Citation Nr: 0404870	
Decision Date: 02/20/04    Archive Date: 02/27/04

DOCKET NO.  03-08 486A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to service connection for residuals of exposure 
to asbestos.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Mark J. Swiatek, Counsel


INTRODUCTION

The veteran retired from active duty in May 1974 after having 
completed more than 19 years of active military service 

This matter is on appeal to the Board of Veterans' Appeals 
(Board) from a February 2002 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida.  The RO denied entitlement to 
service connection for residuals of asbestos exposure.


FINDING OF FACT

The probative and competent medical evidence establishes the 
veteran has pleural disease which cannot satisfactorily be 
dissociated from his likely exposure to asbestos during 
military service.


CONCLUSION OF LAW

Asbestos related pleural disease was incurred in active 
military service.  38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.103, 3.303 (2003).


REASONS AND BASES FOR FINDING AND CONCLUSION

Factual Background

The veteran's service records show he was assigned to several 
ships during his nearly 20 years of active service including 
the USS SAN MARCOS (LSD-25), USS WAHKIAKUM COUNTY (LST-1162), 
USS KRISHNA (ARL-38), USS ROCKBRIDGE (APA-228) and USS RIGEL 
(AF-58).  He was examined for reenlistment in August 1964 at 
the Boston naval shipyard dispensary and seen at the shipyard 
medical facility in May 1964.  His principal military 
occupation specialty was "commissaryman" (CS).  His service 
medical records, including the April 1974 physical 
examination for retirement purposes and variously dated chest 
X-rays are unremarkable regarding asbestos exposure or any 
surveillance therefore.   

The military personnel records show sea duty aboard the USS 
SAN MARCOS (LSD-25) and USS WAHKIAKUM COUNTY (LST-1162) 
during the 1950's, naval shipyard assignment in 1964-65, duty 
on board the USS ROCKBRIDGE (APA-228), and USS KRISHNA (ARL-
38) during the early 1960's, and beginning in the late 60's 
he was assigned to the USS RIGEL (AF-58).  During the late 
1960's he was also assigned to the USS WILKINSON (DL-15).

The veteran filed his initial compensation claim with VA in 
January 2001 for "asbestosis" asserting that he was 
diagnosed with "asbestosis" at a VA hospital in late 2002.  
The VA clinical records that the RO obtained from this 
facility included a discharge summary for the veteran's 
hospitalization from September 2000 to October 2000 for 
another disorder.  During that admission a computerized 
tomographic (CT) scan of the lungs and pleura was obtained on 
account of a history of "asbestosis exposure" with a 
marginated mass on a chest X-ray.  Specific to the lungs and 
pleura, the CT scan was read as showing mainly multiple 
bilateral pleural plaques.  The findings were deemed most 
consistent with asbestos-related pleural disease as alluded 
to in the clinical history.  The impression included multiple 
pleural plaques, mostly calcified, consistent with asbestos 
related pleural disease.  

VA clinical records dated in late October 2000 noted a 
clinical history of pulmonary plaques and that a comparison 
had been made with the X-ray examination obtained in late 
September 2000.  According to the report there was persistent 
blunting of costophrenic angles with known pleural plaquing.  

In March 2001 the veteran wrote regarding exposure to 
asbestos and recalled several ships he served on during his 
military service and shipyard duty.  He stated that he had 
not had contact with asbestos since his naval service and he 
recalled the VA evaluation he received for asbestos exposure.  
He stated in his notice of disagreement that he did not 
personally remove this material but that he was exposed to it 
having been in ship yards when aboard ships being overhauled.  
He subsequently recalled having removed asbestos from galleys 
of two vessels and repeated a history of no exposure since 
military service.  




Criteria

The United States will pay compensation to any veteran 
disabled by disease or injury incurred in or aggravated by 
active military service, who was discharged or released under 
conditions other than dishonorable from the period of service 
in which the disease or injury was incurred, provided the 
disability is not the result of the person's own willful 
misconduct.  38 U.S.C.A. §§ 1110, 1131 (West 2002).

The United States Court of Appeals for Veterans Claims (CAVC) 
has held that, in order to prevail on the issue of service 
connection, there must be medical evidence of a (1) 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 present disease 
or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  

A disability may be service-connected if it results from an 
injury or disease incurred in, or aggravated by, military 
service.  38 U.S.C.A. §§  1110, 1131; 38 C.F.R. § 3.303 
(2003).  

Notwithstanding, service connection may be granted for 
disease that is diagnosed after discharge from military 
service, when all of the evidence establishes that such 
disease was incurred in service.  38 C.F.R. § 3.303(d) 
(2002); see Cosman v. Principi, 3 Vet. App. 303, 305 (1992).

In Voerth v. West, 13 Vet. App. 117 (1999), the CAVC held 
that the appellant had not submitted medical evidence 
providing a nexus between an in-service injury and a current 
disability.  The CAVC held that where a claimant's personal 
belief, no matter how sincere, was unsupported by medical 
evidence, the personal belief cannot form the basis of a 
claim.


In determining whether an injury or disease was incurred in 
or aggravated in service, the evidence in support of the 
claim is evaluated based on the places, types and 
circumstances of service as shown by service records, the 
official history of each organization in which the veteran 
served, the veteran's medical records, and all pertinent 
medical and lay evidence.  Determinations as to service 
connection will be based on review of the entire evidence of 
record, with due consideration to the policy of the 
Department of Veterans Affairs to administer the law under a 
broad and liberal interpretation consistent with the facts in 
each individual case.  38 U.S.C.A. § 1154(a) (West 2002); 38 
C.F.R. §§ 3.303(a), 3.304 (2003).

Statement of policy. Every claimant has the right to written 
notice of the decision made on his or her claim, the right to 
a hearing, and the right of representation. Proceedings 
before VA are ex parte in nature, and it is the obligation of 
VA to assist a claimant in developing the facts pertinent to 
the claim and to render a decision which grants every benefit 
that can be supported in law while protecting the interests 
of the Government. The provisions of this section apply to 
all claims for benefits and relief, and decisions thereon, 
within the purview of this part 3.  38 C.F.R. § 3.103.

The Board shall be bound in its decisions by the regulations 
of the Department, instructions of the Secretary, and the 
precedent opinions of the chief legal officer of the 
Department.  38 U.S.C.A. § 7104(c).

In the consideration of appeals, the Board is bound by 
applicable statutes, regulations of the Department of 
Veterans Affairs, and precedent opinions of the General 
Counsel of the Department of Veterans Affairs. The Board is 
not bound by Department manuals, circulars, or similar 
administrative issues.  38 C.F.R. § 19.5.

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the appellant 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); 38 C.F.R. §§ 3.102, 4.3 
(2003).



The Secretary shall consider all information and lay and 
medical evidence of record in a case before the Secretary 
with respect to benefits under laws administered by the 
Secretary.  When there is an approximate balance of positive 
and negative evidence regarding any issue material to the 
determination of a matter, the Secretary shall give the 
benefit of the doubt to the claimant.  38 U.S.C.A. § 5107.


Analysis

Preliminary Matter: Duties to Notify & to Assist

At the outset, it should be noted that on November 9, 2000, 
the President signed into law the Veterans Claims Assistance 
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 
(2000).  

This law eliminates the concept of a well-grounded claim, 
redefines the obligations of VA with respect to the duty to 
assist, and supersedes the decision of the CAVC in Morton v. 
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. 
Gober, 14 Vet. App. 174 (2000) (per curiam order), which had 
held that VA cannot assist in the development of a claim that 
is not well grounded.  

This change in the law is applicable to all claims filed on 
or after the date of enactment of the VCAA, or filed before 
the date of enactment and not yet final as of that date.  
VCAA, Pub. L. No. 106-475, §7(b), 114 Stat. 2096, 2099-2100 
(2000), 38 U.S.C.A. § 5107 note (Effective and Applicability 
Provisions).

On August 29, 2001, the final regulations implementing the 
VCAA were published in the Federal Register.  The portion of 
these regulations pertaining to the duty to notify and the 
duty to assist are also effective as of the date of the 
enactment of the VCAA, November 9, 2000.  66 Fed. Reg. 
45,620, 45,630-32 (August 29, 2001) (now codified at 38 
C.F.R. § 3.159).




The Board, however, is satisfied that all necessary 
development pertaining to the issue of entitlement to service 
connection for claimed residuals of exposure to asbestos has 
been properly undertaken.  See for example Charles v. 
Principi, 16 Vet. App. 370 (2002).

The Board is confident in this assessment because the 
evidence as presently constituted is sufficient in 
establishing a full grant of benefits.  Therefore, any 
outstanding development not already conducted by VA is 
without prejudice; hence, any deficiencies, real or 
perceived, in the duties to notify and to assist constitute 
harmless error.

Additional development by the Veterans Benefits 
Administration Appeals Management Center (VBA AMC) would only 
serve to further delay resolution of the claim.  Bernard, 
supra.  See also Mariano v. Principi, 17 Vet. App. 305, 312 
(2003) cautioning against seeking additional medical opinion 
where favorable evidence in the record is unrebutted.


Service Connection

Following the point at which it is determined that all 
relevant evidence has been obtained, it is the Board's 
principal responsibility to assess the credibility, and 
therefore the probative value of proffered evidence of record 
in its whole.  Owens v. Brown, 7 Vet. App. 429, 433 (1995); 
see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden 
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (and cases 
cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); 
Hensley v. Brown, 5 Vet. App. 155, 161 (1993).



The veteran has not submitted documentary evidence so the 
Board is not faced with the consideration of internal 
consistency, facial plausibility, and consistency with other 
evidence submitted on behalf of the claimant.  Caluza v. 
Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 
Vet. App. 341, 345 (1999) (Observing that in a case where the 
claimant was also a physician, and therefore a medical 
expert, the Board could consider the appellant's own personal 
interest; citing Cartwright v. Derwinski, 2 Vet. App. 24, 25 
(1991) (holding that while interest in the outcome of a 
proceeding "may affect the credibility of testimony it does 
not affect the competency to testify." (citations omitted).  
The veteran is competent as a lay person to recall 
circumstances of likely asbestos exposure and his history is 
not inconsistent with known opportunities for exposure, 
albeit brief or incidental, regardless of his principal 
military rating.

The Board reiterates the basic three requirements for 
prevailing on a claim for service connection: (1) medical 
evidence of a current disability; (2) medical or, in certain 
circumstances, lay evidence of in-service aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed in-service injury or disease and a 
current disability.  See Hickson, supra.

The Board's review of the appellant's case at hand discloses 
that he served on board several Navy vessels and at a 
shipyard during his long-term active military service.  The 
effect of application of the pertinent governing criteria to 
the veteran's case at hand is that consideration must be 
given to the circumstances of his service and the proviso 
that a disease may be linked to military service although 
initially manifested after service.  Simply stated the 
absence of notation of a claimed disability in official 
service records is insufficient to prevent service connection 
at a later date.  

In summary, the RO found the VA radiology findings were 
consistent with asbestos related pleural disease, but that 
his service records failed to establish exposure or 
treatment.  Although conceding he served in a shipyard and on 
board vessels, the RO concluded that in view of his rating, 
absence of evidence that he had worked with ship insulation 
or had had exposure to damaged lagging, weighed against the 
claim.  

Apparently, the record had to show that he removed the 
material or was required to work with it.  Then the statement 
of the case advised there was no clinical correlation for the 
radiology findings or evidence of etiology and no credible 
evidence of any asbestos-related lung disease.  

VA has provided guidance for claims based on asbestos-related 
diseases in its Adjudication Procedure Manual M21-1 (Manual 
M21-1).  The guidelines recognize that exposure may be brief, 
only one or two months, or indirect as a bystander which 
seems to be consistent with the veteran's overall level of 
exposure.  As for a diagnosis of asbestosis (interstitial 
pulmonary fibrosis), the guidelines require a history of 
exposure and radiographic evidence of parenchymal lung 
disease.  

However, here the veteran has radiographic evidence of 
asbestos-related pleural disease with advanced diagnostic 
radiology confirming the X-ray findings.  His history when 
correlated with the radiology led to the diagnostic 
impression of asbestos-related pleural disease.  It is noted 
in the VA guidelines that pleural plaques are among the 
products of asbestos fibers.  See generally Manual M21-1, 
Part VI, para. 7.21 and Part III, para. 5.13.  Although the 
Board is not bound by the Manual M21-1 provisions, they 
cannot be ignored as they provide relevant guidance that the 
rating board in this case appears to have misapplied.  
Further, the veteran is not required to plead his claim with 
such specificity, but VA is obligated to apply all relevant 
law and regulation regardless of how the claim is identified.  
See for example Roberson v. Principi, 251 F.3d 1378, 1383-84 
(Fed. Cir. 2001).

The Board is aware that the law does not create a presumption 
of service connection for asbestos-related pleural disease.  
However, viewed liberally, the record shows competent medical 
evidence relating the claimed disability to service.  The 
question of sole exposure during military service is 
unrebutted.  The Board finds that the facts and circumstances 
of this case with application of all pertinent governing 
criteria permit a grant of the benefit sought on appeal.  The 
veteran recounted the circumstances of his exposure that are 
consistent with information in the record and VA guidelines.  

The VA examiners have confirmed asbestos related pleural 
disease was consistent with the history recounted by the 
veteran.  Taking all the statements from the veteran it would 
be unreasonable to conclude that the history he gave to the 
medical examiners differed from what he has written in 
support of his claim.  

The Board concludes from this evidence that the veteran has 
asbestos-related pleural disease that on the basis of the 
probative and competent medical evidence of record, cannot be 
dissociated from active service, thereby warranting 
entitlement to a grant of service connection.  38 U.S.C.A. 
§§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.303 (2003).


ORDER

Service connection for residuals of exposure to asbestos is 
granted.



	                        
____________________________________________
	RONALD R. BOSCH
	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 
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2003 
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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. 


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