Citation Nr: 1212774 Decision Date: 04/06/12 Archive Date: 04/11/12 DOCKET NO. 09-17 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as asbestosis. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from November 1944 to July 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran originally filed a claim of entitlement to service connection for asbestosis. However, the medical evidence of record indicates that the Veteran has been diagnosed with moderate restrictive disorder, another respiratory disorder. Although not claimed by the Veteran, the Board is expanding his original claim to include all respiratory disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This case was previously before the Board in August 2010 at which time the claim was remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no current diagnosis of asbestosis. 2. There is no evidence of a respiratory disorder in service and no competent medical evidence linking the Veteran's current moderate restrictive disorder with his period of service. CONCLUSION OF LAW Service connection for a respiratory disorder, to include asbestosis is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the Veteran's assertion that a respiratory disorder, to include asbestosis is related to his service with the United States Coast Guard Merchant Marines from November 1944 to July 1945. Specifically, the Veteran argues that he was exposed to asbestos during military service and that his current respiratory problems are related to this asbestos exposure. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intervening causes; however, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Brannon v. Derwinski, 1 Vet. App. 314, 315 (1991). As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, 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 were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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 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. 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). See 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. Factual Background The RO has made several attempts to obtain copies of the Veteran's service treatment records, but it appears that these records are unavailable. In the August 2010 Board remand the Board requested that the RO make a request to the National Personnel Records Center (NPRC) for the Veteran's service treatment records. A September 2010 VA memorandum indicated that the Board's request was improperly directed as it is not possible to request service treatment records for Merchant Mariners who served under the jurisdiction of the United States Coast Guard as these seamen do not have a medical file as such, referring to M21-1MR III.iii.2.F.40. Instead, service treatment records for Merchant Mariners were under the jurisdiction of the United States Coast Guard. It was also noted that these Merchant Mariners were eligible to receive medical treatment at the Public Health Service (PHS) hospitals, and that PHS did have microfilm copies of certain medical records. In response to this memorandum the RO requested records from the United States Coast Guard in November 2010, December 2010, and March 2011. No response has, as of yet, been received. The Board also requested records from the Director of Public Health Data in November 2010 and received a response in December 2010 requesting that the RO identify the name(s) of the Public Health Service Hospital or Clinic that provided services to the Veteran along with the approximate year of treatment next to the location. In January 2011 the RO requested this information from the Veteran but no response was received. As such, the Board finds that any further search for the Veteran's service treatment records would be futile. The Board notes that in a case where the service treatment records are unavailable, VA has a heightened obligation to explain its findings and conclusions, and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Post-service medical records show that the Veteran was involved in litigation regarding exposure to asbestos during maritime service in the early 1990s. An October 1993 statement from Dr. R.A.R., an associate professor of medicine, addressed to the Maritime Asbestosis Legal Clinic notes that Dr. R.A.R. reviewed a chest x-ray of the Veteran. Dr. R.A.R. noted small irregular shaped opacities seen in the left base and right pleural thickening and noted that chest x-ray changes such as these were often seen following asbestos exposure and were compatible with a diagnosis of asbestosis. The Veteran submitted a claim for service connection for asbestosis in February 2007. The Veteran was afforded a VA respiratory examination in December 2007. A chest computed tomography (CT) revealed no evidence of interstitial fibrosis or emphysema. The examiner noted that there was no evidence of asbestosis and, instead, diagnosed the Veteran with moderate restrictive disorder. Notably, the December 2007 VA examiner did not review the claims file in connection with the examination as the claims file was unavailable at that time. Pursuant to the August 2010 Board remand the December 2007 VA examiner was asked to review the claims file and opine whether the Veteran's moderate restrictive disorder had its onset during his military service or was etiologically related to the Veteran's military service. In September 2010 the December 2007 VA examiner reviewed the claims file and opined that the Veteran's moderate restrictive disorder was not etiologically related to the Veteran's military service. Most likely more common causes of restrictive lung disease were kyphosis of the chest wall or obesity. The examiner noted that there was no evidence of intrinsic lung disease. The pulmonary lung parenchyma in the CAT (computerized axial tomography) scan was relatively normal in the CAT scan of the chest that was done at the time of the December 2007 VA examination. Also of record are VA treatment records dated from June 2000 through May 2008 and a private treatment record from Dr. D.M.C. dated in March 2002. Notably, while these records show treatment for a respiratory disorder they do not relate the Veteran's respiratory disorder to his military service, to include his alleged exposure to asbestos. Significantly, the March 2002 private treatment record showed no definite evidence of calcified pleural plaque and a May 2008 VA chest CT showed nor changes in comparison to the December 2007 VA chest CT. Analysis The Board finds that the preponderance of the evidence is against service connection for a respiratory disorder, to include asbestosis. First, there is no evidence of a definitive diagnosis of asbestosis. As above, the December 2007 VA examiner indicated that the Veteran did not have a diagnosis of asbestosis, contrary to his reported history. While the October 1993 statement from Dr. R.A.R. shows that, at the time, the Veteran's chest x-ray was compatible with a diagnosis of asbestosis, no definitive diagnosis of asbestosis was made at that time. Service connection requires evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Second, there is no competent medical evidence in the record that links any current respiratory disorder, to include moderate restrictive disorder to an incident of the Veteran's active military service. In fact, in a September 2010 addendum the December 2007 VA examiner opined that the Veteran's moderate restrictive disorder was not etiologically related to the Veteran's military service and was instead most likely due to kyphosis of the chest wall or obesity. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, 451 F.3d at 1331. Here, however, any statements as to continuous respiratory problems since service are not found to be persuasive in light of the fact that the record is silent for such problems until the early 1990s. For these reasons, continuity of symptomatology has not here been established, either through the medical evidence or through the Veteran's statements. In short, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for a respiratory disorder, to include asbestosis, and the appeal is denied. The benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in March 2007. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence to include VA treatment records, afforded the appellant an adequate physical examination, obtained a medical opinion as to the etiology of the Veteran's respiratory disorder, and afforded the appellant the opportunity to give testimony before the Board although he declined to do so. While the Veteran submitted an authorization form in March 2011 to obtain private treatment records regarding treatment for his respiratory disorder at the Holy Name Hospital on several occasions from November 2007 to December 2009, he did not respond to the RO's September 2011 letter requesting an updated authorization form (as the March 2011 form had expired) so that VA may obtain these records. Also, while an additional search could be made for the Veteran's outstanding service treatment records the Veteran failed to respond to a January 2011 letter requesting the name(s) of the Public Health Service Hospital or Clinic that provided services to the Veteran along with the approximate year of treatment next to the location. The duty to assist is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (veteran cannot passively wait for help from VA). Thus VA is not required to provide any more assistance to him with regard to these private records, as the veteran did not complete and return the required authorization form, or otherwise provide the information that was requested of him in February 2004. 38 U.S.C.A. § 5102(a). All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for a respiratory disorder, to include asbestosis, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs