concurring:
I concur in the result of the majority opinion but disagree in several regards with the analysis to support that result. First, the claim is not well grounded in that there is no medical nexus evidence to satisfy element (3) of Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table) (to well ground service-connection claim generally requires (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service in-currence or aggravation of disease or injury; and (3) medical evidence of nexus between claimed in-service disease or injury and current disability). The evidence most favorable to the appellant’s claim offered by Dr. Banner was that “one cannot totally rule out the possibility that asbestos could have contributed to this patient’s lung disease.” R. at 485. In Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the Court held that a “may or may not” opinion from a doctor regarding medical nexus did not establish sufficient plausibility. In my view, Dr. Banner’s statement is weaker than the statement rejected in Tirpak. Indeed, exactly how weak Dr. Banner’s opinion is as medical nexus evidence is made clear by his statement that the “the overwhelming probability is that asbestos was not involved.” R. at 485. Moreover, even if Dr. Banner’s statement could pass muster under Tirpak, it would only establish plausibility with respect to a relationship between the cause of death and asbestos exposure; it in no way suggests a relationship between cause of death and in-service asbestos exposure. Second, if indeed the appellant’s claim was well grounded under 38 U.S.C. § 5107(a), I do not believe that the duty to assist established by that section would have been fulfilled. As the appellant pointed out during oral argument, documents, such as the ship blueprints, might be available which could potentially indicate whether the pipes under which the veteran slept were wrapped with asbestos. Third, for the reasons stated in the joint dissent to the order denying a full Court decision in Morton v. West, 12 Vet.App. 477 (1999), I disagree with the majority’s Manual M21-1 general analysis as to how to determine whether a rule is substantive or interpretive. Morton v. West, 13 Vet.App. 205 (1999) (en banc order) (Stein-berg and Kramer, JJ., dissenting). Fourth, although I wholeheartedly agree that the Manual M21-1 and VA CiroulaR provisions in this case in no way can be construed to create a presumption of in-service exposure, I disagree with the majority’s statement, upon which it relies to demonstrate that those provisions do not involve a substantive right, that the Manual M21-1 and VA Ciroular merely interpret a statute or a rule. Indeed, the majority points to no statute or rule which is being interpreted nor am I aware of any.