Citation Nr: 0515218 Decision Date: 06/06/05 Archive Date: 06/15/05 DOCKET NO. 04-10 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for pulmonary disease, claimed as due to exposure to asbestos. REPRESENTATION Appellant represented by: Donald A. Anderson, Attorney ATTORNEY FOR THE BOARD B. Wilson, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from October 1964 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to the benefit currently sought on appeal. The veteran was scheduled for a Travel Board Hearing in March 2005, however he failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2004). Accordingly, this veteran's request for a hearing is considered withdrawn. The Board notes that in November 2001, the veteran raised the issue of service connection for hearing loss, reporting that his hearing was badly impaired due to noise exposure in service. To date, no action has been taken on this claim. It is hereby referred to the RO for appropriate disposition. FINDINGS OF FACT 1. The veteran served as a machinist mate in the U.S. Navy, where he was exposed to asbestos. 2. The veteran's current pulmonary disorder has been diagnosed as chronic obstructive pulmonary disease and emphysema. 3. The evidence linking the veteran's asbestos exposure to his chronic obstructive pulmonary disease with pleural plaques is at least in equipoise.. CONCLUSION OF LAW The veteran's chronic obstructive pulmonary disease with pleural plaques was incurred in his active duty service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans' Claims Assistance Act As a preliminary matter, the Board notes that regulations enacted under the Veterans' Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. See 38 U.S.C.A. §5103 (2002); 38 C.F.R. § 3.159(b). Regulations also dictate that VA has a duty to assist claimants, essentially providing that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. See 38 U.S.C.A. §5103(A) (2002); 38 C.F.R. § 3.159(c) (2004). As will be discussed below, the Board finds that service connection is warranted. As such, a discussion of the VCAA is not needed. Service Connection The veteran contends that while serving in the U.S. Navy during the Vietnam War, his duties as machinist mate required him to be in the engine room of the ship. He reported that when the guns were fired on deck, the pipes in the engine room would shake, and subsequently release asbestos into the air. He contends that his current pulmonary disorders are a result of this exposure to asbestos, and thus he is entitled to service connection. Service connection may be established for disability resulting from injury or disease incurred in service or for a preexisting injury or disease that was aggravated by service. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 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). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). In making its determination, the Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board may not base a decision on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (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." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Board notes that 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, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. VA's Manual 21-1, Part VI, para. 7.21 (October 3, 1997) contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. In this case, naval personnel records confirm that the veteran served during the Vietnam War and that his military occupational specialty (MOS) was machinist mate aboard the U.S.S. Du Pont. The VA has recognized that 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. See Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1998). The Court has held that a veteran is competent to testify as to the facts of his asbestos exposure and it is up to the Board to weigh the credibility of that testimony. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Based on the facts of this case, the Board finds the veteran's allegations regarding his asbestos exposure to be credible and consistent with the conditions of his naval service. Thus, the question for the Board remains whether he has a current disability that has been medically linked to this exposure. The current medical evidence shows diagnoses of chronic obstructive pulmonary disease (COPD) and emphysema. Additionally, an August 2003 computed tomography (CT) scan of the veteran's chest confirmed the presence of pleural plaques that were noted to be consistent with the veteran's history of asbestos exposure. An October 2003 VA progress note includes this assessment: "chronic obstructive pulmonary disease improved by pulmonary entries with pleural thickenings consistent with asbestos exposure." The Board finds that these reports link the veteran's COPD with pleural plaques to his exposure to asbestos in service. Therefore, service connection is warranted in this instance. ORDER Entitlement to service connection for COPD and emphysema is granted. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs