Citation Nr: 1016514 Decision Date: 05/04/10 Archive Date: 05/13/10 DOCKET NO. 09-27 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active service from March 1952 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). A motion to advance this case on the Board's docket was received by the Board in March 2010. This motion was granted by the Board on April 16, 2010 due to the appellant's advanced age. FINDING OF FACT The competent credible clinical evidence of record does not establish that the Veteran has asbestosis. CONCLUSION OF LAW Asbestosis was not incurred in, or aggravated by, active service. 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 FINDING 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. In correspondence dated in December 2008, VA informed the Veteran 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 VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant therefore, has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. 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), and VA and private examination and treatment 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. 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 August 2008. 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 opinion obtained in this case is adequate, as it is predicated on a reading of the claims file, a review of recent chest x-rays, a pulmonary function test, and a clinical interview with the Veteran to obtain his pertinent history. 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). The Veteran's accredited representative averred, in a March 2010 written brief, that the Veteran should be afforded another VA examination because the August 2008 VA examiner did not provide a rationale for his opinion that the Veteran's chronic obstructive pulmonary disease (COPD) was caused by his smoking, which he had ceased 15 years prior. The Board finds that another VA examination is not warranted. The issue before the Board is not entitlement to service connection for COPD. The Veteran's claim for entitlement to service connection for COPD was denied in September 2008. The Veteran did not file a substantive appeal to that denial, and the decision is final. The sole issue before the Board at this time is entitlement to service connection for asbestosis. As the August 2008 VA examiner did not find that the Veteran had asbestosis, a further VA examination with regard to the etiology of a respiratory disability is not warranted. 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 generally 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, 2008-7096 (Fed. Cir, March 3, 2009), 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. The Board notes there are no laws or regulations specifically dealing with asbestos and service connection. 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 asbestosis. 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). The evidence of record indicates that the Veteran's military occupational specialty (MOS) was a mechanic. There is no objective competent evidence of record that the Veteran was exposed to asbestos in service; however, because the Veteran was involved in aircraft maintenance, 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. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a disability existing on the date of the application, not for a past disability). The competent clinical evidence of record is against a finding that the Veteran has asbestosis. Service connection may not be established in the absence of demonstration of current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). August 2008 VA pulmonary function test results reflect that the Veteran had a reduced FEV1 (forced expiratory volume) which suggested a moderate obstructive ventilatory impairment. A chest x-ray reflected that the Veteran's lungs were clear of infiltrate. The mediastinum appeared unremarkable. The bony architecture appeared unremarkable. The impression was "normal chest." An August 2008 VA examination report reflects that the Veteran has COPD with past bronchospasm. 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. The competent clinical evidence of record weighs against a finding that the Veteran has asbestosis; therefore service connection for asbestosis is not warranted. The claims file contains numerous radiology reports and private medical reports for the Veteran, to include reports by a private physician, Dr. K.F., which reflect a diagnosis of asbestosis. 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 that the March and June 2007 private medical opinions of Dr. K.F. are outweighed by the other evidence of record, as noted below. A January 1996 St. Charles hospital radiology report reflects neither infiltrates nor any consolidation in either lung. A February 1996 St. Charles hospital radiology report reflects a normal portable anterior-posterior upright chest view. It was noted that the lungs were essentially clear. A March 1996 St. Charles hospital radiology report reflects that the lungs were without acute process, and there was focal pleural thickening in the left lateral hemithorax. No pleural effusion was seen. The impression was a stable chest without acute process. An April 1996 St. Charles hospital radiology report reflects pleural thickening along the left lateral chest wall, which was stable in appearance. There were no focal infiltrates or effusions. A January 1997 St. Charles hospital radiology report reflects both lungs were clear. No effusions were seen. A June 1997 St. Charles hospital radiology report reflects the lungs were clear. There were no infiltrates or pleural effusions. A January 1999 St. Charles hospital radiology report reflects that the pleural spaces were clear. There was no consolidation of free fluid and no evidence of recent disease involving the lung fields. The conclusion was a normal posterior-anterior and lateral chest. A February 2000 St. Charles hospital radiology report reflects that the lungs were clear without focal infiltrates or effusions. A March 2000 St. Charles hospital radiology report reflects that both lungs were clear. A subsequent March 2000 St. Charles hospital radiology report reflects that the Veteran had possible pneumonia. It was noted that there was a small infiltrate seen in the right mid lung field adjacent to the right minor intralobar fissure. The remainder of the lungs were clear. There was localized pleural thickening in the left mid lateral hemithorax. A radiology report the next day reflects that there was a resolution of the right middle lobe infiltrate since the previous exam. A March 2001 St. Charles radiology report reflects normal upright chest view, with lungs essentially clear. A September 2002 St. Charles hospital radiology report reflects that the lungs were clear without focal infiltrates or effusions. A January 2003 St. Charles hospital radiology report reflects that the lungs were clear without focal infiltrates or effusions. An October 2003 St. Charles hospital radiology report reflects that the pleural spaces were clear, the view was a normal chest, there was no consolidation or free fluid and no evidence of recent disease involving the lung field. A February 1999 private medical record reflects the Veteran had COPD. March 2000, March 2001, and January 2003 attestation reports from St. Charles hospital reflect diagnoses of chronic airway obstruction. A March 2005 St. Charles hospital, radiology interpretation report reflects that the Veteran had no definite acute pathology. There was a density projected over the left mid lung field laterally, for which a repeat PA view of the chest was recommended. The accompanying emergency room report reflects that the chest x-ray was read as not showing anything acute, and on auscultation, the lungs were completely clear. The Veteran reported that he had quit smoking two years previously. The diagnosis was acute exacerbation of COPD and bronchitis. A March 26, 2007 history and physical report of St. Charles hospital reflects provisional diagnoses of COPD exacerbation, history of COPD. No mention is made of asbestosis. A St. Charles hospital report by Dr. K.F. dated in April 2007, regarding a March 27, 2007 consultation reflects that the Veteran reported that he had been a heavy smoker of 1 1/2 to two packs a day for over 45 years, and had quit approximately 13 years earlier. It was also noted that he had also worked for a major automobile manufacturer in the brake division during the 1970s and was exposed to asbestos. Dr. K.F. opined that the Veteran's "shortness of breath is secondary o both chronic obstructive lung disease and asbestosis. He needs a repeat computerized tomography scan of the chest . . ." He noted that "chest x-ray to me shows some bilateral pleural plaques. No acute infiltrates or effusions." May 4, 2007 correspondence from Dr. K.F. indicates that he treated the Veteran for management of his COPD and asbestosis. Dr. K.F. opined that the Veteran had had another exacerbation of his COPD. A May 16, 2007 report by Dr. K.F. does not mention asbestosis, but notes an exacerbation of COPD. St. Charles hospital radiology interpretation reports, dated in June 2007, reflect that the Veteran had COPD with no acute process or acute abnormality. No infiltrates or masses had developed. The reasons for the examinations were noted as dyspnea and COPD exacerbation. A June 23, 2007 St. Charles hospital emergency room report reflects that the Veteran had COPD exacerbation causing worsening dyspnea. A report of a June 23, 2007 St. Charles hospital admission history and physical, dated June 25, 2007, reflects that the Veteran had provisional diagnoses of acute bronchitis, COPD exacerbation, and asbestosis. A subsequently dictated St. Charles hospital consultation report reflects that the Veteran had acute exacerbation of COPD, acute bronchitis, and suspect underlying obstructive sleep apnea. July 2007 correspondence by Dr. K.F. reflects that the Veteran was seen for continued management of his severe COPD. The correspondence is negative for any mention of asbestosis. October 2007 correspondence by Dr. K.F. reflects that the Veteran was seen for continued management of his COPD. The correspondence is negative for any mention of asbestosis. Thus, the evidence reflects that based on his reading of an x-ray in March 2007, Dr. K.F. opined that the Veteran had pleural plaques and asbestosis. However, he also noted that the Veteran needed a computerized tomography scan of the chest. No such scan is associated with the claims file, and there is no evidence that it was done. A radiology report for the x-rays upon which Dr. K.F. based his opinion is not associated with the claims file. Moreover, it does not appear that a radiology report was prepared, as Dr. K.F. stated that his opinion was based on his reading of the x- rays. The Board also notes that Dr. K.F. referred to the Veteran as having asbestosis in April and May 2007 reports, but not in May, July, and October 2007 reports. Dr. K.F.'s finding of pleural plaques is contradictory to extensive x- ray evidence which was negative for pleural plaques. The Board finds that the claims file is negative for the required radiographic evidence of parenchymal lung disease. The evidence of record overwhelming indicates that x-rays of the Veteran's lungs did not reflect parenchymal lung disease and pleural plaques. As the evidence of record does not establish that the Veteran has a current diagnosis of asbestosis, service connection is not warranted. The Board notes that even if the Veteran had a current diagnosis of asbestosis, the evidence of record does not reflect that any such disability would be causally related to active service, a required element for service connection. Dr. K.F.'s reports, which reflect a diagnosis of asbestosis, refer to the Veteran's employment with an automobile manufacturer, working in the brake division in the 1970s, where he was exposed to asbestos. The report is negative for any mention of the Veteran's active service or possible causal relationship between the Veteran's respiratory disability and exposure to asbestos in service. Moreover, the Board notes that Dr. K.F.'s diagnosis of asbestosis is more than 52 years after separation from service. The Veteran's STRs are negative for any mention of asbestosis. A March 1956 report of medical history for separation purposes reflects that the Veteran complained of a history of shortness of breath. The physician's summary of the history reflects that the Veteran has shortness of breath after exercise which is attributed to excessive smoking. 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 asbestosis 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 asbestosis is denied. ____________________________________________ U. R. POWELL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs