Citation Nr: 1042470 Decision Date: 11/10/10 Archive Date: 11/18/10 DOCKET NO. 07-32 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lung disorder, to include asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from January 1962 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified at a Board hearing in August 2008. In December 2008 and February 2010, the Board remanded the claim for additional evidentiary development. The case has now been returned for further appellate review. FINDING OF FACT The preponderance of the evidence is against finding that a lung disorder, to include asbestosis, is etiologically related to active military service. CONCLUSION OF LAW A lung disorder, to include asbestosis, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010`). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, the Veteran was sent a letter in June 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at an August 2008 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. 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. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. 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). The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases that provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; McGinty v. Brown, 4 Vet. App. 428 (1993). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21-1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1, part VI, para. 7.21(a)(1). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(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. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21(b). In 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. VAOPGCPREC 4-00. 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. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). Background In this case, the Veteran contends that he currently suffers from a respiratory disorder due to his exposure to asbestos in service. He has alleged in statements and through testimony at the August 2008 hearing that he was exposed to asbestos in service while on board his ship, the USS FRANKLIN D. ROOSEVELT, through his job as an electrician and through the ship's insulation to include insulation in his sleeping quarters. Service personnel records show that the Veteran's specialty was EM, Electrician's Mate. A report of record of asbestos exposure according to specialties shows that for Electrician's Mates, there was probable asbestos exposure. Lay statements submitted in support of the claim by fellow servicemen also note that they were exposed to asbestos on board the ship The service treatment records reveal that the Veteran complained of and was treated for pain upon taking deep breaths, difficulty breathing, and a productive type cough with a sore throat in June 1965. It was noted that the pain was of unknown etiology. Subsequent in-service records did not reference complaints or treatment associated with the Veteran's lungs or breathing. The separation examination in April 1966 was normal. Following service, clinical records reflect that the Veteran started to complain of breathing problems and coughing in 1986. The Veteran underwent a private asbestos evaluation in March 2001. He provided a history of post-service asbestos exposure while working for Georgia Pacific as an electrician. He denied smoking cigarettes. The examiner noted that a December 1999 chest x-ray indicated pleural and parenchymal abnormalities consistent with asbestosis. However, it was also noted that pulmonary function testing had not yet revealed signs of impairment as a result of the Veteran's asbestos exposure. In the assessment, the examiner noted that the Veteran had a history of occupational exposure to friable asbestos materials and an adequate latency period, and that he now demonstrates pleural and parenchymal abnormalities on chest x-ray as a result of his asbestos exposure. Private treatment records show that in 2006 the Veteran developed a nodule in his left lower lung which was surgically removed and determined to be squamous cell carcinoma. In an April 2007 statement, the Veteran stated that he experienced possibly an hour per day of exposure to asbestos while working as an electrician. At the Board's hearing in August 2008, the Veteran testified that while he worked as an electrician after his service, his exposure to asbestos in his civilian job was minimal, averaging 5 percent or less of his workday. He explained that he was an on-call electrician and, consequently, was not around the pipes and equipment which contained asbestos on a continuous basis. Lay statements from the Veteran's co-workers submitted in September 2008 state that the Veteran's exposure to asbestos in his civilian job was minimal and that there was minimal, if any, asbestos in the mill where they all worked. The Board remanded the case in December 2008 to afford the Veteran a VA examination to determine the nature and etiology of any lung disability present, to include asbestosis. The Veteran underwent a VA examination in April 2009. The examiner indicated that he reviewed the treatment records in the claims file, including the March 2001 record diagnosing asbestosis and 2006 treatment records indicating a left lower lobectomy due to lung cancer. The examiner stated that the Veteran had a 25-year or more history of smoking although he no longer smoked. The examiner's diagnoses were obstructive pulmonary disease (COPD), including bronchitis and emphysema. Upon reviewing the evidence, the examiner stated that the Veteran had probable exposure to asbestos during service. Yet, the examiner also stated that, while the Veteran's narrative history was suggestive of asbestos exposure, the dust that the Veteran described in his accounts of service was not confirmed to be asbestos. Regarding the March 2001 treatment record diagnosing asbestosis, the examiner stated that the x-ray description contained therein indicated changes in the lungs consistent with asbestosis. However, the examiner reported that as he did not have a copy of the x-ray, he could not confirm the March 2001 examiner's finding. He also stated that 2006 treatment records regarding the lobectomy did not mention any changes in the lungs related to asbestos. As such, the examiner said, even with the Veteran's probable in-service exposure to asbestos, he could not say without speculation whether the Veteran had asbestosis or simply COPD. He also indicated that he could not say without speculation whether the Veteran's lung cancer, treated by a lobectomy in 2006, was secondary to asbestos exposure or to his smoking history or other factors. In a December 2009 statement, the Veteran reported that he had only smoked for a very short period during his life, and at the time of his lung surgery, he had not smoked for more than 20 years. In light of the April 2009 VA examiner's conflicting statements with regard to the Veteran's in-service exposure to asbestos and his failure to acknowledge the March 2001 treatment record, the Board remanded the claim in February 2010 for further VA examination. The Veteran underwent a VA examination in March 2010. The examiner indicated that he had reviewed the Veteran's claims file, to include the April 2009 VA examination report, the March 2001 treatment record, and the 2006 pathology report obtained as a result of the left lower lobectomy. The examiner did note that the Veteran smoked a pack of cigarettes a day from age 25 to 45, at which point he quit. He also noted that a chest x-ray taken in April 2009 did not show any evidence of asbestosis. The Veteran was diagnosed as having COPD. The examiner noted that pulmonary function tests performed in April 2009 showed evidence of restrictive and obstructive lung disease. He also noted the Veteran's history of asbestos exposure. He felt that the Veteran's bouts of bronchitis were most likely related to his smoking. He reported that there is no mention made of asbestos fibers or asbestos changes in the surgical specimen of 2006. He indicated that the chest x-ray conducted in 2009 also did not show any evidence of asbestos related lung disease so even granted that the Veteran was exposed to asbestos he could not say without speculation that he has any evidence of asbestos related lung disease at this point. He did report that the Veteran did have evidence of COPD related to his smoking. The examiner wanted to repeat the chest x-ray and pulmonary function tests but based on the evidence at hand, it was his opinion that it was less likely than not that the Veteran had asbestos related lung disease. In a subsequent March 2010 addendum, the examiner noted that he had reviewed the results from current chest x-ray and pulmonary function tests. He reported that the chest x-ray did not show any evidence of asbestosis. He indicated that the Veteran's Diffusion Capacity of the Lung for Carbon Monoxide (DLCO) was essentially normal. After reviewing the lab work, the examiner determined that no change was warranted from his previous diagnosis. Analysis While the Veteran's statements and testimony regarding his exposure to asbestos during service are accepted as true, the most probative medical evidence in this case preponderates against the Veteran's claim. The Board notes that the record contains a diagnosis consistent with asbestosis in a March 2001 private treatment report. However, the examiner related the Veteran's diagnosis of asbestosis to his post-service exposure to asbestos as an electrician. Consequently, the 2001 private examiner's opinion is insufficient to show that a diagnosis of asbestosis is related to events incurred during active service. The March 2010 VA examiner, on the other hand, acknowledged that the Veteran was diagnosed as having asbestosis in March 2001 on chest-ray but noted that the disorder was not shown on pulmonary function testing. Moreover, the examiner emphasized there was no evidence of asbestos-related disease on the 2006 pathology report or chest x-rays and pulmonary function tests conducted in 2009. In addition, chest x-rays and pulmonary function tests conducted in 2010 also failed to show any evidence of asbestosis. Thus, the examiner found that the Veteran did not have an asbestos- related lung disease at the present time. The opinion was based upon a comprehensive review of the claims folder and it was supported with clinical data and was accompanied by a clear rationale. In addition, there is no medical evidence or competent opinion of record which links the Veteran's lung disorder, currently diagnosed as COPD, to his period of active military service. The first post-service medical evidence of record of COPD is in April 2009, over 43 years after his separation from the military. The evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the March 2010 VA examiner linked the Veteran's COPD to his history of smoking. In this regard, the Board notes that Congress has prohibited the grant of service connection for disability on the basis that such disability resulted from disease attributable to the use of tobacco products during a Veteran's active service for claims filed after June 9, 1998. 38 U.S.C.A. § 1103 (West 2002). The Veteran genuinely believes that he has a lung disorder which was incurred in service. His factual recitation as to exposure to asbestos during service is accepted as true. While laypersons are not categorically precluded from offering medical opinions, such opinions are only competent in cases involving a readily observable cause-and-effect relationship, like a fall leading to a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran lacks medical training and expertise, he cannot provide a competent opinion on a matter as complex as the etiology of his current lung disorder, and his views are of no probative value in this particular case. In any event, even if his opinion was entitled to some probative value, it is far outweighed by the more persuasive medical opinion of record. For the above reasons, the preponderance of the competent medical evidence is against finding that a lung disorder, to include asbestosis, was caused or aggravated by active military service. Service connection is therefore denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a lung disorder, to include asbestosis, is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs