Citation Nr: 1322274 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-28 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a lung disability, claimed as asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1961 to August 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). When this case was previously before the Board in May 2012, it was remanded for additional development of the record. 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 It is not shown that the Veteran's lung disability (asbestosis) is etiologically related to his military service, to include as due to any exposure to asbestos therein. CONCLUSION OF LAW Service connection for a lung disability, claimed as asbestosis, is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A November 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. By letter dated in January 2013, the Veteran was asked to provide evidence as well as information regarding his asbestos exposure and his post-service employment. He did not respond. Consequently, full development regarding exposure to asbestos is not possible. In Wood v. Derwinski, 1 Vet. App 190 (1991), the United States Court of Appeals for Veterans Claims (Court) noted that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." The Veteran's service treatment records and pertinent post-service treatment records have been secured. The RO arranged for a VA examination in March 2013. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board has reviewed all the evidence in the appellant's claims file, and on Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The Veteran's service treatment records are silent for complaints or findings pertaining to a lung disability, to include asbestosis. He denied shortness of breath and chest pain in a report of medical history in June 1963. The lungs and chest were normal on normal on clinical evaluation on service separation examination in June 1963; a chest X-ray was negative. Service personnel records associated with the claims folder reveal the Veteran served in a transportation company from November 1961 to August 1963. His principal duties during that time were supply handler and winch operator. In a statement dated in November 2000, R. Harron, M.D. indicated the Veteran's dates of exposure to asbestos were from 1962 to 1974 at Ingall Iron Works. In a statement dated in May 2002, W. Oaks, M.D., noted the Veteran's medical history included significant occupational exposure to asbestos dust. He summarized a November 2000 chest X-ray which disclosed interstitial changes. The physician concluded, on the basis of the Veteran's medical history, physical examination and the chest X-ray, that the diagnosis of asbestosis was established within a reasonable degree of medical certainty. On VA respiratory examination in March 2013 the Veteran reported exposure to asbestos from replacing brake pads in service. He also asserted he had occupational exposure to asbestos while working at Ingall Iron Works from 1962 to 1974, and working in coal mines from 1974 to 1986. He stated he was told of asbestosis as part of litigation in Mississippi. The examiner was requested by the VA to identify any respiratory disability shown and to furnish an opinion the etiology of any lung disease. She initially (in March 2013) stated that no lung disease was shown, and indicated she could not provide the requested opinion as testing had not been completed. In a May 2013 addendum the March 2013 VA examiner stated that a CT scan showed findings consistent with old asbestos exposure and mild obstruction. She concluded it was less likely than not that asbestosis was incurred in or caused by service. She explained that the Veteran had only limited exposure to asbestos in service, but he had much more significant asbestos exposure during 24 years of [postservice] employment. The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. The 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 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. VA Manual at Subsection (h). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. In 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). 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 incidence 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). The Board notes that the M21-1 MR 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. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). The Veteran asserts service connection is warranted for asbestosis as he was exposed to asbestos when he worked in the motor pool and changed brake shoes on trucks. Of the requirements to establish service connection, it is reasonably shown (based on a May 2002 private physician's statement and VA CT scan) that he has interstitial disease/lung pathology consistent with asbestos exposure. Regarding exposure to asbestos (i.e., evidence of injury/etiological factor for the claimed disease in service), it is first noteworthy that the Veteran has not completed the questionnaire, as requested. Because of his failure to cooperate, the Board must extrapolate from the information that is available. It is not in dispute that the Veteran served in a transportation company; however, as shown by the record, his principal duties were in supply and winch operator (not brake repair). While it is not inconceivable that in the course of his duties in service he may have been exposed to asbestos in brake-linings (as alleged), the available evidence does not support that any such exposure was more than minimal. The Veteran's statement to the effect that he had daily exposure to asbestos in service is clearly compensation-driven and self-serving , and is therefore considered not credible. The record does suggest the Veteran had substantially more exposure to asbestos postservice by virtue of his occupations in the mining and steel industries; such was noted by a private provider in November 2000, and he has reported he became aware of asbestosis from litigation related to his occupational exposure . What remains for consideration is the matter of a nexus between the Veteran's lung disability/asbestosis and his service/exposure to asbestos therein. It is not shown by the record (and the Veteran has not alleged) that asbestosis was manifested in service or soon thereafter. Consequently, the Board must determine whether there is competent evidence that otherwise relates the Veteran's asbestosis to his service. While there are known etiological factors for the development of asbestosis (obviously, exposure to asbestos fibers), whether any specific exposure was a significant factor in the development of the disease is a medical question, and requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has submitted statements from two private physicians (both of whom apparently evaluated him for purposes of compensation based on postservice occupational asbestos exposure); neither related the Veteran's lung disease/asbestosis to his service. The only competent medical evidence that directly addresses the matter of a nexus between the Veteran's asbestosis and his service/exposure to asbestos therein, is the opinion of the March 2013 VA examiner. That physician conceded the Veteran had some exposure to asbestos in service. She opined that it was less likely than not due to exposure to asbestos in service. The rationale provided for the opinion was that the minimal exposure to asbestos in service was less significant than the Veteran's many years of occupational exposure to asbestos following his discharge from service. Because the opinion is accompanied by an explanation of rationale that cites to supporting factual data, it is probative. Because there is no medical evidence to the contrary, it is persuasive. The assertions of the Veteran that his asbestosis is related to exposure to asbestos in service are not competent evidence in the matter. He is a layperson; as noted above, the nexus question presented requires medical expertise. The veteran has not presented any medical opinion that relates his asbestosis to exposure to asbestos in service (vs. postservice exposure to asbestos). The copies of newspaper articles he has submitted tend to cast a shadow on the probative value of evidence from the private providers whose statements he submitted; they do not support provide support for his alleged theory of entitlement. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the appeal in the matter must be denied. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a lung disability, claimed as asbestosis, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs