BVA9407598 DOCKET NO. 92-17 085 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for residuals of a myocardial infarction. 3. Entitlement to service connection for chronic obstructive pulmonary disease. 4. Entitlement to service connection for non-Hodgkin's lymphoma. 5. Entitlement to service connection for cataracts. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION The veteran had recognized active service in the Merchant Marine from September 28, 1944, to October 27, 1944. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1991, from the Reno, Nevada, regional office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that was exposed to asbestos in service in the Merchant Marine which has now resulted in asbestosis, myocardial infarction residuals, chronic obstructive pulmonary disease, non-Hodgkin's lymphoma, and cataracts. He states his private doctor has diagnosed asbestosis based on his Merchant Marine asbestos exposure. The veteran also contends that not all of his qualifying service has been verified as active duty. He served on vessels from 1943 to 1947. However, he specifically recalls his voyage aboard the Fort William as involving heavy asbestos exposure. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for asbestosis, and that the veteran has not met the initial burden of submitting evidence of a well-grounded claim for service connection for myocardial infarction residuals, chronic obstructive pulmonary disease, non-Hodgkin's lymphoma, and cataract residuals. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's claim for service connection for asbestosis has been obtained by the originating agency. 2. The veteran had active service from September 28, 1944, to October 27, 1944. 3. The veteran had many years of asbestos exposure subsequent to service. 4. The veteran does not have asbestos-related lung disease. 5. Myocardial infarction, chronic obstructive pulmonary disease, non-Hodgkin's lymphoma, and cataracts were first demonstrated many years after service. 6. Competent medical evidence suggesting a connection between asbestos exposure and a myocardial infarction, chronic obstructive pulmonary disease, non-Hodgkin's lymphoma, or cataracts has not been presented. CONCLUSIONS OF LAW 1. Asbestosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 2. The veteran has not submitted evidence of a well-grounded claim for service connection for myocardial infarction residuals, chronic obstructive pulmonary disease, non-Hodgkin's lymphoma, or cataract residuals. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS First, regarding the veteran's contention that he has additional qualifying service, service in the American Merchant Marine in Oceangoing Service from December 7, 1941, to August 15, 1945, qualifies as active service, if certified by the Secretary of Defense as active military service. 38 C.F.R. § 3.7(x)(15) (1993). In this case, the only period of verified active service is the period from September 28, 1944, to October 27, 1944, aboard the Fort William. In support of his contention that he had additional qualifying service, he submitted portions of the official log-book for the M/S Cape Palmas, showing his name on the list of the crew for a voyage extending from August 30, 1945, to November 30, 1945. However, since this voyage did not commence until August 30, 1945, after the August 15, 1945 terminal date for qualifying service, he is not eligible for benefits based on service on that voyage. He has submitted no other evidence indicating the Defense Department was erroneous in its certification of service. A well-grounded claim requires the submission of evidence in support of the allegation. 38 U.S.C.A. § 5107; Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Moreover, the veteran also submitted a copy of the letter accompanying his certificate of service, from the United States Coast Guard, which informed him of the proper procedure to follow through the Maritime Administration in the event he disagreed with the certificate of service. In addition, the United States Court of Veterans Appeals (Court) has held that service department findings as to the fact of service in the U.S. Armed Forces are binding on VA for purposes of establishing entitlement to benefits. Duro v. Derwinski, 2 Vet.App. 530 (1992). Evidence submitted by the veteran without service department verification can be accepted only if that evidence is itself a document issued by the service department. Id., at 532; 38 C.F.R. § 3.203 (1993). Therefore, we are limited to consideration of the veteran's claim in light on his verified period of service aboard the Fort William. I. Service connection for asbestosis The veteran contends that he was exposed to asbestos during his verified period of active service, and that he now suffers from asbestosis as a result. At a hearing before a hearing officer at the Regional Office (RO) in July 1992, the veteran testified that he was on the Fort William during her maiden voyage, and a great deal of asbestos dust and fibers remained after the ship's recent construction. He indicated he had been heavily exposed to asbestos while clearing away the dust without any protection. He also testified that he worked in construction for a number of years after service, with no exposure to asbestos, and that he worked as a steamfitter from 1965 to 1978, again, with no exposure to asbestos. In addition to this sworn testimony, the veteran has submitted medical records from his private physician showing a diagnosis of asbestosis. Therefore, we find that the appellant's claim is plausible or well-grounded within the meaning of 38 U.S.C.A. § 5107(a). We further find that the relevant facts have been properly developed; therefore, the statutory obligation of the Department of Veterans Affairs (VA) to assist in the development of the appellant's claim has been satisfied. 38 U.S.C.A. § 5107(a). There are no medical records available pertaining to the veteran's one-month period of recognized active service during 1944. Records of treatment following service have been received from D. Graham, M.D., who provided copies of outpatient treatment, chest X-ray and pulmonary function test reports, and hospitalizations dated from 1978 to 1986. A hospital bill reflecting a hospitalization in July 1978 indicated he was hospitalized for a probable myocardial infarction and probable chronic obstructive pulmonary disease. A chest X-ray in July 1978 showed a granulomatous density in the right mid zone; the impression was old granulomatous disease. Outpatient treatment notes show diagnoses of status post myocardial infarction and chronic obstructive pulmonary disease in August 1978. In July 1980, questionable asbestosis was noted; reportedly, the veteran had worked around shipyards for 25 years, and was currently complaining of a cough. A chest X-ray revealed calcified densities consistent with old granulomatous disease, and linear densities most probably representing areas of atelectasis or scarring. A chest X-ray the following month, in August 1980, disclosed fibrocalcific residuals of old granulomatous disease in both lungs with discoid atelectasis and pleural scarring at both bases, with no definite evidence of pleural effusion. According to an outpatient treatment note dated in August 1980, spirometry revealed mild obstruction. In October 1980, Dr. Graham noted a diagnosis of asbestosis. However, a notation of January 1982 reported "asbestosis resolved (see Oct. 1981 correspondence)," and Dr. Graham's records are devoid of any further mention of asbestosis. (Although the October 1981 correspondence is not of record, from this reference, it does not appear to bolster the veteran's claim, nor is it otherwise indicated to be essential to the claim.) Pulmonary function tests in September 1982 showed an obstructive defect and were consistent with emphysema. Chest X-rays from 1982 to 1985 showed atelectasis, evidence of old granulomatous disease, and chronic obstructive pulmonary disease. Subsequent records similarly fail to confirm the presence of asbestos-related lung disease. Outpatient records from N. Prendergast, M.D., who treated the veteran for lymphoma, include a history obtained in March 1989, in which it was reported that the veteran had a history of heavy exposure to asbestos, having previously worked as a steamfitter. In connection with a VA examination, the veteran was referred to a board-certified specialist in pulmonary medicine who examined the veteran in January 1992. The veteran complained of shortness of breath on exertion, and coughing. Historically, he reported that he had been exposed to asbestos during World War II as a Merchant Marine. The pertinent clinical impression was chronic obstructive pulmonary disease, and "must rule out asbestosis." The examiner noted that he would be interested to see whether or not the veteran had pleural plaques that are pathognomic of asbestosis, and whether he had any restrictive impairment of lung function. Pulmonary function tests performed at a VA facility in January 1992 revealed an obstructive pattern of impairment, and a chest X-ray of December 1991 revealed chronic obstructive pulmonary disease. The pleural spaces were noted to be clear. Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Asbestosis is typically manifested many years after the exposure; the latent period varies from 10 to 45 or more years between first exposure and development of disease. VA Adjudication Procedure Manual, M21-1, Part VI, 7.68(b)(2) (Change 3, Sept. 21, 1992) (hereinafter, M21- 1). However, service connection may 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). The clinical diagnosis of asbestosis requires a history of exposure as well as radiographic evidence of parenchymal lung disease. M21-1, 7.68(c). In addition to the veteran's claimed exposure on board ship during his one month of active service, the veteran stated at his hearing that he spent a total of four years in the Merchant Marines, and later worked for many years in construction and as a steamfitter. In initially diagnosing asbestosis, Dr. Graham based the history of exposure on the veteran's work for a quarter of a century in shipyards; no specific mention of his Merchant Marine service was noted. Moreover, Dr. Graham later dropped the diagnosis of asbestosis. Consequently, although the veteran denied any significant post-service asbestos exposure at his hearing, the history as reported by Dr. Graham in 1980 and Dr. Prendergast in 1989 of significant post-service occupational exposure outweighs his testimony presented in connection with a claim for monetary benefits. The radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, or pleural plaques; granulomatous disease, atelectasis, or calcific changes are not included in this list of representative changes. M21-1, 7.68(a). The numerous X-ray reports of record do not show any of these abnormalities characteristic of asbestos exposure. Further, other than the 1980 diagnosis by Dr. Graham, "resolved" in 1981, asbestosis has never been diagnosed. The VA examination of January 1992 indicated asbestosis must be ruled out, but X-rays failed to reveal characteristic changes, and pulmonary function tests only showed obstructive impairment, whereas the examiner indicated he was looking for restrictive impairment. Accordingly, the preponderance of the medical evidence is against a diagnosis of asbestos-related lung disease, the only positive evidence being a diagnosis by Dr. Graham subsequently rescinded. Hence, the weight of the evidence is against the veteran's claim, and the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (1993). II. Service connection for myocardial infarction residuals, chronic obstructive pulmonary disease, cataracts, and non-Hodgkin's lymphoma. The appellant has the initial obligation to present a well-grounded, or plausible, claim. 38 U.S.C.A. § 5107(a) The veteran claims that he suffers from myocardial infarction residuals, chronic obstructive pulmonary disease, cataract residuals and non-Hodgkin's lymphoma as a result of asbestos exposure in service. He does not contend, nor does the evidence otherwise suggest, that he suffered from these disorders while he was on active duty. As noted above, the veteran was only on active duty for one month, and had many years of asbestos exposure outside of his brief period of active duty. Further, he has submitted no medical evidence indicating a connection between any of these diseases and asbestos exposure. Although he testified at his hearing that his physician, Dr. Graham, had told him there was a connection between his heart attack and asbestos exposure, there is no suggestion of such a connection to be found in Dr. Graham's records submitted in the course of the veteran's claim. The Court has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The veteran's statements regarding a matter which requires specialized medical knowledge, and is thus beyond his competence, is not sufficient to render the claim well-grounded. King v. Brown, 5 Vet.App. 19 (1993). The medical evidence of record simply shows a myocardial infarction in 1978; non-Hodgkin's lymphoma in 1989; aphakia with a history of cataract removal in 1969; and chronic obstructive pulmonary disease many years after service. Therefore, since there is no competent evidence to support the veteran's contentions, his claim is not well- grounded. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Finally, because we have determined that the veteran has not submitted a well- grounded claim regarding these issues, the VA is under no duty to assist him in further development of his claim. Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Murphy v. Derwinski, 1 Vet.App. 78 (1990). In two recent decisions, Grottveit v. Brown, 5 Vet.App. 92 (1993), and Grivois v. Brown, No. 92-289 (Jan. 5, 1994), the United States Court of Veterans Appeals (the Court) has addressed the threshold requirement set forth in 38 U.S.C.A. § 5107(a) that the veteran must submit a well-grounded claim. In these cases, the Court held that issues developed on the merits were, in fact, not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, at 92. The Court said, in reference to 38 U.S.C.A. § 5107(a), This statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which - as well-grounded - require adjudication. . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. Grivois, slip op. at 4. The Court further expressed its concern that a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because new and material evidence would be required, and that "the inertia created by a final denial in the calculus for readjudication is quite something else. We conclude that it is more appropriate to recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, at 93. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decision of the RO. Id.; Grivois, slip op. at 6. In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1993), not attach to the claims herein determined to be not well-grounded, and denied by rating decisions of July 1991 and March 1992. ORDER Service connection for asbestosis is denied. Well-grounded claims for service connection for myocardial infarction residuals, chronic obstructive pulmonary disease, non-Hodgkin's lymphoma, or cataract residuals not having been submitted, the claims are dismissed, and rating decisions of July 1991 and March 1992 are vacated insofar as service connection for these disabilities was denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 W. H. YEAGER, JR., M.D. BETTINA S. CALLAWAY JACK W. BLASINGAME NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.