Citation Nr: 1302225 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-07 355 ) DATE ) ) On appeal from the Department of appellants Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a pulmonary disorder, to include asbestosis, due to in-service asbestos exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The appellant enlisted in the Naval reserve in December 1968. He was called to 28 days active duty for training on January 18, 1969. He reported aboard USS Twining (DD-540) on February 2, 1969 and departed on February 14, 1969. He reported to Naval Reserve Surface Division, Auburn California on February 15, 1969. He was released from reserve service in January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board remanded this case for additional development in May 2012, specifically so that another VA medical opinion could be provided with consideration of the pertinent medical history of record. An additional opinion was subsequently provided in June 2012 by a physician. The directives of the Board's remand have been substantially complied with and the case is now ready for appellate review. The Board has not only reviewed the appellant's physical claims file but also the appellant's file on the "Virtual VA" system to insure a total review of the evidence. In March 2012, the appellant, in writing, withdrew his request for a hearing. FINDINGS OF FACT 1. The appellant may have been exposed to asbestos during service but does not have asbestosis or an asbestos related disease. 2. The appellant does not have a pulmonary disorder, to include asbestosis, due to disease or injury incurred or aggravated during his active duty for training. CONCLUSION OF LAW The criteria for service connection for a pulmonary disorder, to include asbestosis, due to in-service asbestos exposure have not been met. 38 U.S.C.A. §§ 101(16), 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for a pulmonary disorder, to include asbestosis. He reports exposure to asbestos in old barracks in boot camp. He also reports that while serving aboard ship asbestos covered steam pipes were over his bunk and the bunk was covered with asbestos each time he went to bed. For the reasons discussed below, the Board finds the appellant does not have asbestosis or any other pulmonary disorder as a result of his active service. In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations concerning such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The date of this amended material is December 13, 2005. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines "asbestos" as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fireproofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). With respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that an appellant was exposed to asbestos in service due to having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGPREC 4-2000 (April 13, 2000), published at 65 Fed. Reg. 33422 (2000). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, an appellant is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Background The Board has reviewed all of the evidence in the appellant's claims file and Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board specifically finds that any evidence not discussed does not support the claim. The appellant seeks service connection for a pulmonary disability, claimed as asbestosis, and chronic lung or respiratory disease, including as secondary to asbestos. Service personnel records indicate that he served on active duty for training for 28 days in January and February 1969, including almost two weeks aboard a destroyer. He now claims he was exposed to asbestos while in old barracks and from insulation on steam pipes over his bunk while aboard ship. When the appellant was examined for service, in December 1968, he gave a history of pain or pressure in the chest. The examiner indicated the symptom was rare and not considered disabling. On clinical evaluation, the appellant's lungs and chest were normal. The chest X-ray was negative. The appellant had another chest X-ray at the training center, in January 1969, and it too was negative. The service treatment records do not document any pulmonary complaints, findings or diagnoses. Following service, the many years passed without any documented pulmonary symptoms. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against the claim. See Maxson, at 1333. In February 1997, a private physician, D. A. B., M.D., reported reading a January 1997 X-ray film. He found that it showed small primary and secondary opacities in the middle and lower zones of the right and left lungs. There were no large opacities. There was pleural thickening on the right and left chest walls. There was no pleural calcification or other abnormality. The doctor did not offer a diagnosis or indicate the cause or onset of the findings. Dr. D. A. B. also read May 2001 X-ray studies. He again reported small primary and secondary opacities in the middle and lower zones of the right and left lungs. There were no large opacities. This time, there was no pleural thickening reported. There was no pleural calcification or other abnormality. The doctor did not offer a diagnosis or indicate the cause or onset of the findings. The clinical records of private physician, Q. T. O., M.D., are in evidence. These records show the appellant to be over-weight. His height was reported as 731/2 or 74 inches while his weight was reported as 283 pounds in March 2003, 296 pounds in September 2004, and 283 pounds in May 2005. When the appellant was seen in March 2003, it was reported that he had been in good health except for back pain. He had worked as a pipe fitter for 20 years. On examination, his lungs were clear to auscultation and percussion. There were no pulmonary complaints, findings, or diagnoses. In September 2004, Dr. Q. T. O. saw the appellant for an annual examination. His medical history included allergic rhinitis, severe headaches and obesity. The reported history did not include pulmonary disease or symptoms. Direct examination showed his lungs to be clear. There were no pulmonary complaints, findings, or diagnoses. In May 2005, the appellant saw Dr. Q. T. O. for a follow up visit after a colectomy for colon cancer. It was noted that there was a possible metastatic lesion in the right upper lung field. The appellant was taking a course of chemotherapy. Examination showed his lungs to be clear. A December 2007 report from D. H. M., M.D. discusses a chest X-ray study. The appellant was reported to have a history of asbestos lungs (although the basis of that history was not explained). There was minimal subsegmental atelectasis or scarring in the left posterolateral costophrenic sulcus. The lungs were otherwise clear. There was no infiltrate or significant interstitial lung disease. There were no pleural effusions or calcified pleural plaques. The mediastinum and hilar structures were unremarkable. Soft tissues were normal. Degenerative changes were seen in the spine. In December 2007, Dr. D. A. B. reported that X-rays disclosed small opacities in the middle and lower zones of the left and right lungs. There were no large opacities. There were no pleural abnormalities. There were other unspecified abnormalities. Notes from Dr. Q. T. O. reflect follow-up X-ray studies in February 2008. The heart and pulmonary vasculature appeared to be within normal limits. There was no effusion, edema, or infiltrate. Extra pleural fat deposition was present. Comparison with the December 2007 study showed improved aeration at the lung base with minimal residual linear density at the left base presumably reflecting scarring, as it could be visualized dating back to January 2005. The impression was improved aeration in the lung bases, bilaterally. In July 2008, Dr. Q. T. O. wrote that the appellant had been doing well. He was involved in a class action law suit for exposure to asbestos. He was evaluated and a nodule was noted. His attorney requested further evaluation. The appellant's problem list included extreme obesity with a body mass index in excess of 40. The problem list did not contain asbestosis or any other lung disease. The appellant's chest had normal excursion and was clear to auscultation. There were no pulmonary findings or diagnosis. As to the pulmonary nodule, follow-up in 3 months was recommended. In February 2009, Dr. Q. T. O. wrote that the appellant had chronic shortness of breath on exertion. He had a computerized tomography (CT) scan and chest X-ray study (CX) with evidence of exposure to asbestos. In July 2009, the doctor provided similar information, expressing the opinion that it was at least as likely as not (50/50 probability) caused by or a result of military service. The appellant had a VA examination in December 2009. The claims file was reviewed. It was noted that the appellant reported serving aboard the USS Twining and being exposed to asbestos during his service from December 1968 to January 1970. Dr. Q. T. O.'s July 2009 letter reporting that CT and CX studies showed evidence of exposure to asbestos was also noted. Additionally, the appellant reported that he began having trouble breathing in 1992. He reported being short of breath and not having any lung capacity. He complained of chronic shortness of breath and a dry cough. The appellant further reported working as a pipe fitter from 1978 to 2002 and acknowledged asbestos exposure during that work. He reported being involved in three class action law suits due to asbestos exposure while working as a pipe fitter. The appellant gave a history of an intermittent non-productive cough, nightly wheezing, dyspnea on moderate exertion, non-anginal chest pain on exertion, pleuritic chest pain on strenuous exertion, and night sweats. Physical examination showed the appellant to weigh 267 pounds. Pulmonary examination showed no abnormal breath sounds. Diaphragm excursion was normal. Chest expansion was normal. There were no conditions associated with pulmonary restrictive disease. There was no chest wall scarring or deformity. There were no significant signs of weight loss or malnutrition. The appellant did report a recent weight loss from 326 pounds to 267 pounds when he stopped drinking 18 beers daily. Imaging studies were reviewed. A December 2007 chest X-ray revealed minimal subsmental atelectasis or scarring in the left posterior costophrenic sulcus. The lungs were otherwise clear. A December 2009 tomography scan disclosed several 2 to 3 millimeter pulmonary nodules that showed no significant glucose activity. The impression was that the pulmonary nodules were small and unchanged, hence likely benign. Pulmonary function tests showed good effort and spirometry appeared normal. The diagnosis was chronic obstructive lung disease. The examiner expressed the opinion that the appellant did not have asbestosis. She explained that the evidence was not sufficient to support a diagnosis of asbestosis. She further explained that there were three key findings that support a diagnosis of asbestosis. 1. A reliable history of exposure to asbestos with a proper latency period from onset of exposure to the time of presentation, and/or the presence of markers of exposure. (For example, pleural plaques which were virtually pathognomic of previous exposure or recovery of sufficient quantities of asbestos fibers in lung tissue.) The clinician noted that there was evidence that there was evidence that the appellant was exposed to asbestos, but pleural plaques were not identified on CT or chest X-ray. 2. Definite evidence of interstitial fibrosis, as manifested by one or more of the following: end-inspiratory crackles on chest examination, reduced lung volumes and/or DLCO (Diffusion Capacity of the Lung for Carbon Monoxide), presence of typical chest radiograph or HRCT (high resolution computed tomography) findings of interstitial lung disease, or histologic evidence of interstitial fibrosis. The clinician pointed out that there was no evidence of interstitial fibrosis. The appellant did not have end-inspiratory crackles on physical chest examination. Pulmonary function testing showed obstructive rather than restrictive lung disease with TLC greater than 100 (160). The RV was greater than 100 at 259 demonstrating obstructive disease. The DLCO was reported as normal. Chest X-ray and CT scans did not identify any interstitial lung disease or fibrosis. 3. Absence of other causes of diffuse parenchymal lung disease. The clinician noted that interstitial lung disease (ILD) also known as diffuse parencymal lung disease had not been identified. The clinician concluded that the appellant did not have the three key findings that supported a diagnosis of asbestosis. The VA clinician reviewed the statement by Dr. Q. T. O., that the CT scan and chest X-ray showed evidence of asbestos exposure. It was noted that the private physician did not provide a rationale supporting the conclusion. The VA clinician further stated that the appellant did not have any other lung disease related to asbestos exposure. There were no diagnoses of other lung diseases related to asbestos exposure, including mesothelioma, lung cancer, or pleural plaques. A VA physician reviewed and cosigned the report. The appellant was given another VA examination in June 2012. It was noted that he was being examined for a diagnosis of asbestosis. The claims file and VA medical records were reviewed. The examiner indicated that the appellant did not have any pulmonary condition. Imaging studies were reviewed. It was reported that the December 2007 chest X-ray revealed subsegmental atelectasis or scarring in the left posterior costophrenic sulcus. The lungs were otherwise clear. The December 2009 CT scan disclosed several 2 to 3 millimeter pulmonary nodules that showed no significant activity. There were no significant changes. The results of the December 2009 pulmonary function test were reviewed and it was noted that the pre-bronchodilator results were normal. The VA physician concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The physician explained that an attorney group contacted the appellant in 1997 that he had asbestos exposure aboard a ship they had identified. There were some perfusion defects but no pleural opacities in a B reading in May 2001. Since that time, the chest X-rays had been stable. A CT scan revealed three small nodules that showed no significant glucose activity. Hence it was less likely than not that the appellant had asbestos lesions in his chest. The physician reviewed conflicting medical evidence and provided an opinion. The service asbestos exposure was said to be one month of working in heavy white dust with a cough. After service he worked for 19 years as a pipe fitter, of which probably only 7 years were in asbestos laden dust which also caused him to cough. His most recent CX and CT of 2009 did not show any asbestos lesions or interstitial lung disease. His pulmonary function test of 2009 did not show any evidence or restrictive or obstructive lung disease. His oxygen saturation on the day of examination showed no hypoxemia. The appellant was on no pulmonary treatment and had never smoked. He had pulmonary test results in the supernormal range confirming the absence of any lung disease. Therefore, it was less likely than not that the appellant had any service-connected lung disease. Conclusion It is not enough to show injury during service, there must currently be a residual disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There must be a current disability. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). 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 adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the present case, the Veteran's shortness of breath is found to be capable of lay observation, and thus his statements constitute competent evidence. There also is no reason shown to doubt the Veteran's credibility when he says he has had shortness of breath since military service. A lay witness, such as the appellant also is competent to report exposure to asbestos during service. 38 C.F.R. § 3.159(a). The timing of his ship board service is consistent with exposure to asbestos, so the Board finds his report of asbestos exposure to be credible. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (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. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Similarly, the Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical causation or etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As discussed above, however, there is no objective evidence supporting a finding that his shortness of breath is due to a lung disability. A lung disability requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions as to cause or etiology. In this case, no physician or other medical professional has actually diagnosed asbestosis or other chronic pulmonary disease related to asbestos exposure. The closest thing to a diagnosis was the brief letter from Dr. Q. T. O., who wrote a few fragmentary comments. He noted that the appellant had chronic shortness of breath on exertion, but did not say whether it was due to the appellant's obesity or other factors. The doctor did not say that it was due to asbestosis or other chronic pulmonary disease. The doctor also wrote that imaging studies showed "evidence of exposure to asbestos" but did not say what that evidence might be. In July 2009, the doctor expressed the opinion that it was at least as likely as not (50/50 probability) caused by or a result of military service. However, he did not provide any rationale for his position. In December 2009, the Veteran was diagnosed with chronic obstructive lung disease, but there are no clinical findings demonstrating any asbestos-related lung disorder. In fact, the VA examinations provided noted in great detail while the clinical evidence did not show any indication of an asbestos-related lung disease. The December 2009 examiner noted a diagnosis of chronic obstructive lung disease, but also determined based on clinical evaluation that the Veteran did not have any lung disease related to asbestos exposure, including asbestosis. The June 2012 VA examiner also noted that a pulmonary function study in 2009 did not show any evidence of restrictive or obstructive lung disease. The Board is required to weigh the evidence for and against the claim. When weighing medical opinions, the critical factor is the explanation for the doctor's conclusion. Here, neither Dr. Q. T. O. nor any other medical professional has provided either a firm diagnosis of pulmonary disease, such as asbestosis, or any explanation as to why the appellant's pulmonary complaints might be related to service. On the other hand, two VA examinations resulted in very well reasoned and detailed explanations (which are set forth above and will not be repeated here) as to why the appellant does not have asbestosis or any other pulmonary disease related to service. Because these opinions are well supported by explanations applying medical principles to the facts of this case, including pulmonary function testing and imaging studies, the Board finds that the preponderance of evidence is against the claim. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in April 2009, which informed the appellant of all the elements required by the Pelegrini II Court as stated above. It is also noted that the appellant was specifically asked in this letter to describe exactly where, when, and how he had been exposed to asbestos. It is noted that neither the appellant, nor his representative, raised any allegation of prejudice to the appellant in the provision of the requisite notice. As to VA's duty to assist, 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). Private and VA treatment records have been obtained, and there is no indication that any potentially relevant records are outstanding which have not yet been sought. The appellant was also provided with VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to make a fully-informed decision with regard to the appellant's claim. The appellant was offered the opportunity to testify at a hearing before the Board, but withdrew his hearing request. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the appellant's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER Service connection for a pulmonary disorder, to include asbestosis, due to in-service asbestos exposure is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of appellants Affairs