Citation Nr: 1237798 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-12 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a pulmonary disorder due to asbestos exposure, to include mesothelioma. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to December 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the Veteran's claims of entitlement to service connection for mesothelioma and pleural plaques. The Veteran submitted a notice of disagreement (NOD) with these denials in October 2009, and timely perfected his appeal in March 2010. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. In his March 2010 substantive appeal [VA Form 9] he declined the option of testifying at a personal hearing. Recharacterization of Issue on Appeal The Veteran originally filed a claim of entitlement to service connection for mesothelioma. As is discussed in more detail below, the medical evidence of record indicates that he has been diagnosed with pleural plaques. Although not claimed by the Veteran, the Board is expanding his original claim to include all pulmonary disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) [a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is.] In Bernard v. Brown, 4 Vet. App. 384 (1993), the United States Court of Appeals for Veterans Claims (Court) held that before the Board may address a matter that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities. Although the RO, which was obviously without the benefit of Clemons, denominated the claim as one for mesothelioma, the Board finds that the Veteran was not prejudiced thereby. The RO, in a letter dated in August 2008, asked for evidence of "a relationship between your current disability and an injury, disease, or event in military service." Accordingly, he is not prejudiced by the Board's expansion of the issue at bar. Issue Not in Appellate Status In a February 2010 rating decision, the RO granted the Veteran's claim of entitlement to service connection for pleural plaques, assigning a noncompensable disability evaluation. The Veteran submitted a NOD with this assignment in March 2010. In June 2012, the RO issued a rating decision that increased the Veteran's disability rating for pleural plaques from noncompensable to 10 percent disabling, effective from June 12, 2012. Though this increase did not constitute a full grant of the benefit sought [see AB v. Brown, 6 Vet. App. 35, 39 (1993)], the Veteran failed to submit a timely appeal. Even if the Board were to consider the Veteran's Informal Hearing Presentation in lieu of a VA Form 9, it was not received within 60 days of the issuance of the June 21, 2012 statement of the case. Thus, the issue of entitlement to an initial compensable disability rating for pleural plaques prior to June 12, 2012, and from 10 percent thereafter, is not in appellate status and will not be addressed any further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a NOD initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). See 38 U.S.C.A. § 7107(a)(2) (West 2002). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. The Veteran served in the United States Navy as a metalsmith; therefore, VA concedes exposure to asbestos during his time in active duty service. 2. The Veteran has a current diagnosis of pleural plaques, for which he is service-connected. 3. The Veteran is not competent to diagnose himself with mesothelioma or any other pulmonary disorder, and no competent medical evidence of record demonstrates that he has been diagnosed with such. 4. The preponderance of the evidence is against a finding that the Veteran currently suffers from a pulmonary disorder, to include mesothelioma due to asbestos exposure, as a result of a disease or injury in active duty service. CONCLUSION OF LAW A pulmonary disorder, to include mesothelioma, was not incurred in or aggravated by active duty service, to include as a result of exposure to asbestos. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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. Prior to initial adjudication of the Veteran's claim, a letter dated in August 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. This letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are 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); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not indicated that he is in receipt of Social Security Administration disability benefits for a pulmonary disease. The Board has also reviewed the Veteran's electronic Virtual VA file, to which no additional evidence has been associated. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The record indicates that the Veteran participated in a VA examination in December 2008, the results of which have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The Veteran contends that he is entitled to service connection for a pulmonary disorder, to include mesothelioma. He essentially states that this disability developed as a result of his in-service asbestos exposure while serving in the United States Navy as a metalsmith. The Board disagrees. Governing Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). 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. See 38 C.F.R. § 3.303(b) (2012). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may 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) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and bronchiectasis, sarcoidosis, or active tuberculosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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 certain procedures on asbestos-related diseases that provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea; 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. 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. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. Moreover, the risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is pre-service or post service occupational or other asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9.f. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the Court also indicated that, while the veteran, as a lay person, is not competent to testify as to the cause of his disease, he is competent to testify as to the facts of his asbestos exposure. See McGinty, 4 Vet. App. at 432 (1993). Analysis In the present case, the Veteran has described having been exposed to asbestos while stationed aboard the USS Belle Grove in approximately 1952 and 1953. In his October 2009 NOD, the Veteran reported that both at sea and while in dry dock, in his capacity as a metalsmith, he was required to work with air-powered cutters and chipping hammers to remove asbestos from his ship. See NOD, October 20, 2009. The Veteran's service personnel records reflect that he served aboard the USS Belle Grove during his time in active duty service. Given the Veteran's Navy service and his highly credible descriptions of his duties in service, the Board will presume that he was exposed to asbestos during his military service. The Board notes that the Veteran has not claimed, and the record does not document, any diagnosis of bronchiectasis, sarcoidosis, or active tuberculosis at any time throughout the appeal period. Accordingly, service connection under the presumptive regulations is not applicable in this case. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). With respect to Shedden element (2), in-service disease or injury, the Veteran's service treatment records are negative for any complaints, findings, or diagnosis of pulmonary problems. They are also negative for asbestosis or another asbestos-related disease. Since no pulmonary problem was found on examination at separation, and the Veteran does not so contend, the Board finds that there was no evidence of a chronic pulmonary disorder at separation. See 38 C.F.R. § 3.303(b) (2012). As such, the Veteran has failed to establish element (2) under Shedden. See Shedden, supra. As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's claim for service connection for a pulmonary disorder. See 38 C.F.R. § 3.303(b) (2012). The first post-service clinical evidence of a diagnosis of a lung disorder is dated in December 2005, more than 50 years after the Veteran's discharge from military service. Furthermore, at that time the Veteran was diagnosed with only one pulmonary disability, pleural plaques (which were referred to as asbestosis in the June 2012 VA examination), for which he is already service-connected. Review of the remaining evidence of record, including VA and private treatment records as well as the December 2008 VA respiratory disorders examination report, did not reveal any additional pulmonary diagnoses, including for mesothelioma. It is acknowledged that in some circumstances, lay evidence can establish a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Here, however, none of the criteria set forth in Jandreau have been met, and therefore the lay evidence of record does not establish current disability in this case. Thus, the Board finds that service connection for a pulmonary disorder due to asbestos exposure, to include mesothelioma, cannot be awarded because such has not been competently diagnosed at this time. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection cannot be granted if the claimed disability does not exist); see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Accordingly, the Veteran's claim fails on the basis of Shedden element (1), current diagnosis. See Shedden, supra. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a pulmonary disorder due to asbestos exposure, to include mesothelioma, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs