Citation Nr: 1135726 Decision Date: 09/22/11 Archive Date: 10/03/11 DOCKET NO. 03-26 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously remanded by the Board for further development in March 2007. However, in June 2009, the Board determined the evidentiary record was not adequately developed in compliance with the prior remand instructions and therefore, was subsequently remanded again. Such has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's claimed asbestosis did not have its onset or increase in severity during service and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for asbestosis are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. 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 each claim. Duties to Notify and Assist 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; (3) that the claimant is expected to provide. In June 2003, November 2005, and April 2007 the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The April 2007 notice include the requirements pursuant to Dingess. Although this notice letter postdated the initial adjudication, no prejudice resulted as the claims were subsequently readjudicated without taint from the prior decision. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). It is, therefore, the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining post-service VA and private medical treatment records, and previously remanded by the Board in March 2007 and June 2009 for further development. Although there is no VA examination with a nexus opinion on file, none is required in this case. Such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because not all of these conditions have been met with respect to the service connection issue decided herein, as will be discussed below, a VA examination with nexus opinion is not necessary. The Board does not know of any additional relevant evidence which has not been obtained. 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). 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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic. " Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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). Regarding asbestos-related diseases, there is no specific statutory or regulatory provision, pertaining to exposure to asbestos. However, the VA Adjudication Procedure Manual, M21-1 (M21-1) [in December 2005, the M21-1 was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1], the opinions of the Court, and VA's General Counsel have a general framework. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. 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, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate claims of service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1 provides that when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (M21-1, Part III, par. 5.13(b); M21-1, Part VI, par. 7.21(d)(1); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (M21-1, Part VI, par. 7.21(d)(1). The M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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). M21-1, Part VI, par. 7.21(a)(1) & (2). Also, the M21-1 provides that for a clinical diagnosis of asbestosis, the record must show a history of exposure and radiographic evidence of parenchymal lung disease (M21-1, Part VI, par. 7.21(c)). In this case, the Veteran's service treatment records are not available for review, despite the RO's attempt to obtain them. A formal finding on the unavailability of the service records was made in January 2006. Accordingly, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Veteran contends that he has asbestosis as a result of his military service. Specifically, the Veteran contends that while aboard the USS HANCOCK, the pipes above his bunk would shake out asbestos dust whenever any of the ship's large guns were fired. He also indicates that when in port, his crew had to clean out the vents of the ship, which entailed cutting asbestos from around the vents to get to the bolts, releasing asbestos fibers into the air. Service personnel records confirm that the Veteran's military occupational specialty was Boatswain's Mate, though specific duties were not listed. In May 2007, the Board noted that it did not appear from the record that the Veteran's alleged exposure to asbestos has been confirmed or denied through official channels as required. See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Therefore, the Board stated a request must be made to the Navy Medical Liaison office at the National Personnel Records Center (NPRC) to determine the likelihood, based on the evidence of record, of the Veteran's exposure to asbestos. In a July 2011 emailed response from the Navy Asbestos Litigation Support Office stated a document dated October 1954 from the Commander of the Air Force, U. S. Pacific Fleet, to the Commander of the Puget Sound Naval Shipyard was located. This document discussed the ventilation study of the USS HANCOCK which contained several pages discussing the description of the ventilation, insulation, heat producing equipment, areas of insufficient ventilation, and recommendations. However, there is no discussion or mention of asbestos. Furthermore, according to a May 2002 the VA's Asbestos Claims Memorandum, reported a Boatswain's Mate had minimal probability of exposure to asbestos. There are no post-service VA treatment records reporting a current diagnosis or treatment for asbestosis or any asbestos related conditions. In an October 2007 letter from Dr. J. V. Scutero, the Veteran's private medical doctor, to M. G. Nassios, Veteran's attorney at the time, Dr. Scutero stated the Veteran did have a diagnosis of asbestosis. Dr. Scutero noted that in a September 1997 x-ray, the Veteran had "small opacities consistent with pneumoconiosis with perfusion of 1/0." The Veteran "worked as a carpenter starting in 1966. He worked in industrial sites and steam plants. He built and took down scaffolding for insulators and pipefitters. He worked in the same area as insulators, pipefitters and welders using asbestos materials." Therefore, based on the medical evidence and the Veteran's prior employment, Dr. Scutero opined, "[b]ased on this information, that is, the work history... and the pulmonary fibrosis seen on chest x-ray, I feel that [the Veteran] does have asbestosis. I do make this diagnosis with a reasonable degree of medical certainty." After consideration of the entire record and the relevant law, the evidence of record does not provide a basis upon which to establish service connection for asbestosis. While it is appears that the Veteran currently has a diagnosis, the medical evidence of record as a whole does not support the Veteran's argument that his condition is related to service. The evidence regarding the history of the USS HANCOCK does not suggest the Veteran's duties placed him at a high risk for asbestos exposure. Even assuming arguendo that the Veteran was exposed to asbestos on board the USS HANCOCK or at any other occasion during service, Dr. Scutero's October 2007 determination does not suggest the Veteran's asbestosis is related to his military service. Rather, Dr. Scutero based his determination on the Veteran's exposure to asbestos during his post-service employment as a carpenter. In addition, there is no objective medical evidence within the record demonstrating an etiological relationship between the origin and/or severity of any asbestos-related condition and service, including any in-service asbestos exposure. Furthermore, despite the Veteran contention that his asbestosis is related to in-service exposure to asbestos, where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his opinion because he is not a medical health professional and his opinion does not constitute competent medical authority. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Here, while the Veteran is competent to describe his symptoms, he is not competent to comment on the etiology of the condition. Moreover, asbestosis is not a condition under case law that have been found to be capable of lay observation, and the determination as to the presence or diagnosis of such disabilities is therefore medical in nature. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (on the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Asbestosis is not a simple medical condition, such as a broken leg, because the conditions cannot be perceived through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (personal knowledge is that which is perceived through the use of the senses). For this reason, the Board determines that asbestosis is not simple medical condition that a lay person is competent to identify. After carefully considering the evidence in the claims file, the Board finds there is no probative medical evidence suggesting a link between the Veteran's period of service and his claim of entitlement to service connection for asbestosis. Since there is no nexus between service and the current diagnosis of asbestosis, service connection cannot be granted. For the reasons stated above, the Board finds that a preponderance of the evidence is against the claim of entitlement to service connection for asbestosis, thus the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for asbestosis is denied ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs