Citation Nr: 1216092 Decision Date: 05/04/12 Archive Date: 05/10/12 DOCKET NO. 08-24 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed as residual to exposure to asbestos. 2. Entitlement to service connection for allergies. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran is not shown to have been exposed to asbestos in service and is not shown to have an asbestos-related respiratory disorder. 2. The Veteran does not have a respiratory disorder or an allergy disorder that is etiologically related to service. CONCLUSIONS OF LAW 1. A respiratory is not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). 2. Allergies are not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (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 claim- development procedures). The procedures regarding development of asbestos-related claims are specified in VA Adjudication Procedure Manual, M21-1 Manual Rewrite, subpart ii (compensation), 1.H.29 (Developing Claims for Service Connection for Asbestos-Related Diseases). Notice in this case was addressed in an April 2007 letter that advised the Veteran of the information and evidence necessary to substantiate his claim, including the disability-rating and effective-date elements of a service connection claim and the particular elements to support a claim of asbestos exposure. The Veteran had ample opportunity to respond prior to issuance of the August 2007 decision on appeal. The record also reflects that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has not been afforded a VA medical examination regarding the service-connected disabilities on appeal, as will become clear below, the record contains sufficient competent medical evidence to decide the claim. The Veteran has been advised of his entitlement to a hearing before the RO's Decision Review Officer and/or before the Board but he has not requested a hearing. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims on appeal. Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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). There is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. However, in 1988 VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims; see VA Department of Veterans Benefits (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 the VA Adjudication Procedure Manual, M21-1 Manual Rewrite, Part IV, subpart ii, 2.C.9 (Service Connection for Disabilities Resulting from Exposure to Asbestos) (hereinafter "M21-1MR, IV.2.ii.C.9."). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure; see VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Common materials that may contain asbestos include steam pipes for hearing units and boilers, ceiling tiles, roofing shingles, wallboard, fireproofing materials and thermal insulation. M21-1MR, IV.ii.2.C.9.a. Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, IV.ii.2.C.9.d. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, 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. M21-1MR, IV.ii.2.C.9.e. Some of the major occupations involving exposure to asbestos include mining; milling; working in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacture and servicing of friction products such as clutch facings and brake linings; and, manufacture and installation of such products as roofing and flooring materials, asbestos and cement sheet and pipe products and military equipment. Exposure to any simple kind of asbestos is unusual except in mines and mills where the raw materials are produced. M21-1MR, IV.ii.2.C.9.f. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1MR, IV.ii.2.C.9.g. When deciding a claim for service connection for a disability resulting from an exposure to asbestos, VA must determine whether service records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1MR, IV.ii.2.C.9.h. The Court has found that provisions in former paragraph 7.68 (predecessor to M21-1MR, IV.ii.2.C.9.f-g cited above) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141, 145 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Service connection for a respiratory disorder In his claim for service connection the Veteran asserted entitlement to service connection for asbestosis, claimed as due to asbestos exposure aboard the Coast Guard vessel (CGC) Duane. The Veteran also stated in his claim that he had been diagnosed with "asbestosis" by the VA hospital. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will accordingly consider whether the Veteran has a respiratory disorder for which service connection can be considered, whether or not such disorder is etiologically related to asbestos exposure. Service personnel records demonstrate that the Veteran served on the CGC Duane from March 1960 to October 1963. His occupational specialty during the period was damage controlman (DC). Service treatment records (STRs) show treatment in August 1961 and June 1963 for "common cold." Report of Medical Examination in October 1963 at the time of the Veteran's separation from service shows clinical examination of the lungs and chest as "normal." Review of VA pulmonology treatment records shows the Veteran presented for pulmonary consult in February 2007 for evaluation of a lung nodule that was first noticed in August 2005. The Veteran denied shortness of breath and stated to the consultant that he had an occupational history in construction and had no known exposure to asbestos; he also admitted to being a current smoker and having smoked three-quarters of a pack per day for the past 54 years (total smoking history more than 30 pack years). The clinical impression was pulmonary nodules with pleural thickening. On review of the evidence above, the Board finds at the outset that the record does not show the Veteran to have been exposed during service to asbestos. Although the Veteran is shown to have served on the CGC Duane, there is no presumption that a veteran was exposed to asbestos in service by reason of having been on a ship. Dyment, 13 Vet. App. 141, 145. The Veteran in this case has made no effort to explain why he feels his duties exposed him to asbestos during service. The Board notes particularly that the Veteran reported to the VA pulmonologist that he had post-service occupational experience in construction, an occupation noted by M21-1MR, IV.ii.2.C.9.f to have risk of exposure to asbestos. The Board also finds there is no medical evidence of record showing an asbestos-related pulmonary disorder (asbestosis, mesothelioma or other disease associated with asbestos exposure in M21-1MR, IV.ii.2.C.9.b-c), and in fact there is no medical evidence of any active pulmonary disease at all. The VA treatment records confirm pulmonary symptoms (pulmonary nodules with pleural thickening), but there is no medical diagnosis of an underlying disease. The Veteran asserted in his claim that he had been diagnosed with "asbestosis" but hearsay medical evidence does not constitute competent medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); Warren v. Brown, 6 Vet. App. 4 (1993). ("What a physician said, and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence." Robinette, 8 Vet. App. at 77 (1995)). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case there is no documentation of medical diagnosis (including asbestosis) and the Veteran is not competent as a layperson to diagnose himself. Finally, the Board notes the Veteran has not asserted, and the evidence of record does not show, that he has had a chronic pulmonary disorder since discharge from service or that he has had an active pulmonary disorder that resolved prior to the Board's adjudication. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). In sum, the Board has found that the evidence of record does not show the Veteran to have been exposed to asbestos in service and does not show him to have an active pulmonary disorder etiologically related to service, to include alleged exposure to asbestos. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Service connection for allergies STRs show treatment in September 1962 for bacterial pharyngitis. Report of Medical Examination in October 1963 at the time of the Veteran's separation from service shows clinical examination of the nose and sinuses as "normal;" examination of the mouth and throat was noted as "abnormal" due to history of acute recurrent tonsillitis, not considered disabling (NCD). VA treatment records show the Veteran had bilateral myringotomy and tubes (BMT) in April 2007. During follow-up at the VA otolaryngology clinic in July 2007 he was noted to have nasal rhinitis. On review, the Veteran is shown to have a diagnosed sinus/allergy disorder (nasal rhinitis). However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The evidence in this case does not show any allergy disorder during service, as demonstrated by the "normal" evaluation and absence of symptoms in his separation examination. The Veteran has not asserted, and the evidence of record does not show, that he has had chronic allergy symptoms since discharge from service, and there is no competent medical evidence of record asserting an etiological relationship between the currently diagnosed nasal rhinitis and service. By the act of submitting his claim for service connection the Veteran has demonstrated his belief that the claimed allergy disorder is related to service. However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). In this case, in the absence of medical opinion relating the current disability to service, and in the absence of medical or lay evidence showing chronic symptoms since service, the Board finds the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for a respiratory disorder, to include as due to asbestos exposure, is denied. Service connection for allergies is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs