Citation Nr: 1425964 Decision Date: 06/09/14 Archive Date: 06/16/14 DOCKET NO. 11-00 693 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a disability manifested by breathing problems, to include sleep apnea and empyema, claimed as due to exposure to asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1961 to March 1965. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2010 rating decision in which the RO denied service connection for breathing problems, claimed as due to exposure to asbestos. In July 2010, the Veteran filed a notice of disagreement, and the RO issued a statement of the case (SOC) in December 2010. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2011. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) file associated with the Veteran's claim. That file has been reviewed in connection with this claim. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran's assertions as to in-service asbestos exposure are not substantiated, and he has not been diagnosed with any disability associated with asbestos exposure. 3. No breathing problems or associated disability were/was shown in service or for many years thereafter, and there is no competent, persuasive evidence or opinion even suggesting that there exists a medical nexus between any currently claimed disability manifested by breathing problems, to include sleep apnea and empyema, and any in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for a disability manifested by breathing problems, to include sleep apnea and empyema, to include as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. An April 2010 pre-rating letter provided pertinent notice to the Veteran in connection with his claim for breathing problems. The letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates (in the event service connection is granted), as well as the type of evidence that affects those determinations. Hence, the April 2010 letter meets the VCAA's content of notice and timing requirements. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA treatment records. Also of record and considered in connection with the appeal are various written statements provided by the Veteran. The Board finds that no additional RO action to further develop the record in connection with the claim for service connection, prior to appellate consideration, is required. The Board acknowledges that the Veteran has not been afforded an examination to obtain an opinion regarding the etiology of the Veteran's breathing problems. However, as discussed further below, VA has no obligation to arrange for the Veteran to undergo examination or to obtain a medical opinion in connection with this matter. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran claims that his current disability manifested by breathing problems is due to in-service asbestos exposure. For asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate claims for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1t provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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, Part VI, par. 7.21(a)(1) & (2). The M21-1 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, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). The M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); See also Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 04-2000 (April 13, 2000), VA's General Counsel held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. The Veteran claims that he currently has a disability manifested by breathing problems due to exposure to asbestos during his service on the U.S.S. Northampton. Specifically, he contends that he was responsible for removing asbestos from the ship. See July 2010 NOD. Service records show that the Veteran's military occupational specialty was boatswain's mate. The RO determined that the Veteran's MOS was not one that is associated with a high incidence of asbestos exposure. There is also no evidence of actual exposure to asbestos during service. Notably, even if the Veteran did have asbestos exposure, as alleged, he has not been diagnosed with asbestosis or any other asbestos-related disease. The Veteran has been diagnosed with sleep apnea and empyema, which are not asbestos-related diseases. See M21-1, Part VI, par. 7.21(a)(1) & (2). In addition to claimed asbestos exposure, like the RO, the Board has considered the Veteran's service connection claim under other theories of entitlement to service connection, but also finds that there is no other basis for an award of service. Service treatment records (STRs) are negative for any complaints, findings, or diagnoses pertaining to breathing problems, to include sleep apnea or empyema. A March 1965 separation examination indicates that the Veteran's lungs and chest were normal. The first documented evidence of any disability manifested by breathing problems was in November 2000-35 years after service-when he was diagnosed with sleep apnea. March 2009 VA treatment records indicate that the Veteran had a middle lung lobectomy for empyema the previous year. Neither sleep apnea nor empyema (lung infection) is a chronic disease subjective to service connection on a presumptive basis, or on the basis of chronicity or continuity of symptoms. The Board also points out that the passage of many years between the Veteran's active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection for the disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, there is no medical opinion evidence or opinion even suggesting that there exists a medical nexus between service and any current disability manifested by breathing problems. Moreover, on these facts, VA is not required to arrange for a VA examination or to otherwise obtain a medical opinion in this regard. Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, for the reasons stated above, the Board finds that there is no competent, credible-and, hence, persuasive-evidence that the Veteran had any in-service injury or event related to current disability manifested by breathing problems. As discussed, above the Veteran's MOS was not one associated with asbestos exposure and the Veteran has not been diagnosed with an asbestos-related disease. Furthermore, the Veteran does not contend that his current disability is related to any in-service event other than alleged exposure to asbestos. As such, the Board finds that this claim does not meet the fundamental requirements necessary to obtain an opinion addressing the etiology of the Veteran's disability manifested by breathing problems. To do so, in this case would, in essence place the examiner in the role of a fact finder, a role that is the responsibility of the Board. In other words, any medical opinion which provided a nexus between current disability manifested by breathing problems and service would necessarily be based solely on the Veteran's current uncorroborated assertions asbestos exposure during service. A medical opinion premised on an unsubstantiated account of a claimant has no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Simply stated, arranging for the Veteran to undergo examination or to otherwise obtain a medical etiology opinion in connection with either claim under the circumstances presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See, e.g., Charles, 16 Vet. App. at 374-75; 38 U.S.C.A. § 5103(a)(2). Therefore, VA has no obligation to obtain a VA examination or medical opinion commenting upon the etiology of disability manifested by breathing problems. See 38 U.S.C.A. § 5103A(d); 3.159(c)(4); McLendon, 20 Vet. App. at 83. Finally, as for the Veteran's own lay assertions as to the etiology of currently claimed disability, the Board notes the Veteran, as a layperson, is certainly competent to report matters within his personal knowledge-such as the occurrence of an injury, or his or her own symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology, such as with respect to simple disabilities capable of being observed. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, a lay person without appropriate medical training and expertise simply is not competent to opine on more complex medical questions. See, e.g., Jandreau, 492 F.3d at 1377 (holding that a layperson cannot diagnose cancer). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Here, as the question of whether the Veteran's disability manifested by breathing problems, to include sleep apnea and empyema, is related to service is beyond the realm of a layman's competence, lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that service connection for a disability manifested by breathing problems must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a disability manifested by breathing problems, to include sleep apnea and empyema, to include due to exposure to asbestos, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs