Citation Nr: 1745246 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 13-28 661A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis or an asbestos-related disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran did not work in an occupation in service which is recognized by VA as being one in which he would have had a high risk of asbestos exposure. 2. The most probative evidence is against a finding that the Veteran has asbestosis or any other respiratory disability causally related to, or aggravated by, service. CONCLUSION OF LAW The criteria for service connection for asbestosis (or an asbestos-related disability) have not been met. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The evidence reflects that the Veteran had symptoms of asbestos prior to 2010; however, he has not provided VA with examination/treatment records from that time-period and he has not provided VA with authorization for it to obtain any such records despite VA notification to him of what is necessary to substantiate his claim. The duty to assist is not 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. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, VA does not have a further duty to assist the Veteran. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a). Service-connection for asbestos-related diseases 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, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. 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, part IV, Subpart ii, Chapter 2, Section C, Topic 2 (Mar. 4, 2017). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: fibrosis, including asbestosis or interstitial pulmonary fibrosis; tumors; pleural effusions and fibrosis; pleural plaques, mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). See M21-1, part IV, Subpart ii, Chapter 2, Section C, Topic 2(b). However, service connection is not automatic and a probative medical nexus opinion is still required. 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 IV, Subpart ii, Chapter 2, Section C, 2(d). The M21-1 provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Diagnostic indicators 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, part IV, Subpart ii, Chapter 2, Section C, 2(g). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he worked and lived in World War II era buildings while stationed in Lackland, Texas, and in Denver, Colorado. He asserts that "asbestos piping was abundant in these buildings and the 'dust' would be on all flat surfaces. We cleaned these building[s] daily [without] any protective gear." He contends that this has caused asbestosis. A July 2010 private record (Orlando Health) reflects that the Veteran was seen for a follow-up CT scan to a July 2009 CT scan. The July 2010 record further noted that the Veteran had a history of asbestosis. The Veteran has not provided VA with authorization to obtain any records prior to September 2010 and he has not provided any records prior to July 2010. Thus, the Board does not know when the Veteran began experiencing symptoms or when he was diagnosed with asbestosis. September 2010 correspondence from Dr. A. Johnston (MD Anderson Cancer Center) reflects that the Veteran has "radiographic evidence of asbestos exposure". The correspondence is negative for a date of diagnosis, a history as to when he was exposed, or an indication that he may have a disability causally related to active service. The Board acknowledges that that asbestos was used in some areas of the military. As noted above, the M21-1 provides a non-exclusive list of occupations that have higher incidents of asbestos exposure. The examples listed involve manual labor which has a risk of exposure to disturbed or loose asbestos. The Veteran's DD 214 reflects that his military occupational specialty (MOS) was as a photo interpreter specialist. Such an occupation has not been shown by competent evidence to be associated with this type of labor which would expose the Veteran to loose/disturbed asbestos fibers. Moreover, the Veteran has not contended that his duties pertaining to this MOS included working directly with asbestos products. The Veteran has not been shown to be able to identify asbestos from other types of insulation material. Regardless, assuming arguendo that the pipes in buildings were wrapped in asbestos, the evidence still does not support a finding that any "dust" in the buildings was due to asbestos as opposed to some other substance (e.g. pollen, sloughed-off dead skin cells, fabric fibers, dust mites). Quite simply, the Veteran has not provided competent evidence as to why any pipe insulation of asbestos would have been disturbed (e.g. torn) in his presence and that he would have been exposed to asbestos fibers and inhaled such. In sum, the only evidence of record regarding whether the Veteran himself was exposed to asbestos in service is lay evidence describing his presence in a World War II era building, wherein he cleaned up dust; this statement was made more than four decades after separation from service, and the Board notes that memories may fade or be inaccurate over time. More importantly, while the Veteran is competent to describe this activity, there is no record of any such duty or why he would be cleaning up dust on a daily basis considering his MOS. Further, has not demonstrated that he has any expertise qualifying him to otherwise identify asbestos building materials. Accordingly, the Board finds there is no credible competent evidence that the Veteran was exposed to asbestos during service. There is insufficient evidence to find that the Veteran was exposed to asbestos while in service. In addition, even if he had some amount of exposure to asbestos in service, there is no competent credible evidence of record that his asbestosis, or any asbestos-related disability, is as likely as not causally related to his service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to asbestosis is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs