**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 96-1756

[Sammie G. Nolen, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

On Appeal from the Board of Veterans\' Appeals

(Decided April 28, 1999 )

*Frank B. Angarola* was on the brief for the appellant.

*Michael P. Horan* and *Karen B. Levin* were on the reply brief for the
appellant.

*John H. Thompson*, Acting General Counsel; *Ron Garvin*, Assistant
General Counsel; *Joan E. Moriarty*, Deputy Assistant General Counsel;
and *Amy S. Gordon* were on the brief for the appellee.

Before KRAMER, FARLEY, and GREENE, *Judges*.

FARLEY, *Judge*: The veteran, Sammie G. Nolen, appeals a November 20,
1996, decision of the Board of Veterans\' Appeals (BVA or Board) denying
service connection for asbestosis. Record (R.) at 4. This appeal is
timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a).
For the reasons that follow, the Court will affirm the decision of the
BVA.

**I**. **RELEVANT BACKGROUND**

The veteran served in the U.S. Marine Corps from September 1943 to
February 1946, including combat in the Pacific Theater of Guam and
Okinawa. R. at 22, 24. Regarding his lungs, the veteran\'s service
medical records (SMRs) report acute bronchitis in February 1945. R. at
34. There are no references to asbestos exposure in any service records.

In a November 1991 chest x-ray, Dr. Robert G. Fraser found evidence of
pleural disease related to asbestos exposure. R. at 96. That same month,
Dr. A. David Russakoff described the veteran as a \"66 year old male
with a history of asbestos exposure\" and found pleural plaques on the
veteran\'s lungs which were consistent with the pleural disease related
to asbestos exposure. R. at 97. He did not state the source of the
exposure. In an August 1992 letter to VA, Dr. Joseph E. Welden, Jr., the
veteran\'s internist, stated \"I think it is important to realize that
this patient was exposed to asbestos and does have some pleural plaques
on his chest x-ray as well as suffering from chronic obstructive
pulmonary disease.\" R. at 104. He did not state the source of the
asbestos exposure.

At an April 1993 hearing regarding claims for service connection for
bronchitis and an increased rating for malaria, asbestos was discussed
in passing in the following exchange:

> Q. Are you under treatment for asbestosis or asbestos now? Are you
> being treated for that specifically?
>
> A. I don\'t think there\'s anything you can do for it at this stage,
> sir.
>
> Q. So, that\'s just part of the lung problems you have overall, is
> that correct?
>
> A. Yes, sir.
>
> Q. Which you feel started back in mustard gas exposure and yellow
> powder exposure on Guam?

A. Yes, sir.

R. at 122-23.

In a May 1993 statement, Dr. Frank Mazza reported a history related by
the veteran of working as a carpenter for U.S. Steel from 1946 to 1984.
R. at 130. \"Over that 38 years he had multiple jobs that included
sawing raw asbestos material which then aerosolized. He also made
gaskets that required sawing and punching of holes in them.\" *Id.* \"He
certainly appears to have evidence of asbestos related pleural disease
based upon his history and chest roentgenographic findings.\" R. at 131.
The report is silent as to any history of exposure in service.

The appellant submitted a July 1994 independent medical examination
conducted by Dr. Scott G. Donaldson, a private physician. During the
examination, the veteran informed Dr. Donaldson that he was a machine
gunner in the Pacific while in the Marines from 1943 to 1946. He also
indicated that upon retirement from the service, he went to work for
U.S. Steel as a carpenter where \"he worked extensively with asbestos
sawing, pipecovering, gaskets and asbestos bricks.\" R. at 127. The
report is silent about any reported exposure in service. Dr. Donaldson
diagnosed the veteran with, *inter alia,* bilateral pleural thickening
along both lateral hemithoraces consistent with prior asbestos exposure.
R. at 129.

In October 1994, the veteran filed a claim for service connection and
alleged that he was exposed to asbestos in service, specifically, while
being transported as a Marine on Navy ships. R. at 125. VA requested
additional information regarding any alleged exposure. R. at 139. He
responded that, after discharge, he worked for U.S. Steel, and that his
\"jobs did not involve or require the handling of insulation or
asbestos, however, \[he\] did come in contact with it on a few
occasions.\" R. at 141. He also indicated that he had ceased smoking in
1985. *Id.*

The regional office (RO) denied the claim. R. at 143. The RO reviewed
the evidence of record including the reports from Drs. Mazza and
Donaldson and explained that there was \"no conclusive evidence showing
the veteran was exposed to asbestos products during his period of
military service. The evidence does show that the veteran was employed
after his discharge from military service in occupations which exposed
him to asbestos products.\" R. at 144. The veteran filed a Notice of
Disagreement on March 14, 1995. R. at 147. A Statement of the Case was
issued. R. at 152-55. On his VA Form 9, Appeal to the Board of Veterans
Appeals (Form 9), the veteran asserted that he was exposed to asbestos
\"while aboard naval vess\[els\] enroute to various locations during
WWII\" and while he was a machine gunner using \"asbestos ammo belts to
carry the weapons when they became too hot from use.\" R. at 157. He
further stated that \"\[a\]fter service, \[he\] did come in contact with
asbestos on very few occasions\" and that \"\[he\] never told Dr.
Donaldson that \[he\] had worked with asbestos extensively.\" *Id.* The
veteran then indicated his belief that it was \"a well known fact that
asbestos was extensively used in the con\[s\]truction of naval
vess\[els\] during this period. One does not need to work with this
product to contract asbestosis, they only need to breath\[e\] the fibers
of broken or torn asbestos products.\" *Id.*

The BVA found the claim well grounded and proceeded to deny it on the
merits. In its decision, the Board referenced [Department of Veterans
Benefits, Veterans\' Administration, DVB Circular 21-88-8,
Asbestos-Related diseases]{.smallcaps} (May 11, 1988) \[hereinafter DVB
Circular\] (presently [VA Adjudication Procedure Manual,
M21-1]{.smallcaps}, Part VI, ¶ 7.21 (Aug. 26, 1996)). It noted that all
of the medical reports related his exposure to post-service employment
and that the veteran\'s claim of in-service exposure did not surface
until he filed a claim for service connection. It stated that his
transit as a passenger on a Navy ship in no way came close to the
activities of shipyard workers or Navy veterans who worked in boiler
rooms and gun turrets where there was a large amount of asbestos
insulation. It also dismissed the exposure-by-ammo-belt claim stating:
\"The veteran\'s assertions of asbestos exposure as a machine gunner
lack credibility as the source of his asbestos exposure when viewed in
light of his extensive post-service asbestos exposure.\" R. at 11. This
appeal followed.

**II. ANALYSIS**

A. Well-Grounded Claim

Section 5107(a) of title 38, U.S. Code, provides in pertinent part:
\"\[A\] person who submits a claim for benefits under a law administered
by the Secretary shall have the burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that the claim is
well grounded.\" The determination of whether a claim is well grounded
is a matter of law which this Court reviews de novo. *Grivois v. Brown*,
6 Vet.App. 136, 139 (1994). A well-grounded claim is \"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 \[§ 5107(a)\].\" *Murphy v. Derwinski*, 1 Vet.App. 78,
81 (1990). \"The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue presented
by the claim.\" *Grottveit v. Brown*, 5 Vet.App. 91, 92-93 (1993). Where
the determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the claim is
\"plausible\" is generally required. *Id.* at 93. In *Caluza v. Brown*,
the Court held that for such a claim to be well grounded, there
generally must be (1) a medical diagnosis of a current disability; (2)
medical or, in certain circumstances, lay evidence of incurrence or
aggravation of a disease or injury in service; and (3) medical evidence
of a nexus between an in-service injury or disease and the current
disability. 7 Vet.App. 498, 506 (1995), *aff\'d*, 78 F.3d 604 (Fed. Cir.
1996) (table); *see also Epps v. Brown*, 9 Vet.App. 341 (1996), *aff\'d*
*sub nom.* *Epps v. Gober*, 126 F.3d 1464 (Fed. Cir. 1997), *cert.
denied*, 118 S.Ct. 2348 (1998).

In addition, section 1154(b) of title 38, U.S. Code, allows combat
veterans to use lay testimony as acceptable proof of \"\[in-\]service
incurrence or aggravation of \[an\] injury or disease, if consistent
with the circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of such
incurrence or aggravation in such service.\" While this provision allows
a veteran\'s testimony to be used to satisfy the first *Caluza*
element\--evidence of an in-service incurrence or aggravation of a
disease or injury\--it does not affect the general requirement that the
second and third *Caluza* elements\--present disability and a nexus to
service\--be supported with evidence from a medical professional. *See
Arms v. West*, 12 Vet.App. 188 (1999); *Turpen v. Gober*, 10 Vet.App.
536, 539 (1997). The veteran must still \"submit sufficient evidence of
a causal nexus between that in-service event and his or her current
disability as required by *Caluza*.\" *Wade v. West*, 11 Vet.App. 302,
305 (1998) (§ 1154(b) does not obviate the third requirement, e.g.,
medical evidence of nexus, of a well-grounded claim).

Although the Board found the veteran\'s claim to be well grounded, a
review of the record by this Court indicates that it is not. The veteran
has failed to satisfy [all]{.underline} three of the elements required
for a well-grounded claim. The veteran\'s current diagnosis of
asbestosis is undisputed and satisfies one prong of the test for well
groundedness. In the veteran\'s Form 9, he asserts that he was exposed
to asbestos in service while he was being transported on Navy ships and
while he was using asbestos ammunition belts to carry weapons which
became too hot. R. at 157. Even assuming, without deciding, that the
appellant as a combat veteran could provide competent evidence of
in-service exposure, *but see* *Espiritu v. Derwinski*, 2 Vet.App. 492
(1992) (lay evidence is not competent evidence where expert evidence is
required), that would only fulfill another prong of the three prongs of
a well-grounded claim test. The veteran still has not presented
competent medical evidence of a nexus relating any current disability to
his service exposure. *See Caluza* and *Wade*, both *supra.* At best,
the physicians\' statements of record provide a nexus only between the
veteran\'s asbestosis and his employment with the U.S. Steel Company.
Thus, the appellant\'s claim is not well grounded. Although, the Board
erroneously found that the veteran\'s claim was well grounded, any such
error was harmless in view of the ultimate denial of benefits.
*Edenfield v. Brown*, 6 Vet.App. 432 (1994).

B. DVB Circular

The Court notes that VA has provided guidelines in the DVB Circular for
rating boards to use when considering asbestos compensation claims.
*See* *Ashford v. Brown*, 10 Vet.App. 120 (1997); *Ennis v. Brown*,
4 Vet.App. 523 (1993); *McGinty v. Brown*, 4 Vet.App. 428 (1993). In its
decision, the Board undertook an extensive review of the DVB Circular
and its criteria in light of the evidence, including the veteran\'s
service and post-service history, and weighed the credibility of the
evidence accordingly. Regarding any argument involving the Board\'s
assessment under the DVB Circular criteria, the Court holds that the
Board articulated adequate reasons or bases for its denial of the
veteran\'s claim for service connection for asbestosis. Even if the
Board\'s reasons or bases had been inadequate, any such deficiency would
be harmless error because there was \"no competent evidence showing that
this disease resulted from an alleged exposure to asbestos during
service . . . .\" R. at 13; *see* 38 U.S.C. § 7261(b) (\"\[T\]he Court
shall take due account of the rule of prejudicial error.\"); *Winters
v. West*, 12 Vet.App. 203 (1999); *cf.* *Ennis*, 4 Vet.App. at 527
(remand was appropriate where BVA failed to consider DVB Circular
criteria in its decision); *McGinty*, 4 Vet.App. at 432-33 (Board did
not discuss the DVB Circular and made conclusory statements regarding
asbestos exposure without providing any reasons or bases);

Finally, the Court will not entertain the argument raised by the veteran
for the first time in his reply brief that the Secretary\'s construction
of the DVB Circular violates the Equal Protection Clause of the
Constitution. *See* *Carbino v.  West*, 168 F.3d 32 (Fed. Cir. 1999)
(Court of Veterans Appeals properly declined to consider the
appellant\'s contentions which were raised for the first time in the
reply brief).

**III. CONCLUSION**

Upon consideration of the above, the Court holds that the appellant has
not demonstrated that the BVA committed either factual or legal error
that requires reversal or remand. *See* 38 U.S.C. §§ 5107, 7104(d),
7261; *Gilbert v. Derwinski*, 1 Vet.App. 49, 52-53 (1990). The November
20, 1996, BVA decision is AFFIRMED.