Citation Nr: 1300705 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-06 547A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of asbestos exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1972. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for posttraumatic stress disorder, degenerative disc disease of the lumbar spine with radiculopathy, exposure to radiation, and asbestos exposure. In January 2007, the Veteran file a Notice of Disagreement (NOD) with regard to the issues of service connection for posttraumatic stress disorder, degenerative disc disease of the lumbar spine with radiculopathy, and asbestos exposure. See 38 C.F.R. § 20.201. The RO issued a January 2008 Statement of the Case (SOC). The Veteran submitted a timely substantive appeal that was received in March 2008. See 38 C.F.R. § 20.202. Thus, the Veteran perfected his appeal with regard to these three issues. See 38 C.F.R. § 20.200. In May 2010, the Board remanded this case for further development. In a September 2011 rating decision, the Appeals Management Center (AMC) granted service connection for anxiety disorder and depressive disorder. This constitutes a full grant of the benefit on appeal for the acquired psychiatric issue, originally claimed as PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits based on PTSD encompasses benefits based on another acquired psychiatric disorder because the evidence developed during the processing of the claim indicated that the symptoms for which the claimant was seeking VA benefits may have been caused by another acquired psychiatric disorder). Thus, that issue is no longer before the Board. In February 2012, the Board denied service connection for degenerative disc disease of the lumbar spine with radiculopathy and remanded the remaining issue of service connection for residuals of asbestos exposure for further development. 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. FINDING OF FACT The Veteran does not have any residuals of asbestos exposure related to his military service. CONCLUSION OF LAW Residuals of asbestos exposure were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Indeed, this lack of notice was the impetus for the February 2012 remand. In compliance with the Board's February 2012 remand, fully compliant notice was later issued in a February 2012 communication, and the claim was thereafter readjudicated in the September 2012 Supplemental Statement of the Case (SSOC). Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Moreover, VA has complied with the February 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's May 2010 remand, VA sought additional VA treatment records and associated these records with the claims file. Thus VA has complied with the May 2010 remand instructions. Stegall, 11 Vet. App. 268. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Direct service connection requires competent and credible evidence of a current disability; competent and credible evidence of an in-service occurrence or aggravation of a disease or injury; and a nexus between the in-service injury and the Veteran's current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In his February 2006 claim, the Veteran indicated that he was exposed to asbestos during service from 1970 to 1972 in the form of fireproofing in the labs of Walter Reed. In his January 2007 Notice of Disagreement, the Veteran further stated that his work at these labs also exposed him to biohazardous chemicals like toluene, benzene, and other hydrocarbons. He has not described any residuals of his claimed exposure. The record does not contain a diagnosis of asbestosis. Nor does the record include diagnostic studies demonstrating any abnormal lung findings. The Veteran has provided information regarding the details of his alleged asbestos exposure, but he has not alleged or described any residuals. The February 2012 VCAA notice specifically requested that he provide evidence of a disability caused by asbestos exposure. To date, no such evidence has been received. In effect, the Veteran is seeking service connection for the mere exposure to asbestos. However, service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim). The record does not contain a diagnosis of any residuals of asbestos exposure. The record does not contain any competent evidence of such residuals. Although laypersons are competent to describe their symptoms, and in some circumstances to offer a competent diagnosis of disability, the Veteran has not done so. There simply is no evidence, lay or medical, of any residuals resulting from the claimed asbestos exposure. Therefore, service connection is not warranted for this disability. ORDER Service connection for residuals of asbestos exposure is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs