Citation Nr: 1103916 Decision Date: 01/31/11 Archive Date: 02/08/11 DOCKET NO. 05-14 750 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for pulmonary/respiratory disability, to include asbestosis, claimed as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) from January 1960 to August 1960, from July 1961 to October 1961, and during July 1962, in the South Carolina Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2004 rating decision in which the RO, inter alia, denied service connection for asbestosis. In January 2005, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2005. In his substantive appeal, the appellant requested a hearing before RO personnel; he subsequently withdrew this request on the scheduled June 2005 hearing date. In July 2007, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim (as reflected in a September 2009 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. In November 2009, the Board, again, remanded the claim on appeal to the RO, via the AMC, for further action, to include providing a VA examination. After completing the requested action, the AMC continued to deny the claim (as reflected in a September 2010 SSOC) and returned this matter to the Board for further appellate consideration. Consistent with the record and what the RO/AMC has actually adjudicated, and to give the appellant every consideration in this appeal, the Board has recharacterized the issue on appeal, as reflected on the title page. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Objective evidence of record does not establish that the appellant was exposed to asbestos during ACDUTRA. 3. Although the appellant does not have a definitive diagnosis of asbestosis, he has been diagnosed has interstitial fibrotic changes of his lungs, which has been attributed to post-service asbestos exposure, as well as chronic obstructive pulmonary disease attributed to a history of smoking, not asbestos exposure. CONCLUSION OF LAW The criteria for service connection for pulmonary/respiratory disability, to include asbestosis, claimed as due to in-service asbestos exposure, are not met. 38 U.S.C.A. §§ 101 (22), (24), 1101, 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a November 2003 pre-rating letter, the RO provided notice to the appellant explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The March 2004 rating decision reflects the initial adjudication of the claim after issuance of this letter. Post rating, a July 2005 letter provided notice to the appellant regarding how to establish in-service exposure to asbestos, and a July 2007 letter included information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the above-described notice, and opportunity for the appellant to respond, the RO readjudicated the claim on appeal, as reflected in the September 2009 and September 2010 SSOCs. Hence, the appellant is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (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 in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, private treatment records, Social Security Administration records, VA treatment records, and the report of a May 2010 VA examination. Also of record and considered in connection with this matter are various written documents provided by the appellant and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with this claim is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the appellant has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The appellant essentially alleges that he has a diagnosis of asbestosis, which is due to exposure to asbestos while serving on ACDUTRA at Fort Knox, Kentucky and Fort Jackson, South Carolina. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service 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 observes that, with respect to the appellant's National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. 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 that 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's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the appellant's claim of entitlement to service connection for asbestos-related disease 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 Adjudication Procedure Manual contains guidelines for the development of asbestos exposure cases. The guidelines indicate that inhalation of asbestos fibers 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). The manual also acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in the manufacture and servicing of friction products, such as clutch facings and brake linings. Also noted is that the latent period 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). Additionally, the manual 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. See also VAOPGCPREC 4- 2000 (April 13, 2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The Board also points out that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and that there is no presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Considering the record in light of the above, the Board finds that the claim for service connection must denied. The appellant argues that he was possibly exposed to asbestos while on ACDUTRA at Fort Jackson in 1960 and Fort Knox in 1961. The appellant states that in October 1961, he was moved out of the barracks, and the barracks were sealed and draped in plastic for an unknown reason. The appellant also worked in the construction industry for approximately 40 years after service. A November 2004 VA outpatient note reflects that the appellant reported that he had post-service asbestos exposure from tearing down walls and insulation from pipes. The appellant also noted at his May 2010 VA examination that he possibly had post-service asbestos exposure sometime during 1967 or 1968. In August 2008, the RO contacted the South Carolina Adjutant General to determine if asbestos was used at Fort Jackson and/or Fort Knox at any time during the period of January 1960 to October 1961. A response was received by VA in October 2008, noting that no information was found regarding any use of asbestos at the specified locations. VA treatment records from November 2004 and January 2005 reflect that the appellant was diagnosed with interstitial lung disease. The appellant informed his physician that he was exposed to asbestos when stripping off pipes and tearing down walls during his construction work. No mention of in-service exposure was noted. The physician noted that the appellant's diagnosis of interstitial lung disease "may very well represent asbestosis." The physician ordered a bronchoscopy, noting that if the results were unrevealing for infection or other interstitial lung diseases, then a clinical diagnosis of asbestosis would be appropriate. The appellant subsequently underwent a bronchoscopy, where culture specimen revealed no evidence of infection or malignancy. Interstitial fibrotic changes were noted. These findings, together with the clinical history, were found to be "suggestive of asbestosis." On VA examination in May 2010, the appellant asserted that he may have been exposed to asbestos, although he was unsure, when he was abruptly removed from the barracks at Fort Knox in 1961. The appellant stated that he had post-service experience in construction, where he had a possible one month exposure sometime in 1967 or 1968. The appellant had over a 100 pack-per-year smoking history. The appellant had dyspnea on exertion walking 100 yards with no shortness of breath at rest. He had a chronic cough. The appellant used oxygen in the daytime, and his weight was stable. On examination, the appellant had no dyspnea. Lungs were clear to auscultation and percussion. A chest x-ray from February 2010 revealed cardiomegaly with chronic interstitial mid-lung field changes that may represent interstitial disease with paraseptal emphysematous changes. After reviewing the appellant's medical record and claims file, the physician noted that the appellant clearly had some interstitial lung disease, as well as some pulmonary fibrosis. The appellant had no evidence of pleural plaques or pulmonary masses. In the absence of known asbestos exposure, and in the absence of pleural plaquing, which would be confirmatory evidence that the appellant had a past history of asbestos exposure, and in the absence of a tissue diagnosis, the physician found that it would be purely speculative to opine whether the appellant's abnormal findings on pulmonary imaging were in fact asbestosis. It was clear, however, that the appellant had chronic obstructive pulmonary disease secondary to his long smoking history, as well as sleep apnea. Neither of these diagnoses was considered secondary to asbestos exposure. The physician clearly explained why he was unable to definitively diagnose asbestosis, in the absence of pleural plaquing, which would confirm the disability, or a tissue diagnosis. While he did diagnose chronic obstructive pulmonary disease, the physician attributed such disability to the Veteran's long history of cigarette smoking, not asbestosis. Thus, the May 2010 physician's opinion does not support the Veteran's assertion that he has asbestosis or other pulmonary/respiratory disability due to in-service asbestos exposure. The record also reflects that the appellant has been diagnosed with interstitial lung disease; however, that disorder has been related to post-service asbestos exposure of tearing down wall and stripping insulation from pipes. The Board points out that the record includes nothing to support the appellant's assertions that he was exposed to asbestos in service or that his interstitial lung disease or other current pulmonary/respiratory disorder ia related to in-service asbestos exposure in service. Upon inquiry, the South Carolina Adjutant General stated that there were no documented findings of asbestos at the locations where the appellant was posted for ACDUTRA. Even the appellant admitted at his VA examination, that he was unsure if the barracks contained asbestos when he was moved from there in 1961. He did, however, admit to post-service exposure from tearing down walls and stripping insulation from pipes, and a VA physician diagnosed him with interstitial lung disease (suggestive of asbestosis) due to this post-service exposure. Significantly, neither the appellant nor his representative has presented any medical or other objective evidence to support the appellant's claim. Furthermore, as for any direct assertions by the appellant and/or his representative that the appellant has asbestosis, or that there exists a medical nexus between current pulmonary/respiratory disability and his ACDUTRA, such evidence provides no basis for allowance of the claim. The matters of diagnosis and etiology upon which this claim turns are ones within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the appellant nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is not competent to render a probative (persuasive) opinion on such a medical matter-namely, whether any alleged in- service exposure of asbestos caused a current lung disability. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for asbestosis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports a finding that the appellant has asbestosis or other pulmonary/respiratory disability due to in- service asbestos exposure, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection pulmonary/respiratory disability, to include asbestosis, claimed as due to in-service asbestos exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs