Citation Nr: 1121482	
Decision Date: 06/02/11    Archive Date: 06/09/11

DOCKET NO.  09-42 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon


THE ISSUE

Entitlement to service connection for right lung calcification.


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from August 1948 to July 1952.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by which the RO denied entitlement to service connection for calcification of the right lung.  

In October 2010, the Board remanded this matter to the RO via the Appeals Management Center in Washington, DC.  


FINDINGS OF FACT

The competent and probative evidence of record does not show causal connection between right lung calcification and service.  


CONCLUSION OF LAW

Right lung calcification was not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1110, 1131, 5105 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA) 

As provided for by 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2008 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence.  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  In this case, notice consistent with the Court's holding in Dingess was provided in September 2008.  

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical 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 Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the service treatment records and service personnel records as well as private medical records.  The Veteran was afforded a VA medical examination in furtherance of his claim.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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).

Standard of Review 

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Law and Regulations 

Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  

Service connection may also 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).

There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases.  Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions from the DVB Circular are included in a VA Adjudication Procedure Manual, M21-1MR, Part IV. ii.2.C.9 (Dec. 13, 2005).  The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

The guidelines provide that the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease.  M21- 1MR, Part IV.ii.2.C.9(d).  It is noted that 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.  M21-1MR, Part IV.ii.2.C.9(b).  The guidelines identify that inhalation of asbestos fibers can produce fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate.  Id.

The Court has further held that in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed.  See Ashford v. Brown, 10 Vet. App. 120 (1997).  The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  M21-1MR, Part IV.ii.2.C.9(e).  When deciding a claim for service connection for a disability resulting from exposure to asbestos, rating specialists must determine whether or not service records demonstrate the Veteran was exposed to asbestos during service, ensure that development is accomplished to determine whether or not the Veteran was exposed to asbestos either before or after service, and determine whether or not a relationship exists between exposure to asbestos and the claimed disease, keeping in mind latency and exposure factors.  M21-1MR, Part IV.ii.2.C.9(h).

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.  M21-1MR, Part IV.ii.2.C.9(f).  High exposure to respirable 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.  M21-1MR, Part IV.ii.2.C.9(g). 

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.  VA O.G.C. Prec. Op. No. 04-00.


Factual Background 

The service personnel records show that the Veteran served in the Air Force and that he served as a clerk in a supply squadron.  Those records also confirm that he served in Japan.  

In his claim for benefits, the Veteran indicated that all barracks were insulated with asbestos and that warehouses all had pipes insulated with asbestos.  He also alleged exposure to asbestos aboard ship en route to Japan and during his return stateside.  The Veteran maintains that his right lung calcification is due, at least in part, to asbestos exposure in service.

A July 2008 computed tomography scan report indicated right lung calcification suggestive of asbestos exposure.  This is the first indication in the record of a right lung condition.

In his February 2009 notice of disagreement, the Veteran asserted that the heating system and ducting in the barracks were externally insulated with asbestos.  Further, he stated that the heating system and ducting at his duty stations were externally insulated with asbestos.  Finally, he alleged that during transport to and from Japan, the ducts and pipes over his bunk aboard ship were externally insulated with asbestos.  He added that there was post-service asbestos exposure while employed in the construction sector for six months and with the Shell Chemical Company for approximately a decade.  

On VA examination in November 2010, the Veteran reported that prior to service, he worked on his family's farm where no asbestos exposure took place.  He also worked at the Shell Chemical Company as an intermittent laborer.  He indicated that asbestos exposure could have occurred prior to service as a result of his association with the Shell Chemical Company.  The Veteran's statements regarding pre-service employment are consistent with information in his service personnel records.  The Veteran further indicated that during service he was an Air Force supply clerk and indicated that pipes delivering steam heating in the barracks were lined with asbestos and the ships transporting him overseas had asbestos lining the piping.  The Veteran asserted that there was no supportive material wrapped around the asbestos.  The Veteran denied having to tear down, repair, or clean any asbestos insulation.  The Veteran again reported pre and post service exposure to asbestos at the Shell Chemical Company.  Following an examination of the Veteran, the examiner diagnosed asbestosis.  The examiner noted that it was possible that the Veteran was exposed to asbestos during service, but he indicated that research showed that exposure to low levels of asbestos possibly increased the risk of malignant mesothelioma but not of asbestosis.  The health risk to occupants of buildings in which asbestos was in good repair and undisturbed was not considered significant.  The examiner did not know whether the asbestos in the Veteran's in-service environment was in good repair.  The examiner further opined that the Veteran's post-service asbestos exposure, while doing construction work and at the Shell Chemical Company, probably entailed more direct and consistent asbestos exposure.  The examiner concluded that it was possible that the Veteran was exposed to asbestos during service which contributed to the Veteran's current pulmonary disorder, however, there was not a 50 percent or higher probability that in-service asbestos exposure, if it indeed occurred, contributed to the Veteran's current condition.

In June 2009, a private physician noted a history of cigarette smoking with inhalation, a history of primarily moderately direct and bystander exposure to asbestos, chronic obstructive pulmonary disease secondary to smoking, and asbestosis secondary to asbestos exposure as well as asbestos-related pleural disease secondary to asbestos exposure.

Discussion

The record does not show that during the service, the Veteran performed work associated with asbestos exposure or that he served aboard ship.  There is evidence that he was stationed in Japan and presumably was transported there by ship.  As to his allegations of asbestos exposure in service, it is possible, although not documented, that the Veteran was exposed to asbestos in service.  

After a full review of the record, the Board finds that the preponderance of the probative and competent evidence is against the claim of service connection for a lung condition.    

Right lung calcification due to asbestos exposure has been diagnosed.  The Veteran's disease was also characterized as asbestosis.  No matter the diagnosis, both have been attributed to asbestos exposure.  The question is whether the current disability is related to asbestos exposure in service.  The most probative evidence of record is the November 2010 VA examination report.  The examiner reviewed the claims file and examined the Veteran, taking a full history of the claimed inservice asbestos exposure and post service occupational asbestos exposure.  The examiner indicated that it was possible that the Veteran was exposed to asbestos during service but also pointed out the Veteran's reported history of significant asbestos exposure after service.  The examiner indicated that there was less than a 50 percent chance that in-service asbestos exposure caused the claimed disability.  There is no contrary medical opinion.  Thus, pursuant to this opinion, and because there is no other competent evidence of a nexus between the claimed disability and service, service connection for right lung calcification is denied.  38 C.F.R. § 3.303.  

The Board observes that while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); but see Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  As such, as lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability.  Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

In short, because the preponderance of the competent evidence is against the Veteran's claim, the evidence is not in relative equipoise, and the benefit of the doubt rule cannot be applied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra; Alemany, supra.

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ORDER

Service connection for right lung calcification is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs