Citation Nr: 0604671 Decision Date: 02/17/06 Archive Date: 02/28/06 DOCKET NO. 05-07 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for interstitial pulmonary fibrosis (asbestosis) due to asbestos exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from September 1955 to September 1959. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) which denied service connection for interstitial pulmonary fibrosis (asbestosis) due to asbestos exposure. The veteran requested a RO hearing in March 2005, but withdrew this request in June 2005. FINDING OF FACT The veteran does not have asbestosis and any current lung disease is not shown to be etiologically related to active service. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations modified VA's duties to notify and assist claimants. 38 U.S.C.A. §§ 5103, 5103A, 5107(a) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159(a)-(c) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must (1) inform the claimant of any information and evidence not of record necessary to substantiate the claim; (2) inform the claimant of any evidence VA will seek to provide; (3) inform the claimant of any evidence the claimant is expected to provide; and (4) ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In a December 2003 letter, VA informed the veteran of the evidence needed to substantiate his claim and the veteran was provided an opportunity to submit such evidence. An enclosure to the December 2003 letter enumerated evidence received by VA; evidence VA would reasonably seek to obtain (including medical records from the military, from or authorized by VA hospitals, or from the Social Security Administration); and information and evidence for which the veteran was responsible (including enough information to identify and locate records in possession of a Federal department or agency, all requested records not in possession of a Federal department and agency, as well as any other documents relating to disability during service). The veteran, in effect, was asked to provide any evidence that pertains to his claim. Additionally, in a February 2005 statement of the case, the RO provided the veteran with applicable regulations on VCAA notice requirements and VA's duty to assist; notified the veteran of pertinent regulations on service connection claims; and informed the veteran of reasons why his claim was denied. Thus, the Board finds, consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 (b), that the RO satisfied the notice requirements of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The December 2003 letter provided satisfactory VCAA notice to the veteran before issuance of the February 2004 rating decision. The timing and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). See generally Pelegrini v. Principi, 18 Vet. App. 112 (2004) (holding that failure to give requisite evidentiary notice prior to a RO decision denying a claim required remand, where VA failed to demonstrate that lack of such notice was not prejudicial to claimant). VA has provided veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for benefits. 38 U.S.C.A. § 5103A (West 2002). The veteran's service medical records, personnel records, VA treatment records, and VA examinations have been associated with the claims file. The veteran indicated in February 2005 and December 2003 statements, that he had no other medical evidence to submit. Finally, there is no indication that any pertinent evidence was not received. Thus, VA's duty to assist has been fulfilled. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. Therefore, the Board finds that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. The record is complete and the case is ready for review. B. Background and Evidence The veteran served on active duty from September 1955 to September 1959. In his October 2003 statement, the veteran claims that he was exposed to asbestos while he was working in the New York Naval Shipyard from January 1956 to May 1956 for the conversion and overhaul of the destroyer USS Benner D.D.R. 807 (USS Benner). He stated that his duties included chipping paint, painting mounts and decks, and painting and washing pipes wrapped in asbestos which were all over the ship. Further, the veteran stated that they lived on the ship all the time, and were exposed to and breathed large amounts of dust, day and night. The veteran also indicated that subsequent to service, from 1965 to 1979, he worked for Cape Ready Mix pouring concrete in the yard. Personnel records indicate that the veteran was stationed aboard USS Benner from December 1955 to May 1959. The veteran's representative submitted information from an internet web site indicating that from January 1956 to May 1956 USS Benner was in the New York Naval Shipyard for conversion and overhaul after it was badly damaged during a storm. A June 2005 report of contact, executed by the veteran's representative, states that in response to an internet inquiry on the history of USS Brenner, he was contacted by web site creator Mr. J.F. who says he served with the veteran in the Navy aboard USS Brenner, and who is 100 percent service connected for asbestosis. Mr. J.F apparently relayed information to the veteran's representative concerning the amount of asbestos on board the ship, the requirements of routine maintenance, and stated that they lived on the ship while they were dry docked for three or four months. Service medical records do not reflect any respiratory conditions, upon enlistment or upon his discharge in September 1959, nor do they contain any complaints, diagnosis, or treatment for any respiratory problems during service. In a September 2003 VA consultation note, the veteran denied any smoking for the past 23 years after an approximate 47 pack per year smoking history. The veteran reported that he spent 4 years in the Navy and was on ship most of that time. He stated that he had asbestos exposure while removing asbestos from USS Benner. He also stated that he worked with cement for about 20 years and complained of post service exposure to lime and cement dust. The veteran indicated that he felt these exposures were bad for his lungs and worried that he may get cancer from his asbestos exposure and stated that two other men from his ship have lung cancer. The veteran reported a family history of asthma. A pulmonary function test revealed mild restrictive lung disease and very severe obstructive lung disease. September 2003 VA x-ray studies reflect that the veteran was diagnosed with chronic obstructive pulmonary disease; probable pleural thickening laterally in the right hemithorax, where a developing pleural based lesion could not be ruled out; calcification involving the diaphragm, probably due to asbestos exposure; cardiomegaly, and emphysematous changes. An October 2003 computed tomography (CT) scan of the chest revealed atherosclerotic calcification, specifically a small calcified pleural plaque apparently in the diaphragmatic pleura of the lower right hemithorax, and mild irregular pleural thickening bilaterally. The CT scan showed no appreciable active infiltrate, effusion, or lymphadenopathy. The examiner also noted that heart size was in the upper limits of normal. In a January 2004 VA examination, after a review of the veteran's medical records and claims file, including a chest x-ray and pulmonary function test performed in September 2003, and a September [sic] 2003 CT scan, the examiner diagnosed the veteran with moderate restrictive lung disease and very severe obstructive lung disease. The examiner noted in the veteran's medical history that he was a long-standing smoker with a 47 pack per year smoking history and that he spent 4 years in the Navy. The veteran stated that he also worked for a cement company and had exposure to lime and cement dust for about 20 years. He developed shortness of breath about two years earlier. He stated that he stopped smoking in approximately 1980. The examiner referenced the textbook, Chest Medicine Essential to Pulmonary and Critical Care of Medicine, stating that that asbestos normally produces fibrosis. The examiner noted that the veteran did have one calcification, but stated that it usually does not cause respiratory problems, that fibrosis is normally what causes breathing problems and development of cancer secondary to asbestos itself. Since neither was noted, the examiner opined that the veteran's respiratory obstructive and restrictive lung diseases are not likely secondary to asbestos exposure. In March 2005, the veteran submitted a statement in regard to cement dust exposure stating that he worked in pre-casting areas where the cement was wet and that there were very little, if any, airborne pollutants. A September 2005 VA examination performed by a pulmonary specialist, reported that the veteran had a history of smoking, one pack a day for 20 years, up until he quit 25 years ago, that the veteran had worked in construction with concrete, and that he worked in a shipyard for 6 months while he was in the Navy. The examiner stated that the veteran did not have asbestosis. The examiner diagnosed dyspnea on exertion which was multifactorial, but most likely not related to asbestos exposure; probable obstructive sleep apnea; probable obstructive airways disease; rate uncontrolled atrial fibrillation; and asbestos exposure with pleural plaques. The examiner stated that the veteran has pleural plaques with pleural thickening, but noted that these do not usually cause shortness of breath. A full pulmonary function test was performed, the results of which are associated with the claims file. The examiner noted a significant increase in FEV1 as compared to the September 2003 study. In a September 2005 addendum to the September 2005 VA examination, the examiner, based on a review of a pulmonary function test, confirmed that the veteran does not have any restrictive lung disease from asbestos exposure. The test continued to show moderate obstruction, but no restriction, and improved FEV1 since the last study in 2003. The veteran was diagnosed with mild-moderate chronic obstructive pulmonary disease due to previous smoking. C. Law and Analysis The veteran is seeking service connection for asbestosis due to asbestos exposure. The Board has carefully reviewed the evidence and statements made in support of the claim and finds that the preponderance of the evidence weighs against the veteran's claim. Therefore service connection cannot be granted. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 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) (2005). The U.S. Court of Appeals for Veterans Claims (CAVC) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board notes that no statute specifically addresses asbestos and service connection for asbestos-related diseases, nor has the Secretary of Veterans Affairs promulgated any specific regulations. However, 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997). These provisions are not substantive, but must be considered by the Board in adjudicating asbestos related claims. VAOPGCPREC 4-2000 (2000); 65 Fed. Reg. 33,422 (2000). The guidelines note high exposure to asbestos and high prevalence of disease in insulation and shipyard workers due to the varieties of asbestos that were used extensively in military ship construction. M21-1, part VI, para. 7.21. Furthermore, the latent period between first exposure and development of disease varies from 10 to 45 or more years, and exposure to asbestos may be brief, as little as a month or two. Id. The most common disease is asbestosis, but asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See Id. In his October 2003 statement, the veteran claims he was exposed to asbestos while stationed on USS Brenner in the New York Naval Shipyard from January 1956 to May 1956. Personnel records show that he was stationed aboard USS Brenner at this time, but do indicate the location of the ship or his duty aboard the ship at this time. A lay statement from Mr. J.F. states that they were dry docked for refits and maintenance and that they were living aboard the ship during maintenance. In September 2003, and September 2005, the veteran was diagnosed with pleural plaques and pleural thickening due to asbestos exposure. The Board notes that the veteran claims that his disability is a result of asbestos exposure aboard USS Benner. However, because the veteran does not have a current asbestos related disability, the Board declines to make a decision at this time in regard to in-service asbestos exposure. Although a September 2003 VA examination stated that a developing pleural based lesion cannot be ruled out, the follow up October 2003 CT scan showed no appreciable pleural effusions. The January 2004 VA examination noted the pleural plaque and pleural thickening found in the October 2003 CT scan, but indicated that there was no fibrosis, and that calcification does not normally cause respiratory problems. Further, the September 2005 VA examination, performed by a pulmonary specialist, stated that the veteran has pleural plaques with pleural thickening, but stated that these do not cause shortness of breath, that the veteran does not have asbestosis, and that his dyspnea on exertion was most likely not related to asbestos exposure. The medical evidence taken as a whole, shows that the veteran has pulmonary findings, including pleural plaques and pleural thickening. Some examiners have linked the pleural plaques to asbestos exposure. However, no current asbestos related disability, including asbestosis, has been diagnosed. The veteran does not have fibrosis or pleural effusions indicating asbestosis. According to the January 2004 examination, his currently diagnosed severe obstructive lung disease and moderate restrictive lung disease is not likely secondary to asbestosis. Both the January 2004 and September 2005 examinations state that pleural plaques and pleural thickening do not usually cause respiratory problems or shortness of breath. Further, a September 2005 addendum to the VA examination confirms that the veteran does not have any restrictive lung disease from asbestos exposure, and that he has mild-moderate chronic obstructive pulmonary disease due to previous smoking. The Board has considered the veteran's own statements in support of his claims. The Board acknowledges the veteran's belief that he has asbestosis and his current symptoms are related to service, however, where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). D. Conclusion The record contains no competent evidence of asbestosis or other asbestos related disability, and the veteran's current lung disease is not related to asbestos exposure. As such, the veteran has failed to establish that disability was incurred or aggravated in service. Therefore, the Board concludes the preponderance of the evidence is against finding that the veteran has asbestosis etiologically related to active service. The appeal is accordingly denied. As the preponderance of the evidence is against the veteran's claim, service connection is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the veteran's claim. ORDER Service connection for asbestosis is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs