Citation NR: 9603559 Decision Date: 02/15/96 Archive Date: 03/07/96 DOCKET NO. 94-14 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for asbestosis. 2. Entitlement to secondary service connection for a left knee disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from August 1951 to August 1955. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 1987, the RO denied entitlement to service connection for asbestosis. The veteran was informed of this decision in February 1988, and he did not timely appeal. That decision is therefore final, and new and material evidence is necessary to reopen the claim. The RO did not consider the issue of new and material evidence; however the Board has a legal duty to consider this issue, and the Board finds that the issue is properly before it. See, Barnett v. Brown, 8 Vet.App. 1 (1995). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for asbestosis which he argues was incurred in service. He also contends that service connection is warranted for a left knee disability as secondary to his service-connected burn scar of the left leg. 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 new and material evidence to reopen the veteran’s claim of entitlement to service connection for asbestosis has been received, and the claim is reopened. On the issue of entitlement to secondary service connection for a left knee disability, the Board finds that the veteran has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. FINDINGS OF FACT 1. In a December 1987 unappealed rating decision, service connection was denied for asbestosis. 2. Evidence added to the record since the December 1987 decision includes evidence which is not duplicative or cumulative and which is sufficiently relevant and probative, when viewed in conjunction with the evidence of record to raise a reasonable possibility of an outcome different from that reached in December 1987. 3. No competent evidence has been submitted to show that the veteran has a left knee disability related to his service- connected burn scar of the left leg, and the claim is not plausible. CONCLUSIONS OF LAW 1. Evidence received since the December 1987 rating decision denying service connection for asbestosis is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1995). 2. On the issue of entitlement to secondary service connection for a left knee disability, the veteran has not submitted a well grounded claim. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Asbestosis Service connection for asbestosis was denied in an unappealed rating decision of December 1987. The veteran was informed of the decision in February 1988, and he did not timely appeal. Therefore, the December 1987 decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1995). However, the claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1995); Manio v. Derwinski, 1 Vet.App. 140(1991). New evidence is that which is not merely cumulative of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Material evidence is that which is sufficiently relevant and probative of the issue at hand to establish a reasonable possibility that the outcome would differ when the new evidence is considered in light of all the evidence. Id. Further, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The RO denied the veteran’s claim in December 1987, finding that while the veteran may have been exposed to asbestos during service, there was no current finding of asbestosis. The evidence submitted subsequent to the 1987 rating decision includes private medical records, VA examination reports, and VA treatment records. The Board finds that some of the evidence recently received is new and material to the veteran’s claim. A VA X-ray report dated in April 1987 noted that the veteran had pleural plaque formation, bilaterally, and it was reported that this indicated previous asbestos exposure and asbestos related pleural disease. VA treatment records show that the veteran was diagnosed as having asbestosis, pleural plaques in September 1987. In October 1993, the veteran was examined by VA, and the examiner noted that X-rays showed a moderate degree of interstitial fibrosis, and it was stated that this might be due to early stages of asbestosis. X-rays from the Lloyd Nolan Hospital and Health Centers, dated in August 1993 showed pleural thickening and some pleural plaque formation at the diaphragm. The above evidence is clearly new and material. There are diagnoses of asbestosis and clinical evidence of symptoms attributable to asbestosis. Accordingly, the claim is reopened. II. A Left Knee Disability The threshold question to be answered with respect to this issue is whether the veteran has presented evidence of a well-grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board finds that the veteran's claim for secondary service connection for a left knee disability is not well grounded, and there is no further duty to assist the veteran in the development of his claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). 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) (1995). Service connection may also be granted for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (1995). The grant of service connection for a particular disability requires that the facts, shown by the evidence, establish a cause-and-effect relationship between the service-connected disability and the development of the claimed condition. Service medical records show no complaint, diagnosis or treatment for a left knee disability. Treatment for complaints concerning the left knee occur in July 1993, when the veteran was examined by a private physician for complaints of knee pain. The diagnosis was likely osteoarthritis. When he was examined by VA in April 1994, the examiner noted that the veteran had a scar on the lower leg and that there was no obvious damage to the bones, nerves or any other area. There was no numbness, and pulses were palpable. There was no swelling or deformity of the knee, and no subluxation or instability. Motion was normal. X- rays showed no significant abnormality. The Court of Veterans Appeals (Court) has held that a claim for service connection may not be considered to be well grounded where there is no evidence which demonstrates the presence of the disorder alleged by the veteran at any time after discharge from service. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Where a determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). As stated above, in Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990), the Court defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). The test is an objective one which explores the likelihood of prevailing on the claim under the applicable standards. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Although the claim need not be conclusive, it must be accompanied by evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. 38 U.S.C.A. § 5107 (West 1991). Here, the record before the Board shows no left leg disability during service and none was noted on recent VA examination. The record contains no medical opinion or other medical evidence which would support the veteran's contention that he has a left knee disability secondary to his service- connected burn scar of the left leg. Absent evidence of any current disability which could be associated with service or with a service-connected disability, the Board finds that the claim is not plausible. Finally, the Board is aware of the veteran's statements regarding his opinion that he has a left knee disability secondary to his service-connected burn scar of the left leg. However, as a lay person, he is not qualified to proffer medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Although the Board has considered and denied the appeal concerning entitlement to secondary service connection for a left knee disability on grounds different from that of the RO, which denied the claim on the merits, the veteran has not been prejudiced by the Board's decision. This is because in assuming that the claim was well grounded, the RO accorded the veteran greater consideration than the claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). The veteran is free at any time in the future to submit evidence in support of his claim. Medical records of complaints and treatment of a left knee disability would be helpful in establishing a well-grounded claim, as well as medical opinion linking any current findings with his service-connected disability. Robinette v. Brown, 8 Vet.App. 69 (1995). ORDER The claim for service connection for asbestosis is reopened. Evidence of a well grounded claim not having been submitted, the claim of entitlement to secondary service connection for a left knee disability is dismissed. REMAND The veteran seeks service connection for asbestosis, which he claims was the result of exposure to asbestos in service. The record shows that the veteran worked as a boilerman during service in the United States Navy. One of the occupations involving asbestos exposure includes that of boiler technician. M21-1, Part VI, 7.68(b)(1), p. 7-XV-6 (September 21, 1992). The latency period for asbestosis may be of more than 45 years from very little exposure. M21-1, Part VI, 7.68(b)(2), p. 7-XV-7(September 21, 1992). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1 Part VI, 7.68(c), p.7-XV-7 September 21, 1992). 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, Part VI, 7.68(a)(1), p. 7-XV-6 (September 21, 1992). The record shows that the veteran has a history of exposure to asbestos in service. VA X-rays performed in April 1987 noted pleural plaques, bilaterally, and it was reported that this indicated previous asbestos exposure and asbestos related pleural disease. Medical records show that in July 1987, the veteran underwent pulmonary function tests (PFT) and X-rays at a VA facility. The PFT showed moderate to severe restrictive lung defect and mild obstructive defect, with small airway disease. The X-rays showed evidence of pleuropericardial fibrosis. On VA examination also in July 1987, the examiner noted that asbestos exposure could cause fibrosis of the pleura, asbestosis causing interstitial lung disease of the lung parenchyma, both giving rise to restrictive lung disease. The diagnosis was asbestosis of the pleura, possibly due to exposure in the shipyard in 1951- 1955. VA X-rays in September 1987 noted that the lungs appeared normal. Subsequently a sputum cytology report dated in October 1987 was noted by the examiner to be negative and in an addendum to the July 1987 examination report, the examiner opined that this did not rule out asbestosis. VA films taken in December 1987 showed pleural plaques; it was noted that the findings were virtually diagnostic of asbestos related pleural disease. VA outpatient records in 1987 and 1988 show diagnoses of asbestosis. The veteran was examined by VA in June 1988, and lung disease, asbestosis by history with residual shortness of breath and chronic cough was among the diagnoses. X-rays of the chest showed no significant abnormality, and PFT showed mild restriction and mild obstruction. Private medical records show treatment and hospitalization in 1991 and 1993 for various complaints. Chronic obstructive pulmonary disease (COPD) and bronchitis were diagnosed. A March 1993 report shows COPD with bronchitis exacerbation as the primary diagnosis. An August 1993 X-ray report showed some pleural thickening in the left hemithorax with some pleural plaque formation at the diaphragm; it was noted that no acute pulmonary disease had developed since March 1992. When the veteran was examined by VA in October 1993, the examiner noted that X-rays showed a moderate degree of interstitial fibrosis which could be caused due to the early stages of asbestosis. It was further stated that the calcium plaques observed in the past and mentioned on X-ray reports in 1987 could not be identified currently. The diagnosis was COPD which probably started as “chronic bronchitis.” PFT were recommended. Private PFT conducted in December 1993 showed moderately severe obstructive defect with mild restrictive defect as well. Most recently, the veteran was examined by VA in April 1994. Rales in both lower lung bases were noted. Clinical tests were pending, and a definite diagnosis was not given. Results of the PFT, if given are not of record. An X-ray report noted that there was no acute abnormality and no significant change. VA has a statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). That duty includes obtaining medical records when deemed necessary. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This duty also includes obtaining VA examinations when deemed necessary. Littke v. Derwinski, 1 Vet.App. 90 (1990). In light of the foregoing conflicting medical evidence, the Board is of the opinion that additional development is warranted prior to final appellate consideration. Accordingly, the case is remanded for the following actions: 1. The RO should contact the veteran and request the names and addresses and dates of treatment of all VA and non-VA health care providers who have treated him for a lung disability since service. After obtaining appropriate authorization, the RO should obtain copies of the records of any treatment so identified which are not currently of record, and associate them with the claims folder. Should that treatment involve chest X-rays, the actual chest X- ray films should also be obtained. The RO should specifically obtain the report PFT report, if conducted in April 1994. Failures to respond or negative replies to any request should be noted in writing and also associated with the claims folder. 2. After obtaining appropriate authorization, the RO should procure the actual chest X-ray films taken since 1987, as referred to in the body of this remand. 3. When the foregoing actions have been completed, the RO should schedule the veteran for examination by a board certified pulmonary specialist, if available. The purpose of the examination is to determine the nature and extent of any lung disability found to be present. All appropriate tests and studies should be performed, including, but not limited to, chest X-rays. Any indicated consultations should also be scheduled. The claims file and any accompanying X-rays must be reviewed by the examiner prior to the examination. Then, the examiner should render a definite diagnosis concerning the veteran’s pulmonary disability and determine if he has an asbestos-related disability with symptoms to include but not limited to pleural plaques, intertistitial fibrosis, and pleural effusions. 4. When the requested development has been completed, the RO should readjudicate the veteran's claim for service connection for asbestosis on a de novo basis. Should the decision remain adverse to the veteran, he and his representative must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. 38 C.F.R. § 20.302 (c) (1995). Thereafter, if in order, the claims folder should be returned to the Board for further appellate consideration. By this REMAND, the Board intimates no opinion as to the final disposition of any issue. The purposes of the REMAND are to procure clarifying medical information and to ensure compliance with due process of law. The veteran need take no action unless he is notified. F. JUDGE FLOWERS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -