BVA9507878 DOCKET NO. 91-51 544 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES Entitlement to service connection for asbestosis. Entitlement to service connection for postoperative residuals of a brain tumor. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran had active service with the United States Coast Guard-Merchant Marine from January 1942 to July 1945. This appeal arises from a March 1990 rating decision of the New York, New York, Regional Office (RO). In that decision, the RO denied service connection for asbestosis and for residuals of a brain tumor. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for asbestosis and for residuals of a brain tumor. He asserts that he was exposed to asbestos during his service in the Merchant Marine, and that he has been diagnosed with a respiratory disorder in recent years. He also asserts that he underwent surgery in 1970 for a brain tumor; he contends that the brain tumor was present during his period of active service. 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 claim for service connection for postoperative residuals of a brain tumor is not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim for service connection for asbestosis has been obtained by the originating agency. 2. The veteran does not currently have asbestosis or another asbestos-related disease. 3. The veteran has not submitted objective evidence of surgery to remove a brain tumor, of postoperative residuals of such a tumor, or of incurrence or aggravation of a brain tumor during active service. CONCLUSIONS OF LAW 1. Asbestosis or other asbestos-related disease was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 2. The claim for service connection for postoperative residuals of a brain tumor is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person claiming entitlement to VA benefits has the burden of submitting supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Affairs (Court) has defined a well grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993), the Court reflected that the quality and quantity of evidence required to meet the claimant's burden to submit a well grounded claim depended on the issue presented by the claim. Where the issue is one of fact, such as whether an injury occurred in service, a veteran's lay testimony may be sufficient to establish a well grounded claim. But, where the issue to be determined is one of medical causation or medical diagnosis, competent medical evidence indicating that the claim is plausible is required to establish a well grounded claim. The testimony of a lay person cannot constitute medical evidence of causation or diagnosis, because a lay person is not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). I. Service Connection for Asbestosis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). The veteran contends that he was exposed to asbestos during his active service, and that he now suffers from asbestosis as a result. In his December 1990 hearing at the RO, he reported that he worked as a messman, staying aboard a ship while the ship was in the shipyard being overhauled. He reported that there was asbestos in the compartments, and that he had to move asbestos out of the way to get to work in the morning. He stated that he has been treated for respiratory problems, and that in 1987 hyper-reactive airway disease was diagnosed by magnetic resonance imaging (MRI). He reported that his doctor told him that the diagnosis was "either good for smoking or asbestos." The claims file contains many recent medical records with respect to the veteran's respiratory system. In a few instances, these records included findings not inconsistent with asbestos-related respiratory problems: a 1988 private examination report noted that the veteran had dyspnea on exertion, and reports of 1991 chest x-rays noted calcified granuloma in the right upper lobe. We find that this medical evidence is sufficient to establish a well grounded claim. As the veteran has presented a well-grounded claim for service connection for asbestosis, VA has a duty to assist him in the development of that claim. 38 U.S.C.A. § 5107 (West 1991). Service records and extensive medical records regarding the veteran's respiratory system have been associated with the veteran's claims file. We are satisfied that all relevant facts have been properly developed, so that the VA's statutory obligation to assist the veteran in the development of his asbestosis claim has been satisfied. 38 U.S.C.A. § 5107 (West 1991). When all of the medical evidence of record is reviewed, the preponderance of the evidence indicates that the veteran does not currently have asbestosis or another asbestos-related disease. United States Public Health Service records of medical treatment of the veteran from 1942 to 1960 included several negative chest x-rays, a few notations of acute cough or cold symptoms, and no findings of chronic respiratory disease. October 1986 chest x- rays revealed no evidence of active pulmonary disease. In August 1988, a computerized tomography (CT) of the veteran's chest was reported to be normal, with the lung fields clear. In August 1988, the veteran was examined by G. Rammohan, M.D., a private physician. Dr. Rammohan reported that the veteran complained of a cough with sputum, sometimes blood-streaked, over the past year, as well as dyspnea on exertion, intermittent wheezing and chest pain. The veteran was reported to be a one pack per day smoker for forty years, and to have worked on ships in the merchant marine handling coal and asbestos pipes for several years. Examination revealed no clubbing or leg edema. Lung examination revealed few rhonchi bilaterally, and no rales. Chest x-rays revealed slightly increased hyperlucency with no mass, effusion, calcification or pleural plaques. Dr. Rammohan diagnosed hyper-reactive airway disease related to smoking, and noted a question of whether the veteran had asbestosis because of his exposure. The report of magnetic resonance imaging (MRI) of the veteran's chest in September 1988 noted that the pulmonary parenchyma and mediastinum were unremarkable. No abnormal pulmonary parenchymal mass lesions were present, and there were no pleural masses or effusion. The vascular structures in the mediastinum were within normal limits. Chest x-rays taken in March 1990 revealed no acute infiltrates. In January 1991, respiratory testing revealed a mild obstructive ventilatory defect with hyperinflation. The report of January 1991 chest x-rays noted a one centimeter calcific sclerotic area in the first costochondral junction on the right, thought by the examiner to be a possible granuloma over the lung parenchyma. There were no infiltrates and no acute pathology. In the course of VA outpatient treatment in 1991, the veteran requested an MRI for possible asbestosis. He reported that he was exposed to asbestos in the Merchant Marine for 23 years. September 1991 chest x-rays were reportedly within normal limits for the veteran's age group, with no infiltrate, consolidation or plaque formation noted. In further testing performed by the veteran's private physicians, October 1991 chest x-rays revealed calcified granuloma in the right upper lobe, and no active disease. An October 1991 MRI of the chest revealed no pleural changes, no evidence of asbestos, and no parenchymal nodules. A March 1992 CT scan of the chest revealed no evidence of mass lesion and no pleural abnormality. On VA examination in September 1993, there were no rales and no rhonchi. Chest x-rays revealed no active pulmonary pathology, but the presence of a calcified node. The examiner's assessment was chronic bronchitis or hyper-reactive airway disease. The examiner noted a history of exposure to asbestos, but no radiological evidence of pleural plaque suggestive of asbestos exposure. The preponderance of the medical evidence indicates that a question of asbestosis or other asbestos-related disease was raised because of the veteran's reported exposure to asbestos, but that no such disease has been found despite considerable testing. Because the veteran does not currently have asbestosis or another asbestos-related disability, his claim for service connection for asbestosis is denied. Service Connection for Postoperative Residuals of a Brain Tumor The veteran contends that he has had a brain tumor, and that the tumor was present during his period of active service. In his December 1990 hearing at the RO, he reported that he underwent a craniotomy in 1970, and that a large tumor was removed. He reported that the surgery was performed at New York University by a Dr. Benjamin. He asserted that the tumor was present during his military service, but was not removed until 1970. He reported that skull x-rays taken in 1945 showed protruding bumps, and that reports of a spinal tap in 1949 showed high cerebral spinal fluid pressure and high protein levels. The claims file contains a large volume of United States Public Health Service records of medical treatment of the veteran at various facilities. The earliest of these records are dated in 1942, and the most recent cover treatment provided in 1960. There is no finding of a brain tumor in any of these records. The 1970 craniotomy is noted as history reported by the veteran in some medical treatment records, but the veteran has not submitted any of the records of the 1970 craniotomy or other treatment pertaining to a brain tumor. The veteran has not indicated what residual conditions, if any, are currently attributable to the tumor or the surgery. Nor has he submitted any medical finding or opinion that a brain tumor removed in 1970 was incurred in or aggravated by his military service in the 1940s. Because the veteran has not submitted any objective evidence of a brain tumor, of residuals of a tumor or surgery, or of service origins or aggravation of a tumor, we conclude that the veteran's claim for service connection for postoperative residuals of a brain tumor is not well grounded. In two recent decisions, Grottveit v. Brown, 5 Vet.App. 92 (1993), and Grivois v. Brown, 6 Vet.App. 136 (1994), the Court has addressed the threshold requirement set forth in 38 U.S.C.A. § 5107(a) (West 1991) that the [appellant] 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, 5 Vet.App. 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, 6 Vet.App. at 139. 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, 5 Vet.App. at 93. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decision of the RO. 5 Vet.App. at 93, 6 Vet.App. at 141. In view of the clear direction given by the Court, finality in accordance with 38 C.F.R. § 3.104 (1993) must not attach to the rating decision of March 7, 1990 with respect to the claim for service connection for postoperative residuals of a brain tumor. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for asbestosis is denied. A well-grounded claim for service connection for postoperative residuals of a brain tumor not having been submitted, the claim is dismissed, and the rating decision of March 7, 1990, with respect to this issue is vacated. BETTINA S. CALLAWAY 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 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.