Citation Nr: 1334779 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-28 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder, to include asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from November 1960 to June 1991. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDING OF FACT The Veteran does not have a respiratory disorder, to include asbestosis, that is related to his active military service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include asbestosis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active tuberculosis, if manifest to a degree of 10 percent within three years after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumors, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to the current version contained in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C) of M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos-related disease linked to alleged asbestos exposure in service. VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not 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. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In an August 2008 statement the Veteran stated that he chipped, painted, and removed insulation inside old naval ships during service, exposing him to asbestos. The Veteran's DD-214s reflect that his primary specialty from 1983 until his discharge from service was wardroom/galley supervisor. In 1983 the Veteran reported that from 1970 to 1972 he had potentially been exposed to asbestos. He stated that containment was used during asbestos removal at the shipyard and he did not enter the containment area. In 1984 he checked that he was uncertain whether he had been exposed to asbestos in service. On asbestos survey questionnaires in 1987 and 1988 the Veteran denied having worked on an asbestos lagging or ripping crew, but in 1988 he said he did not know if he had entered a compartment where an asbestos lagging or ripping operation was in progress. The Veteran's chest and lungs were noted as normal on medical examinations throughout his time in service, and he never reported any history of asthma, shortness of breath, or chronic cough. In December 1970 the Veteran had a positive tuberculosis skin test (i.e. purified protein derivative (PPD)). A chest x-ray was within normal limits and the Veteran was prescribed INH treatment for a year. A September 1986 service treatment record reflects that the Veteran smoked two packs of cigarettes per day for 25 years In April 2007 the Veteran had a PET/CT scan that showed two tiny pulmonary nodules in the left upper lobe. A September 2007 CT scan revealed two nodules in the upper left lobe and a nodule in the left lung base. A previously seen ground glass opacity in the right upper lobe had resolved. No new or enlarging pulmonary nodules were found. Mild dependent atelectasis was noted. A few small parenchymal cysts likely representing mild emphysematous change were also identified. A July 2008 CT was stable compared to the September 2007 scan. The Veteran was afforded a VA examination in June 2009. The Veteran told the examiner that he did maintenance work in the ship boiler room, painting, sanding, and scraping paint, but no cutting or mixing of asbestos flagging or paste. The Veteran reported he smoked one pack of cigarettes per day from 1960 to 1985 before quitting. The examiner noted the Veteran reported a long but mild history of coughing with exercise, cool air, and at night, which started in the Navy. The Veteran reported one to two moderate bronchitis infections for year for which he has not taken antibiotic or bronchodilators. The Veteran also described what the examiner classified as "pollen hypersensitivity" for which he takes Claritin most days. He was noted to have an intermittent, non-productive cough and wheezing less than daily, including with heavy exercise. The Veteran reported a positive PPD test in the mid-1970's for which he was treated for 12 months with no difficulties. The examiner diagnosed mild intermittent obstructive small airways disease (asthma) with significant post-bronchodilator improvement. No restrictive lung disease was noted. The examiner found the Veteran had low risk for asbestos exposure with little radiographic evidence to support exposure. The examiner also stated that the Veteran's CT scans were not particularly suggestive of asbestos exposure. The examiner noted the Veteran's chest x-rays or CT scans did show centrilobular emphysematous changes and old granulomatous changes consistent with a positive PPD test. The Board finds the evidence does not support that the Veteran has an asbestos-related disease, to include asbestosis. The VA examiner has opined that the Veteran's chest x-rays and CT scans are not suggestive of asbestos exposure. The Board has considered the Veteran's statements regarding his possible exposure to asbestos in service, but finds that the current medical evidence does not support that any asbestos exposure the Veteran may have had in service was productive of a current respiratory disease, to include asbestosis. The only respiratory illness the Veteran has been diagnosed with is intermittent obstructive small airways disease (asthma). However, the evidence does not support that the condition is related to service. Although the Veteran reported to the VA examiner that his asthma began in service, his service treatment records, which are negative for any complaints or findings of respiratory difficulty, are significant probative evidence against the Veteran's claim. Further, there is no competent medical evidence suggesting the Veteran's asthma is due to his service. To the extent that the Veteran has opined that he has an asbestos-related respiratory condition or that his currently-diagnosed asthma is related to service, the Board finds that the Veteran is not competent to offer a medical diagnosis or an opinion as to onset or etiology of his respiratory condition. The Board recognizes that the Veteran is competent to state what symptoms he feels and acknowledges his report to the VA examiner of coughing with exercise, cool air, and at night. However, competent medical evidence is that which is provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions, and the Veteran does not have the necessary education, training or experience to opine as to the etiology of his respiratory condition. See 38 C.F.R. § 3.159(a)(1); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Finally, the Board recognizes that the Veteran did have positive PPD test in service. However, a positive PPD test is not the same as a medical diagnosis of active tuberculosis, nor is it by itself considered a disability that can be service-connected. Further, the Veteran's chest x-ray at the time of the test was within normal limits, and the evidence does not show that the Veteran has ever been diagnosed with tuberculosis or that he currently has active tuberculosis. As the preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disorder, to include asbestosis, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 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, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2007. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection for asbestosis and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in June 2009. The examiner, a medical professional, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary tests. The examiner provided the Board with a sufficient opinion on the Veteran's condition. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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, 16 Vet. App. 183. ORDER Service connection for a respiratory disorder, to include asbestosis, is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs