Citation Nr: 0123875 Decision Date: 10/01/01 Archive Date: 10/09/01 DOCKET NO. 01-01 481 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for mesothelioma. REPRESENTATION Appellant represented by: Janice M. Savinis, Attorney ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from April 1957 to March 1961. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2000 RO rating decision that denied service connection for mesothelioma. By letter of March 2001, the veteran withdrew a pending hearing request. In September 2001, the Board granted a motion from a U.S. senator to advance the veteran's appeal on its docket because good or sufficient cause was shown. FINDINGS OF FACT 1. During service, the veteran was probably exposed to asbestos. 2. Mesothelioma was not present in service or until 1999, and is related to a history of exposure to asbestos. CONCLUSION OF LAW Mesothelioma is due to disease or injury incurred in active service. 38 U.S.C.A. § 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303(d) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual Background The veteran had active service from April 1957 to March 1961. Service medical records are negative for findings of asbestos exposure or a malignant tumor. The report of the veteran's medical examination in March 1961 for separation from service does not show the presence of mesothelioma. Service documents show that the veteran served on board the U.S.S. Norriss. A history of the U.S.S. Norriss reveals that this ship was laid down in 1944 by Bethlehem Steel Corp. and commissioned in 1945. This history shows that the ship served in the Mediterranean from August to December 1957 and the Red Sea during this deployment period, then served in TF Bravo, an experimental antisubmarine development group, until her next 6th Fleet duty, from June to August 1960. The history does not show that this ship underwent repairs from 1957 to 1961. Evidence provided by the veteran shows that ships built during World War II typically used asbestos materials in pipe and bulkhead lagging and for other purposes. Affidavits dated in April 1989, signed by medical doctors that have extensive experience in work with asbestos related diseases, one who worked for VA at the time, are to the effect that mesothelioma is a malignant tumor or disease causally related to exposure to asbestos. The affidavits note that exposure to an exceedingly small amount of asbestos, totally invisible even by optical microscope, might suffice to cause mesothelioma. It was noted that when asbestos products were cut with a saw, hammered, or handled in such a way as to bump against structures, vast quantities of asbestos fibers were potentially released. If a crane or other large equipment banged into a steamline covered with asbestos insulation, billions of asbestos fibers were released in the resulting dust debris. It was noted that minimal exposure to asbestos dust was sufficient to cause asbestos related disease. VA and private medical records show that the veteran was treated and evaluated for medical problems from 1997 to 2000. The more salient medical reports with regard to the claim being considered in this appeal are discussed below. The medical records do not show the presence of mesothelioma before 1999. A summary of the veteran's VA hospitalization from May to June 1999 shows that he was admitted for treatment of a tumor in the left upper lobe area. He underwent left upper lobe lobectomy, thoracotomy, a CT (computed tomography) of the head, and a CT of the chest. Laboratory study during this hospitalization confirmed the presence of mesothelioma. The diagnoses were tumor of left upper lope, status post left upper lobectomy with mesothelioma; hypertension; benign prostatic hypertrophy; arthritis; and degenerative joint disease. Veteran's exhibit "F" is a letter to a VA physician asking, among other things, whether the veteran's past history of asbestos exposure in the Navy caused, or was a significant contributing factor in the development of, his mesothelioma. Veteran's exhibit "G" is the response to the effect that if the veteran had a past history of exposure to asbestos, then it "can be a significant contributing factor[.]" The veteran's September 1999 affidavit indicates he served aboard U.S.S. Norriss from 1959 to 1961; that asbestos-lagged pipes ran along the ceilings and bulkheads throughout the ship; that firing of the guns and full-speed runs were regular parts of training exercises; that during firing and full-speed runs there was such vibration throughout the ship that visible dust would fall from the insulation; and that he was regularly exposed to airborne dust created in that manner. A VA letter dated in October 1999, signed by a medical doctor, notes that the veteran was being treated for mesothelioma. It was noted that the veteran's life expectancy was probably less than one year. The veteran's work history was received in October 1999. In it, it was reported that he worked in personnel at the Norfolk Air Station from 1957-1959, and in personnel and as a gun loader during general quarters on board the U.S.S. Norriss from 1959-1961. It was noted that he worked as a state trooper from 1961-1966; in an assembly line in Flint, Michigan, in 1966; as a product scheduling coordinator for Patterson-Kelly from 1967-1971; as a shop supervisor for General Electric (Carbon Products Operation, Inc.) from 1971 to 1992; as a claims clerk for a County Job Center from 1993- 1995; as a construction worker from 1995-1996; and as a senior technician for a Bowling Lanes company from 1997-1998. A private medical report dated in January 2000, veteran's exhibit "B", notes that the veteran had a history of exposure to asbestos from 1959 to 1961 while on board the U.S.S. Norriss, in 1966 while working at a Chevrolet plant, from 1967 to 1971 while working for Patterson-Kelly Corporation, while working for General Electric/Carbon Products Operation, Inc. from 1971 to 1992, and from 1995 to 1996 while working for Gary Gallerie as a construction worker. The veteran's work history was obtained from an a report submitted by the veteran. It was noted that medical records showed the veteran had left pleural epithelial mesothelioma. The physician opined that the veteran's history of occupational exposure to asbestos up until 1985 was a causative factor of the mesothelioma. The physician's curriculum vitae reveals that he has extensive experience in the field of pulmonary disorders, including mesothelioma, and that he has published numerous medical articles on this subject. A February 2000 VA physician's note, veteran's exhibit "C", indicates the veteran claimed to have been exposed to asbestos during his Naval career. The physician stated that, if so, the veteran "should be considered 100 percent service-connected for disability purposes." Various medical and scientific literature was submitted in 2000. This evidence is to the effect that exposure to asbestos is the single most important causative agent of mesothelioma. Cigarette smoking is not a factor. This literature also indicates that malignant mesothelioma can occur via household exposure to asbestos. B. Legal Analysis The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5103A, and 5126, and codified as amended at 5102, 5103, 5106 and 5107 (West Supp. 2001)) redefined VA's duty to assist a veteran in the development of a claim. Guidelines for the implementation of the VCAA that amended VA regulations were published in the Federal Register in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The Board finds that all relevant evidence has been obtained with regard to the veteran's claim for service connection for mesothelioma. He has been provided with a VA examination and he and his representative has been provided with a statement of the case that discusses the pertinent evidence, and the laws and regulations related to the his claim, that essentially notifies them of the evidence needed by the veteran to prevail on the claim. The veteran's representative has been given the opportunity to submit written argument. A report of contact dated in August 2001 shows that a VA representative telephoned the veteran and notified him of the evidence needed to substantiate his claim for service connection for mesothelioma. The veteran reported that he continues to receive treatment for this condition at a VA medical facility and that a Dr. Roda had written letters on his behalf. While a report from Dr. Roda is of record showing that the veteran has mesothelioma, the reports of his current VA treatment and additional information from Dr. Roda have not been obtained because this evidence is not needed to adjudicate the veteran's claim as the Board concedes that the veteran has mesothelioma and that this condition is due to exposure to asbestos. Under the circumstances, the Board finds that the veteran has been provided with adequate notice of the evidence needed to successfully prove his claim and that there is no prejudice to him by appellate consideration of the claim at this time without a prior remand of the case to the RO for providing additional assistance to the veteran in the development of his claim as required by the VCAA or to give the representative another opportunity to present additional evidence and/or argument. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Hence, no further assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The veteran asserts that his mesothelioma is due to exposure to asbestos in service. The provisions of the Veterans Benefits Administration Adjudication Procedure Manual M21-1, Part VI, Paragraph 7.21, must be considered and addressed by VA in the adjudication of a claim based on exposure to asbestos in service. Ashford v. Brown, 10 Vet. App. 120 (1997); VAOPGCPREC 4-2000. Those provisions indicate that varieties of asbestos were used in military ship construction during World War II and the evidence shows that the veteran served on the U.S.S. Norriss, a ship constructed during that time. The manual provisions also require VA to perform all relevant development with regard to claims based on exposure to asbestos. As noted above, no further assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim being considered in this appeal. In this case, the evidence clearly shows that the veteran has mesothelioma and that it is related to exposure to asbestos. The question now for the Board to decide is whether the veteran was exposed to asbestos in service that was a causative factor of his mesothelioma. The private medical report dated in January 2000 links the veteran's mesothelioma to exposure to asbestos in service and after service. This opinion is based on the veteran's reported history of exposure to asbestos in service, and evidence from his previous employers. The official service records do not show that the veteran was exposed to asbestos in service. The veteran essentially asserts that he was exposed to asbestos while on the U.S.S. Norriss from the firing of guns and the vibrations of the ship under full power that would release dust from pipe lagging and insulation into the air, and while visiting friends who worked in the boiler room. These assertions are to the effect that he was exposed while performing normal activities while on board the U.S.S. Norriss. The April 1989 medical affidavits indicate that exposure to an exceedingly small amount of asbestos and totally invisible even by optical microscope was sufficient to cause mesothelioma. Those affidavits also note that when asbestos products were cut with a saw, hammered, or handled in such a way as to bump against structures, vast quantities of asbestos fibers were potentially released. If a crane or other large equipment banged into a steamline covered with asbestos insulation, billions of asbestos fibers were released in the resulting dust debris. It was noted that minimal exposure to asbestos dust was sufficient to cause asbestos related disease. This evidence indicates that very little exposure to asbestos is sufficient to cause mesothelioma, but there must be some exposure. There is no substantial question that the veteran has mesothelioma, or that his mesothelioma is due to asbestos exposure. There is no evidence to the contrary. Rather, there are two questions posed by the record. First, was the veteran exposed to asbestos in service? Second, if the veteran was exposed in the manner he describes, is that exposure, in the context of his total lifetime exposure, a sufficient basis for service connection? As for the first question, the veteran is competent to testify about the facts of his exposure. McGinty v. Brown, 4 Vet. App. 428 (1993). As in most other matters of proof, his testimony need not be believed, but cannot be ignored. Here, the Board finds nothing exceptionable in his description of dust shaken from pipe lagging. Other evidence establishes that the pipe lagging was probably made with a substantial amount of asbestos, and that asbestos-laden dust is prone to become suspended in the surrounding air when disturbed. Thus, the Board finds that the veteran was probably exposed to asbestos in service. The second question is more troubling. It would be impossible to quantify his in-service and civilian exposures. But it is not at all clear that he would need to show that at least 50 percent of his lifetime exposure occurred in service. From the medical opinions and the submitted literature it appears that, even if he never took a breath outside of service, his exposure in service could be sufficient to have caused his mesothelioma. Of course, the opposite is also true. However, there are some factors worth mentioning. His in-service exposure took place before any other known exposure. His civilian exposure was no more intense than the in-service exposure; that is, he did not follow a brief Navy career with 30 years of pipe insulation work that could eclipse his earlier exposure by comparison. And his many years of heavy cigarette smoking are not a factor-in this case, the evidence shows that the disease was specifically the result of asbestos exposure. The Board finds that the evidence on this point is in equipoise, and the matter should be settled in the veteran's favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for mesothelioma is granted. J. E. Day Member, Board of Veterans' Appeals