Citation Nr: 0936154 Decision Date: 09/24/09 Archive Date: 10/02/09 DOCKET NO. 07-04 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to December 1957. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2006 rating decision of the Lincoln, Nebraska, VA Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent evidence does not establish that asbestosis is related to service. CONCLUSION OF LAW Asbestosis was not incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant'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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 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 request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board notes that the Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The June 2006 letter told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet. App. at 120. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case). If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, No. 07-1209 (U.S. Sup. Ct. Apr. 21, 2009); 556 U.S. ____ (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in August 2006. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The claimant was also sent a letter regarding the appropriate disability rating or effective date to be assigned in June 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2008). 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. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). Additionally, the Board must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120 (1997). VA must determine whether service records demonstrate evidence of asbestos exposure during service; whether there was pre-service, post-service, occupational, or other asbestos exposure; and whether there is a relationship between asbestos exposure and the claimed disease. The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for asbestosis and there is competent evidence of a diagnosis of asbestosis. Thus, the issue is whether asbestosis is related to service. Having reviewed the record, the Board finds that the competent evidence establishes that asbestosis is not related to service. A July 2004 private report notes that the Veteran served aboard the USS O'Brien from 1954 to 1957 and that he described asbestos-covered pipes on the ship, noting that he did not directly work on asbestos materials during service. In addition, the report notes the Veteran's history of having worked, from 1952 to 1956 as a hostler, fireman and engineer on the railroad and states the following: He rode on steam engine[s] regularly from 1952 until 1953; after that time he rode on diesel engines. He was a fireman on steam engines. He described the steam engine as causing a lot of dust. He would sweep the floor of the cab of the steam engine using brooms or water hoses. He was also a hostler in the roundhouse while asbestos lagging was being removed and replaced on other steam engines. During the diesel era he rode on numerous types of diesel locomotives including "covered wagons." He was on passenger and freight diesels. When on passenger diesels he was a fireman working on the asbestos-clad steam generator on the rear of the diesel passenger unit. He deadheaded in cabooses. He remembers there was a potbelly stove in the caboose. He is not sure that there was insulation on the walls near the potbelly stove. He remembers inhalation of brake shoe dust while on the head end and in the caboose. He would sweep the floor of the caboose. He would change composition and metallic brake shoes on diesel locomotives. He also dropped brake riggings on an as- needed basis. The examiner concluded that given the Veteran's significant exposure to asbestos in the workplace associated with an appropriate latency, and given the roentgenographic findings, the Veteran's interstitial fibrosis, caused by bilateral pulmonary asbestosis as well as bilateral asbestos-related pleural disease, was causally related to workplace exposure to asbestos on the railroad. In addition, on VA examination in August 2006 VA, the Veteran's history was noted as follows: [The Veteran] was 19 when he entered the Navy. He had worked for the railroad as a fireman for a year-and-a-half prior to that. His duties as a fireman were to tend the fire for the steam engine -- the trains in the early 1950s were still steam engines. Pre-enlistment he also worked two summers driving a truck for a road construction company. In the Navy, he was a boatswain's mate and was assigned to the USS O'Brien, which was a destroyer. As a mate, he kept the decks clean, etc. and did not work with asbestos at all that he knows of. He was also the mess hall master-at-arms for a year or so. He says he did not work directly with asbestos, but sometimes the asbestos insulation in the mess deck pipes would require repair. They would wrap the area with some sort of canvas until the pipe fitters could come in and fix them. He says he had the top bunk and there were pipes crossing the ceiling above him that were wrapped in asbestos. These never required repairs that he knows of. In providing an opinion in regard to the etiology of the Veteran's lung disorder, the examiner stated the following: This man has had asbestos exposure and has mild asbestosis and mild pleural based disease given pleural thickening identified on previous chest xrays. The veteran did not work directly with asbestos in the Navy, and does not give a credible history of asbestos exposure on active duty. On the other hand, his 44 years working for the railroad was associated with asbestos exposure as detailed in Dr. S[]'s report. The veteran has received settlements from class action lawsuits related to his work on the railroad. Given these factors, it is less than likely that any asbestos related lung disease the veteran has is due to his military service. The Board notes that a determination as to whether asbestos is related to service requires competent evidence. The Veteran is competent to report his symptoms, as well that he was exposed to asbestos during service, and the Board notes that assertions in the February 2007 VA Form 9 include having been exposed to asbestos as a mess hall master-at-arms for 11/2 years, at which time he worked around asbestos covered pipes every day and that in the scullery and/or at the steam table, the wrapping around the piping would frequently become damaged or broken and that he would sweep and clean up the white dust that was sloughed off; having been required to stay on the vessel while it was dry docked at Long Beach for 30-60 days, at which time it was undergoing sandblasting and pipe removal and that during most of that time, the ventilation system was shut down; and having worn asbestos mitts in association with his assignments to the 5" mount #1 in the lower handling room, in the mount as powder man and as projectile man. While competent to report his symptoms, as a layman, however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record, to include the opinions to the contrary. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303 (2007). In regard to the VA examiner's notation to the effect that the Veteran did not give a credible history of asbestos exposure during service, the Board notes that even assuming asbestos exposure during service, the competent evidence does not establish that the Veteran's asbestosis is attributable to service. Rather, both the VA and private medical opinions specifically state that asbestosis is related to his post- service employment on the railroad. To the extent that a history of working on the railroad prior to service entrance has been noted, the February 1954 service entrance examination shows the lungs and chest were normal and the Veteran is presumed to have been in sound condition at that time, and while latency periods have been noted, absent clear and unmistakable evidence to rebut the presumption of soundness, a theory of aggravation is not relevant. The Board notes that the December 1957 separation examination report shows that the lungs and chest were normal. In this case, the Board has accorded more probative value to the July 2004 and August 2006 medical opinions relating his asbestosis to post-service occupational asbestos exposure. The examiners reviewed the claims file and provided complete rationales for the opinions based on reliable principles. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefits sought on appeal are denied. ORDER Service connection for asbestosis is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs