Citation Nr: 1303776 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-19 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for lung disability, to include asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from October 1950 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a Board hearing held at the Board's offices in Washington, DC in November 2012. Additional evidence was received at the hearing, along with a waiver of the Veteran's right to initial RO consideration of the evidence. The RO had labeled the issue on appeal as one involving asbestosis. Given that the record demonstrates the presence of several lung disorders, the Board has recharacterized the issue on appeal to more accurately identify the claim at issue. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was not exposed to asbestos in service. 2. The Veteran's current lung disability did not originate in service or until years thereafter, and is not otherwise etiologically related to service. CONCLUSION OF LAW Lung disability was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. In the present case, and prior to the rating action from which this appeal originates, VA provided the veteran with the notice contemplated by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in an April 2009 correspondence, including as to notice of the information and evidence necessary to substantiate the initial rating and the effective date to be assigned in the event his claim was successful. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the April 2009 correspondence properly advised him of the information and evidence necessary to substantiate his claim on the theory of asbestos exposure, specifically suggesting sources of information for him to provide. Based on the procedural history of this case, it is the conclusion of the Board that VA has complied with any duty to notify obligations set forth in 38 U.S.C.A. § 5103(a). With respect to VA's duty to assist the veteran, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, were obtained by the RO or provided by the veteran himself. 38 U.S.C.A. § 5103A. The Veteran has not been afforded a VA examination in connection with this claim. Under the facts of this case, an examination or medical opinion is not necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the evidence does not establish that an event, injury or disease occurred in service. The Veteran alleges that he was exposed to asbestos in service, which certainly would qualify as an event, but as will be discussed at a later point, the Board finds he was not in fact exposed to asbestos. He does not otherwise allege another event in service, and does not contend that he sustained an injury resulting in the current lung disability, or that he otherwise had an associated lung disease in service. Moreover, the only evidence linking the Veteran's current disorder to service consists of his lay assertion of causation. He does not allege continuity of symptoms, but rather just believes that his current disorder, which manifested decades after service, is related to service. Although for the purposes of a VA examination or opinion the threshold for evidence suggesting a relationship between current disability and service is low, bald assertions of etiology by a layperson where there is no allegation of continuity of symptoms since service does not suffice to meet that threshold. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, for the two reasons discussed above, the Board finds that a VA examination or opinion is not necessary in this case. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Factual background The Veteran's service treatment records show he served aboard the U.S.S. Tarawa. The records themselves, although documenting several "colds", are silent for any complaints or findings of a lung disorder. The Veteran's service personnel records show he completed a one-day course in firefighter's training in January 1951. He was detailed to duty as a Crew's Messman, ending in April 1952, and in October 1952, he qualified on a Bow and Stern Hook of 40 feet. The Veteran's DD Form 214 shows that his specialty was as a seaman. The Veteran submitted a Standard Leave Form dated in August 1951, which documents that he was granted several day's leave. The form indicates that he was to report back to the U.S.S. Tarawa, Division "M." On file are VA and private medical records for 2000 to 2009 documenting treatment for pulmonary fibrosis, chronic obstructive pulmonary disease, and pulmonary nodules. Diagnostic studies showed that he had linear interstitial lung disease with a peripheral predominance, and with calcified pleural plaques. VA treatment records note findings consistent with interstitial lung disease, and notes the Veteran's report of working in the engine room while in service. On file is a February 2009 letter to the Veteran from a law firm. The letter indicates that the authors read a report of the Veteran documenting the presence of asbestos-related interstitial lung disease. In support of his claim, the Veteran has submitted copies of several internet webpages. One such page, www.asbestosnews.com, is apparently is affiliated with a law firm handling claims involving asbestosis. The website warns that the material contained in the site was general in nature. The specific information contained in the copy is to the effect that the U.S.S. Tarawa (CV-40) was an aircraft carrier during the period in which the Veteran served. The excerpt indicates that the Norfolk Navy Yard probably did not have adequate safety measures for asbestos use when it was built, and that it was possible that the persons who built, repaired, maintained, overhauled, converted, scrapped and served onboard the vessel were at risk of dangerous asbestos exposure. The copy also states that when asbestos products are in the environment, personnel in the area at risk of inhaling. Another webpage, www.asbestosclaims.org, indicates that an individual who served aboard the U.S.S. Tarawa was likely exposed to asbestos; the website is also affiliated with a law firm. The Veteran also submitted an excerpt from www.mesothelioma.com, which indicates that there were no serious events during the U.S.S. Tarawa's ship life that would have exacerbated the usual asbestos risks. The website indicates that the U.S.S. Tarawa used asbestos materials heavily in the engines and engine spaces, and in fireproofing throughout the vessel. The Veteran contends that he served in the engineering log room in service as a seaman's apprentice in the "M" division, and then served in the engine room. He maintains that following service he had not had any exposure to asbestos. The Veteran's representative argues that Division "M" noted on the August 1951 leave form refers to "main-space engine room." The Veteran also maintains that he worked on the actual equipment in the engine room and was studying to have his rate changed. His representative also alleged that the Veteran served as a fireman in the engine room. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, 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 VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1MR contains guidelines for the development of asbestos exposure cases. Paragraph (a) lists common materials that may contain asbestos including steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Paragraph (b) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis or asbestosis. Inhaling asbestos fibers can also lead to pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Paragraph (c) notes as important that all persons with significant asbestosis develop cor pulmonale, heart disease secondary to disease of the lung or its blood vessels, and those who do not die from cancer often die from heart failure secondary to cor pulmonale. Also of significance is that disease-causing exposure to asbestos may be brief, and/or indirect. Paragraph (d) states that the latency period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. Paragraph (e) provides that 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. Paragraph (f) indicates that some of the major occupations involving exposure to asbestos include mining; milling; work 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 products, such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Paragraph (g) notes that high exposure to asbestos and high prevalence of disease have been noted in insulation and shipyard workers. During World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. Paragraph (h) provides that VA must determine whether service records demonstrate evidence of asbestos exposure during service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the record shows that the RO complied with M21-1MR procedures. The RO sent the Veteran a letter in April 2009 requesting dates and places that the Veteran was exposed to asbestos in service, the method of exposure, the names of other service persons with him at the time of exposure, his organization and rank at the time of each exposure, his complete employment history pre-and post-service, and medical evidence that shows the diagnosis of the disease caused by asbestos. The service treatment records are silent for any reference to any lung complaints or findings, and there is no evidence of a lung disorder, including asbestosis, until decades after service, and no medical evidence linking any current lung disorder to service. Although the Veteran contends that he was exposed to asbestos in service, the Board finds that the evidence does not support such exposure. The Veteran contends that the exposure occurred when he was assigned to work in the engine room, which he believes is established by the reference to Division "M" on the Standard Leave Form. His representative contends that the "M" stands for "Machine Room." The representative has submitted a VA memorandum of May 13, 2002, setting out a number of Navy occupations and the likelihood of asbestos exposure for each, noting that a "Machinist Mate" (which was highlighted on the memorandum by the representative) is listed as having a high probability of exposure to asbestosis. The Board points out that it is doubtful Division "M" signifies the Veteran's status as a Machinist's Mate. This is particularly true given that the memorandum shows a Machinist's Mate is designated by "MM." Even if the "M" refers to a particular occupation, the Board points out that it is more reasonable to assume the "M" refers to Messman, which is a detail to which the Veteran was actually assigned, according to the service personnel records. In short, the Board finds that the Standard Leave Form does not establish that the Veteran served in the engine room. The Board also points out that the Veteran's testimony that he actually worked on equipment in the engine room and was studying to obtain a different rate is not supported by the service personnel records, which do show his training in service, which did not include any reference to training for an occupation related to service in the engine room. The Board also finds implausible the Veteran's assertion that he served at some point in the engine room as a fireman, given that he only underwent a single day's training in firefighting procedure. Such a short period of training does not reasonably suggest the course was intended to prepare him for actual duty as a firefighter. In sum, the Board finds that the evidence does not establish that the Veteran served at any point either in the engine room of the U.S.S. Tarawa, or any other place onboard the aircraft carrier that involved a likelihood of exposure to asbestos. The Board notes that both a messman and a seaman (the two occupations in which the service personnel records show the Veteran served) are listed in the VA memorandum as involving only a minimal probability of exposure to asbestos. The Board notes that the internet articles submitted by the Veteran, although suggesting that a person who served aboard the U.S.S. Tarawa in any capacity was exposed in some manner to asbestos, do not identify the basis for such a broad proposition. Moreover, neither of the two articles making this broad statement are associated with a neutral organization whose findings might be trustworthy and accurate sources of information. Both websites are clearly associated with law firms whose purpose in providing information is likely to involve seeking clients for litigation. In the Board's opinion, the law firm's control over the websites and the information contained therein seriously undermines the credibility of the information on the websites. In any event, without knowing the basis for the assertions of the websites, particularly as the assertions are overly broad and categorical, the Board is unable to assign any probative value to the internet articles. The Board finds that the VA memorandum's estimation of the probability of asbestos exposure is entitled to greater probative value, as the memorandum addresses the chance of exposure based on occupation (which is more persuasive than an overly broad statement that all sailors must have been exposed) and it was prepared by a U.S. Navy liaison. The last article, while not clearly affiliated with a law firm engaged in the practice of litigating asbestos claims, nevertheless only speaks to asbestos exposure in engines and engine spaces. As already discussed, the Board finds the Veteran did not serve in such areas. Although the treatment records on file refer to interstitial changes in the lungs, none of the treating clinicians purported to link any current lung disorder to service. The only opinion offering such a link in this case is the opinion of the Veteran himself. In some circumstances, a layperson such as the Veteran can offer an opinion as to the etiology of a disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the Veteran does not report having experienced pulmonary symptoms in service and persistently since. Rather, there is a gap of decades between service discharge and when the record first documents the problems at issue. The opinion he offers thus is one seeking to establish that an exposure to asbestos in service led to disability manifesting quite a few years after service. The Board first notes that the Veteran's opinion is based on his belief that he was exposed to asbestos. As already explained, the Board finds that he was not exposed in service. The Board next notes that, to the extent the Veteran maintains that his current lung or pulmonary disorders nevertheless are related to service, given the absence of any obvious disease or injury in the service records, and the length of time between service and the onset of the current disorders, the Board finds the matter of the etiology of the current condition is one that clearly requires medical expertise. Although the Veteran does not believe he had any post-service experiences as a truck driver that could have led to his current problems, this is a question that clearly requires medical expertise. For the above reasons, the Board finds that the Veteran's opinion concerning the etiology of his current lung disorders is not competent. In sum, the evidence as a whole does not show the Veteran was exposed to asbestos in service, and there otherwise is no competent evidence linking any current lung or pulmonary disorder to service. As the preponderance of the evidence is against the claim, the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lung disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs