noted in various VA treatment records (e.g. October 2003, December 2003, and September 2008). These records also indicated that there was some evidence of an asbestos related lung disease. Another treatment record indicated that the Veteran had asbestos exposure from working in submarines. After a careful review of the evidence of record discussed above, the Board finds that service connection for a lung disability, including as due to asbestos exposure, has not been established. Initially, the Board notes that there is no indication that chronic obstructive pulmonary disease is related to asbestos exposure. See supra M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. In addition, the overall evidence does not reflect that the Veteran was exposed to asbestos in service. While the Veteran served on ships during service, the objective record does not document that he was exposed to asbestos in service in his capacity as a seaman. This is not shown to be a military occupational specialty ordinarily exposing individuals to asbestos. The United States Court of Appeals for Veterans Claims (Court) has held that "neither Manual M21-1 nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure to asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4- 2000. The Veteran's declarations of exposure are not supported by any corroborative evidence in the form of other individuals similarly exposed or through any documentation submitted. The Board notes the VA treatment record cited above noting the Veteran's exposure to asbestos working on a submarine. However, the Court has held that bare transcription of lay history unenhanced by any additional medical comment by the examiner, is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). The medical evidence appears to only be a recitation of the Veteran's statement of exposure. The Veteran has not demonstrated how he would have the expertise to recognize the presence of asbestos or his particular exposure therein. Therefore, the evidentiary record weighs against a finding that his currently diagnosed chronic obstructive pulmonary disease is causally related to asbestos exposure while in service or is otherwise related to service. The Board declines to obtain a medical nexus opinion with respect to the Veteran's service connection claim. While there is current evidence of a lung disability, there is no true indication that a disability is associated with service. See Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of the absence of findings of a lung disability in service, the lack of diagnosis of the claimed disability until many years post-service, and the lack of evidence demonstrating asbestos exposure in service, any opinion relating pertinent disability to service would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the Veteran is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that he currently has chronic obstructive pulmonary disease related to service including asbestos exposure therein) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lung disability, including as due to asbestos exposure, is denied. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2008). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran's last examination for his schizophrenic reaction was in August 2004. The Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As the current level of disability is at issue, a contemporaneous examination of the Veteran's schizophrenic reaction is necessary to accurately assess his disability picture. See also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran for a VA psychiatric disorders examination to determine the current level of severity of his schizophrenic reaction. The claims file and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating mental disorders. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs