Thursday, December 22, 2011

THE ISSUE: Entitlement to service connection for a pulmonary disorder, to include as due to asbestos exposure.


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


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