Citation Nr: 0209324 Decision Date: 08/07/02 Archive Date: 08/12/02 DOCKET NO. 97-29 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The veteran served on active duty from June 1944 to June 1946. The case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1997 decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The veteran appeared at a hearing held at the RO in October 1997. A transcript of that hearing has been associated with the record on appeal. The case was previously before the Board in December 1998, when it was remanded for further development. FINDINGS OF FACT 1. The veteran has provided competent evidence that he was exposed to asbestos during his military service. 2. Medical opinions are of record which reflect that the veteran has asbestosis and that this condition is related to asbestos exposure during service. CONCLUSION OF LAW With resolution of all reasonable doubt in the veteran's favor, asbestosis was incurred in military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the pendency of this appeal, there was a significant change in the law. Specifically, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001). In view of the favorable decision reached herein, the Board finds that there is no need for any additional development to comply with the requirements of the VCAA. Legal Criteria. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). Consequently, a claim for service connection requires evidence of a current disability, evidence of disease or injury during service, and evidence relating the current disability to the disease or injury during service. See 38 C.F.R. § 3.303 (2001). While there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has VA promulgated any regulations, VA has issued procedures on asbestos-related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos in VA ADJUDICATION PROCEDURE MANUAL, M21-1. VA must analyze the veteran's claim of entitlement to service connection for residuals of asbestos exposure under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to disorders related to asbestos exposure, the absence of symptomatology during service or for many years subsequent to separation does not preclude the eventual development of the disease. The latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the time length of exposure is not material, as individuals with relatively brief exposures of less than one month have developed asbestos-related disorders. VA Adjudication Procedure Manual, M21-1, Part VI, 7.21(b)(2). When considering VA compensation claims, rating boards have the responsibility for ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and to assure that development is accomplished to ascertain whether or not there is pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the United States Court of Appeals for Veterans Claims (Court) held that, while the veteran, as a lay person, was not competent to testify as to the cause of his disease, he was, however, competent to testify as to the facts of his asbestos exposure. McGinty, 4 Vet. App. at 432. Factual Background. The veteran's service personnel records indicate that he worked as an aviation ordnanceman. The veteran's service medical records do not reflect any complaint, treatment or diagnosis of asbestosis or other condition related to asbestos exposure. A. Siegel, M.D., in a November 1996 letter, noted that the veteran had been in the Navy for two years. Dr. Siegel diagnosed the veteran with asbestosis with lung nodule, and observed that the combination of interstitial and pleural findings were highly suggestive of asbestosis. In a March 1997 statement, the veteran stated that he was exposed to asbestos on every base at which he was stationed during service. He stated that, post service, from 1946 to 1949, he worked short stints at automobile factories which were "loaded with asbestos." He then worked for 21 years as a barber. Thereafter he worked as a locksmith which required that he drill holes in doors that were insulated with asbestos. A May 1997 statement from M. H. Millward, M.D., confirms that the veteran suffers from asbestosis. Dr. Millward stated that the veteran worked as a barber for the majority of his life, and that it is likely that the veteran's asbestosis was acquired during his military service. In a September 1997 letter, Dr. Siegel wrote that, "I suspect that [the veteran] acquired this disease in the Navy where he was enlisted for two years. Other occupations included a locksmith, barber, and he did work in an auto body plant for three weeks on two separate occasions. He said there was no exposure at any of these other jobs." At his October 1997 personal hearing, the veteran testified that he was exposed to asbestos on a Martin Mariner, which he explained was a plane used for submarine patrol, and on a PDY, Catalina. He stated that the planes were "loaded with" asbestos. He added that asbestos was "everywhere on the base as far as around heating elements and everything in the barracks itself." He recalled flying across the country in a hospital plane, "a C47," which had asbestos on the insulation on the inside. He explained that he worked as an ordnanceman. His duties included removing equipment, such as machine guns and torpedoes, from airplanes when they returned from patrol. He stated, contradicting his March 1997 statement, that he had little, if any, exposure to asbestos during his post-service employment. In the remand of December 1998, the Board directed the RO to obtain an opinion from a pulmonary specialist as to whether there is a causal relationship between any currently- manifested disorder of the veteran's respiratory system and asbestos exposure during service. In April 1999, a VA physician reviewed the records in this case and examined the veteran. The physician noted that the veteran reported that he had been exposed to asbestos in every area of his Naval experience from June 1944 to June 1946; and that his post-service employment history revealed that he had worked for six week at General Motors, was a barber for a large part of his career, and also did some locksmithing. The physician provided the following opinion: It is certainly felt at this time that veteran's history is consistent with asbestos exposure and with his pleural plaquing. It is certainly as likely as not that veteran does have asbestosis. Analysis. A review of the veteran's military personnel file confirms that the veteran's job description was of an aviation ordnanceman in the U. S. Navy. A review of U. S. Navy Ratings and Rates indicates that an aviation ordnanceman is responsible for maintaining, repairing, installing, operating, and handling aviation ordnance equipment. Duties also include the handling, stowing, issuing and loading of munitions and small arms. Military records contain no evidence which would tend to show that the veteran was exposed to asbestos in service and the file contains no other evidence, except for the veteran's statements, which would tend to establish such exposure. However, as noted above, the Court has held that the veteran is competent to testify as to the facts of his asbestos exposure. McGinty, 4 Vet. App. at 432. The veteran has provided competent testimony as to his exposure to asbestos during his service in the Navy and there is no evidence of record to rebut his testimony. Accordingly, the Board finds that in-service asbestos is established. The veteran has also provided medical evidence which establishes that he currently suffers from asbestosis and which links his current asbestosis to his exposure to asbestos during service. Dr. Millward and Dr. Siegel have linked the veteran's asbestosis to his military service. The VA physician who examined the veteran in April 1999 noted that the veteran reported that he had been exposed to asbestos in every area of his Naval experience from June 1944 to June 1946 and concluded that the veteran's history was consistent with asbestos exposure. This physician noted the veteran's post-service employment history but did not indicate that it included any asbestos exposure. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. As noted above, the reasonable doubt doctrine is for consideration when deciding whether the veteran was exposed to asbestos in service. Resolving such doubt in the veteran's favor, the Board concludes that in-service asbestos exposure has been established. Also, as to whether the veteran's current asbestosis is related to in-service asbestos exposure rather than to post-service asbestos exposure, the Board finds that the medical evidence as to this question is at least in equipoise. Resolving reasonable doubt in the veteran's favor as to this matter, the Board holds that the requirements for a grant of service connection for asbestosis are met. ORDER Entitlement to service connection for asbestosis is granted. Gary L. Gick Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.