Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service
connection may also be granted for any disease diagnosed
after discharge when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Citation Nr: 0802538 Decision Date: 01/23/08 Archive Date: 01/30/08 DOCKET NO. 02-13 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a pulmonary disorder, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from June 1974 to May 1978. This case initially came before the Board of Veterans' Appeals (Board) on appeal from the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In October 2002, the Board remanded the claim for a videoconference hearing, but the veteran withdrew his request for a hearing in April 2005 correspondence. The Board again remanded the claim for additional development in May 2005 and August 2006. Substantial compliance having been completed the case has been returned to the Board. Since the last supplemental statement of the case, the veteran has submitted additional evidence. In a December 2007 informal hearing presentation, the veteran's representative waived the RO's consideration of this new evidence. See 38 C.F.R. § 20.1304(c) (2007). In July 2006, the Board granted the veteran's motion to advance his case on the Board's docket. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT Competent medical evidence of record supports a finding that a pulmonary disorder is more likely than not the result of asbestos exposure during the veteran's active military service. CONCLUSION OF LAW With resolution of reasonable doubt in the veteran's favor, an asbestos-related pulmonary disorder was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection The veteran asserts that he has an asbestos-related pulmonary disorder caused by exposure to asbestos exposure while serving as a machinist's mate aboard ship while on active duty in the United States Navy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. 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, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (hereinafter "M21-1MR"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. See VAOPGCPREC 4- 2000 (April 13, 2000), published at 65 Fed. Reg. 33422 (2000). VA must analyze the veteran's claim of entitlement to service connection for an asbestos-related pulmonary disorder under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1MR contains guidelines for the development of asbestos exposure cases. Paragraph (a) lists common materials that may contain asbestos including steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Paragraph (b) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis or asbestosis. Inhaling asbestos fibers can also lead to pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Paragraph (d) notes that the latency period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. Paragraph (e) provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Paragraph (h) provides that VA must determine whether service records demonstrate evidence of asbestos exposure during service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information pertinent to the veteran. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran has submitted a great deal of evidence to support his contention that he was exposed to asbestos while serving in the Navy, including on line research, articles, training manual excerpts, and "buddy" statements. The veteran's service personnel records show that he was a machinist's mate who was assigned to the engine room of the U.S.S. Neosho during his service. Multiple letters written by fellow sailors detail asbestos exposure by the veteran, and an August 2005 letter from the contractor assigned with dismantling the ship the veteran served aboard reported that after the ship was 50 percent dismantled asbestos disposal logs showed that 186.35 tons of asbestos had been removed. This letter also notes that the ship had significant levels of asbestos in certain areas, including the engine room. The evidence of record shows that the veteran was exposed to a significant amount of asbestos while in service. A December 1999 CT (computed tomography) scan report prepared by Dr. "G.S." of the Dubois Regional Medical Center was interpreted to show the veteran with interstitial fibrotic changes. A private physician, Dr. "A.I.," diagnosed the veteran with mild restrictive lung disease (January 2000), mild interstitial pulmonary fibrosis (August 2000), and asbestosis (January 2001) based on this CT scan and pulmonary function tests. Doctor "A.I." also indicated in his August 2000 letter that it was likely that the veteran developed mild interstitial pulmonary fibrosis during service, possibly related to asbestos exposure at that time. A VA examiner in October 2000 diagnosed the veteran with mild interstitial pulmonary fibrosis but could not state with certainty whether the veteran had asbestos related disease. The VA examiner and Dr. "A.I." both indicated that manifestations such as pleural plaques would strengthen an association between interstitial pulmonary fibrosis and exposure to asbestos, and that a lung biopsy would provide the most definitive diagnosis. Further examination was requested to clarify the matter, and in March 2006 a VA examiner concluded that the veteran had no restrictive lung disease based on contemporaneous chest x- rays and pulmonary function tests. The Board then remanded the claim for another VA examiner to review the evidence and identify the precise nature and etiology of any lung disorder in light of all of the medical evidence, portions of which were conflicting. The veteran was afforded this VA examination in May 2007. A pulmonary function test that day was reported as normal. In explaining some of the conflicting evidence, the examiner stated that a CT scan was more extensive than a chest x-ray and that where there may not be any changes noted on a chest x-ray they may still be evident on a CT scan. She also noted that the most recent CT scan, from 2003, was negative. Given that pulmonary function testing was normal dating back to 2003 and a CT scan dated from 2003 was reported as normal, the examiner stated that she could not find any objective evidence of any defined pulmonary disorder. She recommended another CT scan. After the examiner obtained a June 2007 CT scan and results she added an addendum to the examination report which stated that after review of the actual film with another physician, she felt the veteran had very mild interstitial fibrosis in both lungs. She noted that there was no evidence of pleural plaques that would associate this fibrosis with the veteran's asbestos exposure. Given that pulmonary function tests were normal, she still felt it was more likely than not that the veteran's current complaints were not related to interstitial fibrosis or asbestos exposure incurred while in the military. She stated that she could not totally rule out that interstitial fibrosis may be associated with asbestos exposure, and explained that she would suspect that if this were the case there would be evidence of progression reflected in decline of pulmonary function tests. Therefore, it was her opinion that it is more likely than not that the mild interstitial fibrosis is not related to asbestos exposure incurred in the military. Earlier in her report, the examiner explained that pleural plaques help differentiate asbestos-induced parenchymal disease from other interstitial lung disease. Pulmonary fibrosis with an associated pleural plaque is more likely to support asbestosis-related fibrotic disease from other interstitial lung disease. She also relayed that an open lung biopsy would be the most definitive diagnosis. As noted above, the October 2000 VA examiner and Dr. "A.I." also both indicated that pleural plaques would strengthen an association between interstitial pulmonary fibrosis and exposure to asbestos, and that a lung biopsy would provide the most definitive diagnosis. An open lung biopsy was performed by a private physician in October 2007. According to the report associated with this procedure, two pleural plaques were found. The current competent medical evidence shows interstitial pulmonary fibrosis confirmed by a June 2007 CT scan. Different medical professionals have on multiple occasions stated that the presence of pleural plaques would help differentiate asbestos-induced parenchymal disease from other interstitial lung disease. Pleural plaques were found during an October 2007 lung biopsy, the procedure that multiple physicians have stated would provide the most definitive diagnosis. Considering the above, the Board is of the opinion that the evidence is at least in equipoise as to whether or not the veteran's interstitial pulmonary fibrosis is related to his in-service asbestos exposure. Therefore, resolving reasonable doubt in the veteran's favor, service connection for an asbestos-related pulmonary disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for an asbestos-related pulmonary disorder is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
