Citation Nr: 1805930 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 10-36 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1968 as a Communications Center Specialist. The Veteran contends that he was exposed to pipes and radar equipment, which were covered in asbestos while serving on active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) no longer employed by the Board. In 2017, the Board notified the Veteran that he had the right to request another hearing with the VLJ reassigned to the claim. To date, no response has been received and, therefore, the Board has considered this claim on the evidence of record, to include the transcript of the May 2011 hearing, which is included in the claims file. In May 2012, the Board remanded the Veteran's appeal with instructions to obtain the Veteran's service personnel records, to obtain any records extant related to the Veteran's treatment for asbestosis from the Veteran's private physician, to provide the Veteran with an opportunity to submit any records or correspondence related to his participation in an asbestos-related Class Action lawsuit, to provide another VA examination, and to then allow the RO to readjudicate the claim for service connection. The Veteran's service personnel and private medical records were obtained, the Veteran was provided an opportunity to submit and the VA attempted to obtain any records related to the Veteran's participation in an asbestos-related Class Action lawsuit, a VA examination was conducted in August 2017, and the RO readjudicated the claim for service connection in May 2017. The Board is therefore satisfied that the instructions in its May 2012 remand have been satisfactorily completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the Veteran's December 2017 brief mentions a diagnosis of chronic obstructive pulmonary disease (COPD), but notes that the Veteran has failed to specifically claim COPD and, if the Veteran intends to make such a claim, he may do so by filing VA Form 21-526 Application for Compensation or Pension. FINDING OF FACT The Veteran's asbestosis is not related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that VA has made numerous attempts to obtain any evidence as it relates to the Veteran's post-service employment history, post-service asbestos exposure, and his participation in an asbestos-related lawsuit. In February 2009, VA sent a letter to the Veteran requesting additional information regarding his asbestosis claim, to include post-service employment physical examinations and other medical and exposure evidence. In July 2009, an additional letter was sent to the Veteran requesting similar information, to include post-service employment and medical evidence. At the end of July 2009, the Veteran acknowledged receipt of the July 2009 letter and indicated that he would submit more information or evidence to VA to support his claim; despite this, no information or evidence was submitted. A July 2010 Statement of the Case (SOC) notified the Veteran that the evidence available for review at that time did not establish exposure to asbestosis during military service. The July 2010 SOC also acknowledged that the Veteran was monitored for asbestos exposure in relation to his post-service employment. In August 2010, the Veteran included a statement with his VA Form 9 Formal Appeal, at which time he stated that he would provide additional evidence to VA in support of his claim for service connection for asbestosis; again, no records were submitted. In May 2011, at his hearing, the Veteran testified that he received compensation in relation to an asbestos-related lawsuit and that he was represented by a law firm for this matter; however, he was unable to recall additional specific details. In May 2012, the Board remanded the Veteran's appeal, specifically noting that the Veteran should provide any personal records or correspondence related to his participation in an asbestos-related Class Action lawsuit, and a letter was sent to the Veteran in May 2012 requesting this specific information. Also in May 2012, the VA requested records related to the Veteran's participation in an asbestos-related Class Action lawsuit directly from the law firm identified by the Veteran. Thus, from at least February 2009, the Veteran has been on notice that VA requested additional evidence related to his post-service employment, post-service asbestos exposure, and any participation in an asbestos-related Class Action lawsuit. The Board notes that VA has made all reasonable attempts to obtain this evidence; and the Veteran was provided the opportunity to obtain and submit these records on multiple occasions. To date, no records have been submitted. Under these circumstances, the Board finds that the VA's attempt to obtain the asbestos-related Class Action lawsuit records satisfactorily complies with the instruction of the May 2012 remand. See Stegall. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. Service Connection The Board notes that the Veteran has claimed entitlement to service connection for asbestosis. The Veteran contends that there is a causal relationship between his diagnosed asbestosis and his period of active duty service. Specifically, the Veteran contends that his current diagnosis of asbestosis was caused by exposure while serving on active duty to pipes and radar equipment, which were covered in asbestos. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Regarding the Veteran's assertion that he has a respiratory disability that is related to in-service asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases (DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular)) that 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. The guidelines provide that the latency period for asbestos- related diseases varies from 10 to 45 years or more between first exposure and development of disease. It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. The 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. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and, notably for this case, mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1 MR, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). Turning to the Veteran's period of active duty service, the service personnel records indicate that he service in the Air Force as a Communications Center Specialist. This carries a minimal probability of asbestos exposure, as noted per the M21-1, Part IV, Subpart ii, Chapter 1, Section I, Paragraph 3c. The Veteran's service treatment records (STRs) are silent for any pulmonary condition. Specifically, in August 1968 during the Veteran's separation examination, the Veteran denied any shortness of breath, asthma, and pain or pressure in his chest, and reported no abnormalities of his lungs or chest. The Veteran also denied any other condition not specifically mentioned during the examination. Post-service, in April 1995, the Veteran was seen by Dr. R.H., his private physician, who determined that the Veteran's chest x-ray results were consistent with asbestosis. The diagnosis is silent for any opinion as to the etiology of the condition, and there is no indication that the physician reviewed the Veteran's claims file or any portion thereof. In April 2004, the Veteran was seen at the VA's Community-Based Outpatient Clinic (CBOC) in Marietta, Ohio, at which time he reported no health complaints or history of health problems, other than a history of cysts, and the examination showed only an open area close to the axilia. In a statement submitted with his October 2009 Notice of Disagreement, the Veteran did not deny asbestos exposure during his post-service employment and, notably, the Veteran stated that he participated in an asbestos-related Class Action lawsuit against his post-service employer. That said, the Veteran now contends that his substantial asbestos exposure occurred while he served on active duty. In August 2017, the Veteran was provided a VA examination. The VA examiner, after examining the Veteran in person and reviewing the Veteran's claims file, determined that the Veteran's diagnosis of asbestosis was less likely than not incurred in or caused by the Veteran's period of active service. The examiner further stated that the Veteran's military occupation as a Communications Center Specialist carries a minimal probability of asbestos exposure, as noted per the M21-1, Part IV, Subpart ii, Chapter 1, Section I, Paragraph 3c. Based on this, and the fact that the Veteran stated that he participated in a post-service asbestos-related Class Action lawsuit, the examiner determined that it is more likely than not that any asbestosis noted on prior chest x-rays is related to the long-term, documented, post-service asbestos exposure. Regarding the first criterion for entitlement to service connection, the evidence of record indicates x-ray findings consistent with asbestosis. As such, the first criterion necessary for entitlement to service connection has been met. Turning to the second criterion for entitlement to service connection, the Veteran must show an in-service incurrence or aggravation of a disease or injury. Here, the Veteran asserts that he was exposed to asbestos in service. Although the Veteran's military occupation as a Communications Center Specialist carries a minimal probability of asbestos exposure, the Board notes that there is still some probability of exposure, as noted by the August 2017 VA examiner. That said, as detailed above, the Veteran's service department records do not reflect duties related to asbestos exposure; or of suffering from any chronic pulmonary condition. Concerning the third criterion for entitlement to service connection, the Veteran contends that there is a causal relationship between his present disability and his purported in-service asbestos exposure. As stated above, the VA examiner determined that the Veteran's diagnosis of asbestosis was less likely than not incurred in or caused by the claimed in-service injury, event or illness, and more likely than not caused by exposure to asbestos post-service. The Veteran was afforded the opportunity to provide evidence to the contrary; the Veteran's only evidence to dispute the VA examiner's determination was an October 2009 statement asserting that his substantial asbestos exposure occurred while he served on active duty. With regard to the Veteran's October 2009 statement, in which he attributes his claimed condition to his active duty service, the Veteran is competent to report difficulty breathing. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). However, the Veteran has not shown that he is competent (meaning medically trained) to make a complex medical determination involving the etiology of his asbestosis. See Jandreau. As such, the Veteran's statement is outweighed by the probative medical evidence of record. In summation, the most probative evidence is against a finding that the Veteran's claimed disorder was caused or aggravated during his period of active duty. As such, the Board finds that the evidence weighs against a finding that the Veteran's asbestosis is related to service. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the Veteran's claim, and as such entitlement to service connection for asbestosis is denied. ORDER Service connection for asbestosis is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs