Citation Nr: 1009765	
Decision Date: 03/15/10    Archive Date: 03/24/10

DOCKET NO.  07-05 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for respiratory disability, 
to include as due to asbestos exposure.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Wishard, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1966 to August 
1970.

This matter comes before the Board of Veterans' Appeals 
(Board) from a December 2006 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO) in 
Waco, Texas.

This matter was previously before the Board in August 2008 
and July 2009 and was remanded for further development.  It 
has now returned to the Board for further appellate 
consideration.  The Board finds that by obtaining the 
Veteran's service personnel records, affording the Veteran a 
VA examination, obtaining a supplemental medical opinion, and 
requesting the Veteran to provide additional information 
regarding his claim, the RO has complied with the previous 
remands. 


FINDINGS OF FACT

1.  The competent credible clinical evidence of record does 
not establish that the Veteran has a current respiratory 
disability.

2.  The competent credible clinical evidence of record does 
not causally relate the Veteran's symptoms of dyspnea to 
active service on any basis. 


CONCLUSION OF LAW

A chronic respiratory disability, to include as due to 
asbestos exposure, was not incurred in, or aggravated by, 
active service.  See 38 U.S.C.A.§§ 1110, 5103, 5103A, 5107 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 
(2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 
3.159, and 3.326(a) (2009).  

Duty to Notify

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice 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; and (3) that the 
claimant is expected to provide.  VCAA notice should be 
provided to a claimant before the initial unfavorable agency 
of original jurisdiction (AOJ) decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also 
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on 
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the United States Court of Appeals for 
Veterans Claims (Court) issued its decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 
19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held 
that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b) apply to all five elements of a 
"service connection" claim.  As previously defined by the 
courts, those five elements include:  (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.  Upon 
receipt of an application for "service connection," 
therefore, VA is required to review the information and the 
evidence presented with the claim and to provide the claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  This includes 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded.

VA satisfied its duty to notify as to the claim by means of 
September 2006 correspondence to the Veteran.  The letter 
informed him of what evidence was required to substantiate 
the claim, of his and VA's respective duties for obtaining 
evidence, and of the criteria for assignment of a disability 
rating and effective date if service connection was granted.  

In Pelegrini, supra, the Court held that compliance with 
38 U.S.C.A. § 5103 required that VCAA notice be provided 
prior to an initial unfavorable AOJ decision.  Because 
complete VCAA notice in this case was provided prior to the 
initial AOJ adjudication denying the claim, the timing of the 
notice does comply with the express requirements of the law 
as found by the Court in Pelegrini.  

All the VCAA requires is that the duty to notify is 
satisfied, and that claimants be given the opportunity to 
submit information and evidence in support of their claims.  
Once this has been accomplished, all due process concerns 
have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996).

Duty to assist

With regard to the duty to assist, the claims file contains 
the Veteran's service treatment records (STRs), service 
personnel records, and VA and private examination records.  
Additionally, the claims file contains the Veteran's 
statements in support of his claim.  The Board has carefully 
reviewed these statements and concludes that there has been 
no identification of further available evidence not already 
of record.  In an e-mail to his senator, the Veteran averred 
that he flew through an atomic cloud in Nevada in the 1960s.  
There is no other evidence of record in the claims file that 
the Veteran flew through an atomic cloud, or that he has any 
disability which could be associated with such an incident.  
In correspondence dated in August 2009, VA requested the 
Veteran to provide any objective evidence or information that 
corroborates his assertion.  To date, no such information has 
been received.  The duty to assist is not a one-way street.  
If a Veteran wishes help, he cannot passively wait for it in 
those circumstances where he may or should have information 
that is essential in obtaining the putative evidence.  Wood 
v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Board finds 
that VA has no further duty to assist the Veteran in 
substantiating his claim regarding an atomic cloud.

The Board has also perused the medical records for references 
to additional treatment reports not of record, but has found 
nothing to suggest that there is any outstanding evidence 
with respect to the Veteran's claim.

A VA examination with opinion with respect to the issue on 
appeal was obtained in November 2008.  A supplemental 
clinical opinion was obtained in September 2009.  38 C.F.R. 
§ 3.159(c) (4).  To that end, when VA undertakes to provide a 
VA examination or obtain a VA opinion, it must ensure that 
the examination or opinion is adequate.  Barr v. Nicholson, 
21 Vet. App. 303, 312 (2007).  The Board finds that the VA 
examination and opinions obtained in this case are more than 
adequate, as they are predicated on a reading of the 
pertinent medical records, a clinical interview with the 
Veteran, and a review of pertinent diagnostic testing.  The 
reports of the VA examination provide findings relevant to 
adjudicate the issue and provide a complete rationale for the 
opinions stated, relying on and citing to the records 
reviewed.  Accordingly, the Board finds that VA's duty to 
assist with respect to obtaining a VA examination or opinion 
with respect to the issue on appeal has been met.  38 C.F.R. 
§ 3.159(c) (4).  

Based on the foregoing, the Board finds that all relevant 
facts have been properly and sufficiently developed in this 
appeal and no further development is required to comply with 
the duty to assist the Veteran in developing the facts 
pertinent to his claim.  

Legal criteria

Service connection is warranted if it is shown that a Veteran 
has a disability resulting from an injury incurred or a 
disease contracted in active service or for aggravation of a 
pre-existing injury or disease in active military service.  
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 
(2009).  Service connection may also 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).

"Generally, to prove service connection, a claimant must 
submit (1) medical evidence of a current disability, (2) 
medical evidence, or in certain circumstances lay testimony, 
of in-service incurrence or aggravation of an injury or 
disease, and (3) medical evidence of a nexus between the 
current disability and the in-service disease or injury."  
Pond v. West, 12 Vet. App. 341, 346 (1999).  Where the 
determinative issue involves a medical diagnosis, competent 
medical evidence is required.  This burden typically cannot 
be met by lay testimony because lay persons are not competent 
to offer medical opinions.  Espiritu v. Derwinski, 2 Vet. 
App. 492, 494-95 (1992).

In Robinson v. Shinseki, the Court held that, in some cases, 
lay evidence will be competent and credible evidence of 
etiology.  Whether lay evidence is competent in a particular 
case is a question of fact to be decided by the Board in the 
first instance. The Court set forth a two-step analysis to 
evaluate the competency of lay evidence. First, Board must 
first determine whether the disability is the type of injury 
for which lay evidence is competent evidence.  If so, the 
Board must weigh that evidence against the other evidence of 
record-including, if the Board so chooses, the fact that the 
Veteran has not provided any in-service record documenting 
his claimed injury -to determine whether to grant service 
connection.  Robinson v. Shinseki, 2008-7096 (Fed. Cir, March 
3, 2009).

The Board notes there are no laws or regulations which 
specifically address service connection for disability due to 
asbestos exposure.  However, the VA Adjudication Procedure 
Manual, M21-1 MR, and opinions of the Court and General 
Counsel provide guidance in adjudicating these claims.

In 1988, VA issued a circular on asbestos-related diseases 
providing 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 since have been included in VA 
Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, 
Chapter 2, Section C (December 13, 2005).

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 IV, 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 IV, Subpart ii, Chapter 2, Section C, 9 (f).  

The Board notes that the 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 IV, Subpart ii, Chapter 2, 
Section C, 9 (e). 

Analysis

The Board has reviewed all of the evidence in the Veteran's 
claims file, with an emphasis on the evidence relevant to 
this appeal.  Although the Board has an obligation to provide 
reasons and bases supporting this decision, there is no need 
to discuss, in detail, the extensive evidence of record.  
Indeed, the Federal Circuit has held that the Board must 
review the entire record, but does not have to discuss each 
piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000).  Therefore, the Board will summarize the 
relevant evidence where appropriate, and the Board's analysis 
below will focus specifically on what the evidence shows, or 
fails to show, as to the claim.

The Veteran is seeking service connection for a respiratory 
disability, to include as due to asbestos exposure.  The 
Veteran avers that he was exposed to asbestos while working 
in aircraft maintenance in service.  

In cases where a Veteran is seeking service connection for 
any disability, due consideration shall be given to the 
places, types, and circumstances of such Veteran's service as 
shown by such Veteran's service record, the official history 
of each organization in which such Veteran served, such 
Veteran's medical records, and all pertinent medical and lay 
evidence.  38 U.S.C.A. § 1154(a) (West 2002).

There is no objective competent evidence of record that the 
Veteran was exposed to asbestos in service.  However, the 
evidence of record indicates that the Veteran's military 
occupational specialty (MOS) was aircraft maintenance.  As 
the Veteran was involved in aircraft maintenance, to include 
brake work, the Board acknowledges that there is the 
possibility that he may have been exposed to asbestos.  

The first element in a service connection claim is medical 
evidence of a current disability.  The September 2009 VA 
examination report reflects that the Veteran has dyspnea most 
likely related to cardiac disease.  (This is a corrected 
diagnosis of the diagnosis stated in the November 2008 VA 
examination).  Dyspnea is a symptom of a disability, and not 
a disability, in and of itself.  The Board notes that a 
symptom, without a diagnosed or identifiable underlying 
malady or condition does not in and of itself constitute a 
disability for which service connection may be granted.  A 
service connection claim requires, at a minimum, medical 
evidence of a current disability.  Brammer v. Derwinski, 3 
Vet. App. 223, 225 (1992).  

As noted above, the M21-1 MR provides that a clinical 
diagnosis of asbestosis requires a history of exposure and 
radiographic evidence of parenchymal lung disease.  There is 
no such evidence of record.  A December 2001 report of 
reading of a September 1999 X-ray film, by Dr. A.J.S., 
reflects that there were no parenchymal abnormalities 
consistent with pneumoconiosis.  There were no opacities on 
the film.  The Board notes that the December 2001 reading of 
a September 1999 x-ray film does reflect that there were 
pleural abnormalities consistent with pneumoconiosis and the 
Veteran had had a median sternotomy.

The evidence of record does not establish that the Veteran 
has, or has had, a respiratory disability during the pendency 
of his claim.  The September 2009 VA examination report 
reflects that the Veteran's pulmonary function studies were 
normal and did not show any evidence of obstructive or 
restrictive pulmonary lung disease.  His spirometry was 
negative.  His chest x-ray and CT scan did not show any 
evidence of pleural plaques.  The radiologist report noted 
that there was no evidence of asbestosis.  As the evidence of 
record does not establish that the Veteran has a current 
pulmonary disability, service connection is not warranted.  

The Board notes that even if the Veteran had a current 
respiratory disability, the evidence of record does not 
reflect that any such disability would be causally related to 
active service. 

Private correspondence, dated in March 2007, by Dr. A.J.S., 
reflects the opinion of Dr. A.J.S. that, based on the 
Veteran's extensive amount of asbestos and asbestos dust 
exposure, the Veteran's claim of shortness of breath, and 
roentgengraphic findings, the Veteran suffers from an 
asbestos-related pleural disease caused by asbestos dusts.  
He opined that the Veteran had bilateral pleural plaques.  

The probative value of medical opinions is based on the 
medical expert's personal examination of the patient, the 
physician's knowledge and skill in analyzing the data, and 
the medical conclusion that the physician reaches.  As is 
true with any piece of evidence, the credibility and weight 
to be attached to these opinions are within the province of 
the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 
(1993).  The Board finds, for the following reasons, that the 
opinion of the VA examiner has more weight than that of Dr. 
A.J.S.  First, Dr. A.J.S.'s opinion was not based on a 
clinical examination of the Veteran, a review of his complete 
medical history, or a review of his claims file.  In 
contrast, the VA examiner performed a medical examination of 
the Veteran (to include a review of pulmonary function 
testing, a chest x-ray, and a CT scan) and an interview of 
the Veteran to obtain his medical history.  Second, Dr. 
A.J.S.'s opinion was based on an eight year old x-ray of the 
Veteran's lungs.  The VA examiner's opinion was based on 
recent diagnostic testing.  Moreover, the personnel records 
do not support the doctor's statement that the Veteran was a 
hauler operator, dozer operator, and dockworker in service.  
Rather, the evidence of record reflects that he was a hauler 
operator, post service, from 1979 to 1980, and a dozer 
operator for more than twenty years, beginning in 1980.  The 
Board notes that the Veteran's post service occupational 
history of more than twenty years as a hauler and dozer 
operator was with a mining company.  In addition, the Board 
notes that the Veteran, in a statement dated in May 2007, 
acknowledges that he "is not denying exposure" to asbestos 
after the military.  Finally, Dr. A.J.S. does not 
specifically relate any disability to the Veteran's active 
service.

A November 2008 VA examination report reflects the opinion of 
the VA examiner that, based on a normal pulmonary function 
test, a C-T scan that shows no evidence of asbestosis, and a 
negative chest x-ray for asbestosis, the Veteran does not 
have pulmonary asbestosis.  In a supplemental opinion, dated 
in September 2009, the same VA examiner noted that the C-T 
scan and chest x-ray did not show any evidence of pleural 
plaques.  The examiner noted that the Veteran had dyspnea, 
and this may be, or most likely is, related to his cardiac 
disease and not pulmonary disease.  In this regard, the Board 
notes that the evidence of record reflects that the Veteran 
had heart surgery because of coronary artery disease, and had 
a myocardial infarction in July 1995.  Service connection has 
not been established for coronary artery disease or 
myocardial infarction.  The VA examiner opined that the 
Veteran "does not have lung disease related to either 
chronic obstructive pulmonary disease or chronic disability 
related to asbestosis related to active service on any 
basis."

The Veteran's STRs are negative for any complaints of chronic 
respiratory disability or symptoms.  A December 1966 medical 
record reflects a possible upper respiratory infection.  A 
physical examination of the throat and chest was negative.  
The Veteran was advised to gargle and use "Robitussin".  
The Veteran's June 1969 report of physical examination for 
flight purposes, and his July 1970 report of physical 
examination for separation purposes, reflect that, upon 
clinical evaluation, his lungs and chest were noted to be 
normal.  Moreover, the Veteran reported that he had never had 
shortness of breath or asthma. 

For the foregoing reasons, the Board finds that the 
preponderance of the evidence is against this claim, the 
benefit-of-the-doubt rule does not apply, and the claim for 
service connection for a respiratory disability, to include 
as due to asbestos, must be denied.  See 38 U.S.C.A. § 
5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

Entitlement to service connection for respiratory disability, 
to include as due to exposure to asbestos is denied.





____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs