Citation Nr: 0403998 Decision Date: 02/11/04 Archive Date: 02/23/04 DOCKET NO. 03-06 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for mesothelioma, claimed due to asbestos exposure during service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.D. Jackson, Counsel INTRODUCTION The veteran served on active duty in the United States Navy from August 1954 to October 1957. This case comes before the Board of Veterans Appeals (BVA or Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (the RO). FINDINGS OF FACT Competent medical evidence reveals that the veteran's claimed lung disorder is causally related to his military service, including exposure to asbestos. CONCLUSION OF LAW A lung disorder, mesothelioma was incurred as a result of the veteran's naval service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is claiming that, as a result of asbestos exposure in military service, he eventually developed lung cancer. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620-32 (Aug.29, 2001). 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Upon careful review of the claims folder, the Board finds that all required notice and development action specified in this statute have been complied with during the pendency of the current appeal. Specifically, the Board finds that the January 2003 statement of the case (SOC) and correspondence from the RO to the veteran, including a September 2002 VCAA letter, notified him of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence he was expected to provide. In addition, the RO asked him to submit any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The service medical records do not show treatment, complaints or diagnoses regarding a lung disorder. Post service private medical records relate that in June 2002, the veteran complained of shortness of breath. A computerized tomography (CT) scan revealed left pleural effusion. In July 2002 thoracotomy and thorascopy was performed which revealed malignant mesothelioma. In an August 2002 statement the veteran's private physician concluded: [The veteran] has a history of working on a Navy destroyer escort for 2 1/2 years. His bunk during that time, was underneath a pipe heavily insulated with asbestos. It is quite likely that he acquired his mesothelioma from asbestos exposure during that time. The veteran has continued to receive private medical care for malignant mesothelioma. The veteran's service medical records relate that he served on naval ships including the U.S.S. Darby and the U.S.S. Healy in 1956 and 1957. In his notice of disagreement received in November 2002, the veteran reported that he was exposed to asbestos, especially during the decommission of the ships, when dust and debris were prevalent in the air. He also provided an employment history showing post-service occupations not generally associated with asbestos exposure: office worker and restaurant manager. Criteria and Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Where a veteran served 90 days or more during a period of war and cancer becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. 3.303(d) (2002); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (Court) observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. The Board notes that the DVB circular has been subsumed verbatim as VA Adjudication Procedure Manual M21-1, Part VI, par. 7.21 (M21-1). M21-1 provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The guidelines provide that the latency period for asbestos- related diseases varies from 10-45 years or more between first exposure and development of disease. It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). In a recent decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that M21-1 does not create a presumption of exposure to asbestos for any class of veterans. Rather, M21-1 suggests that asbestos exposure is a fact to be determined from the evidence. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. When considering VA compensation claims, rating boards have the responsibility of 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. The evidence in the record, including the previously mentioned medical opinion, constitutes a sufficient basis to conclude that the veteran's mesothelioma is due to asbestos exposure in service. The veteran's statements describing his in-service duties and living environment aboard ship are credible. The veteran is competent to relate such information. Further, a private oncologist commented that the mesothelioma was related to military service. On review of the record, there is no probative evidence to suggest that the current diagnosis is not related to service; specifically, that the veteran was likely exposed to asbestos other than in service. Accordingly, considering the veteran's recitation of his in-service duties together with the medical evidence that establishes currently diagnosed mesothelioma and links this disorder to the veteran's military service, the Board finds that service connection for mesothelioma, must be granted. ORDER Service connection for a lung disorder, mesothelioma is granted. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2