Citation Nr: 1336481 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-32 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES Entitlement to service connection for a lung disability other than pleural plaques. Entitlement to service connection for pleural plagues. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1963. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Jurisdiction over the case was subsequently returned to the RO in New York, New York. After the case was forwarded to the Board the Veteran submitted additional medical evidence. This evidence is essentially cumulative of evidence already considered by the originating agency. Therefore, a remand for consideration of the evidence by the originating agency is not required. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran's pleural plaques are due to his asbestos exposure during his active naval service. 2. No other lung disability was present until more than one year following the Veteran's discharge from service, and no other lung disability is etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for pleural plaques are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for establishing service connection for lung disability other than pleural plaques are not met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the 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. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in December 2008, prior to the initial adjudication of the claim. The Board also finds that the duty to assist has been met. The Veteran's service treatment records, relevant service department records, and private medical records have been obtained. He was also provided with a VA examination with respect to his claim in December 2009. The VA examination report reflects that the examiner reviewed the evidence of record, examined the Veteran, and conducted the appropriate tests. In addition, the conclusions reached by the VA examiner were properly supported. The Board finds that the report of the examination is adequate for adjudication purposes. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. II. Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted 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). 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 a 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 (2013); 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. III. Factual Background and Analysis The Veteran contends that service connection is warranted for his lung disability because it is due to his exposure to asbestos during active service. 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 DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether 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. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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 roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). In an original application for compensation, the Veteran claimed entitlement to service connection for a lung disability due to asbestos exposure. Specifically, in a statement in support of claim received in January 2009, the Veteran contended that he was exposed to asbestos while working aboard the U.S.S. Nipmuc, U.S.S. Mauna Loa, and the U.S.S. Requisite. He noted that prior to entering the military he worked on his father's farm. With regard to his post-service occupation, the Veteran stated that he worked as a carpenter building forms, and later as a stonemason. The Veteran's DD 214 reflects that he served in the United States Navy as an engineman. He has also provided statements regarding his duties and potential exposure to asbestos. Given that the Veteran's statements are consistent with the places, types and circumstances of his service, the Board accepts the Veteran's statements in this regard as competent and credible. There is no medical evidence of the presence of any lung disorder in service. A March 2003 radiology report shows that the Veteran was treated for a cough, and a chest X-ray examination revealed chronic obstructive pulmonary disease (COPD) with no acute disease. A December 2005 emergency department report indicates that the Veteran was treated for difficulty breathing and wheezing. The report notes that the Veteran had a history of COPD. A chest X-ray examination revealed calcified pleural plaques bilaterally. Private treatment records and the related chest X-ray studies dated in November 2008 and subsequently show that calcified and noncalcified pleural plaques were diagnosed. The reports also indicate that the condition was consistent with "old asbestos exposure." The Veteran was afforded a VA examination in December 2009. In addition to interviewing and examining the Veteran; the examiner reviewed his in-service, VA, and private treatment records, and confirmed the diagnoses of COPD and pleural plaques. The examiner then opined that, "The Veteran's pleural plaques, as described on x-ray indicate asbestos exposure, as indicated by [Dr. N.], not disease. With disease, imaging studies would present findin[g]s of a reticular nodular pattern in the parenchyma (tissue of the lung). The DLCO, in the absence of COPD would reflect the degree of asbestos disease, if present. However, the DLCO is seen reduced in pure advanced COPD. It is my opinion that the Veteran has only asbestos exposure, without asbestosis disease . . . . It should also be noted that COPD is not a consequence of asbestos exposure. The Board finds that the evidence of record supports a grant of service connection for pleural plaques. As previously noted, pleural plaques are known to result from asbestos exposure. In addition the Board finds that the medical evidence of record, linking the Veteran's pleural plaques to asbestos exposure, is competent and credible. Specifically, the private treatment records, the related chest X-ray reports, and the December 2009 VA examination report, show that the Veteran's pleural plaques are likely related to his in-service exposure to asbestos. Although the VA examiner stated that the Veteran does not have asbestosis, the medical evidence uniformly links the pleural plaques to the Veteran's asbestos exposure. Accordingly, service connection is in order for the pleural plaques. The medical evidence does not show that any other lung disorder was present in service or until many years thereafter. In addition, there is no medical evidence linking the Veteran's COPD or any lung disorder other than pleural plaques to the Veteran's active service. In addition, the only competent opinion of record as to whether the Veteran's current COPD is related to his active service is against his claim. Specifically, the December 2009 VA examination report notes that, "COPD is not a consequence of asbestos exposure." While the Veteran might sincerely believe that his COPD is related to his in-service exposure to asbestos, there is no indication that he possesses the expertise required to provide a competent opinion linking his COPD to asbestos exposure. Accordingly, service connection for lung disability other than pleural plaques is not in order. In determining that service connection is not warranted for lung disability other than pleural plaques, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for lung disability other than pleural plaques is denied. Entitlement to service connection for pleural plaques is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs