Citation Nr: 1447156 Decision Date: 10/23/14 Archive Date: 10/30/14 DOCKET NO. 11-22 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for mesothelioma. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA" and Veterans Benefit Management System (VBMS)) file, as well as the evidence in his physical claims file. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). FINDING OF FACT The evidence is in equipoise as to whether the Veteran has mesothelioma as a result of asbestos exposure while on active duty. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, mesothelioma was as likely as not incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial. The Veteran contends that service connection is warranted for mesothelioma due to in-service asbestos exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, to prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Of record is a confirmed diagnosis of malignant mesothelioma. Specific effects of exposure to asbestos include mesothelioma that develops in 17 percent of persons with asbestosis. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(c). Disease-causing exposure to asbestos may be brief, and/or indirect. Id. Mesotheliomas are not associated with cigarette smoking. Id. The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(d). In the present case, the Veteran contends that he was exposed to asbestos while assigned to a U.S. Navy SLT in 1979 or 1980 for a sea deployment of about four to six months in the form of asbestos wrapped pipes in the sleeping area and in the engine room/boiler room. The Veteran reported that he was assigned numerous duties including scraping paint and painting in all areas of the ship where asbestos was found. The Veteran is competent to report his in-service asbestos exposure. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's official service department records, including a DD Form 214 are consistent with his assertions of sea deployment. The record indicates that the Veteran was awarded Sea Service Deployment Ribbon (SSDR). The Marine Corps awards an SSDR to active and reserve personnel upon completion of a 12-month assignment with a Fleet Marine Force (FMF) unit provided that the Marine completed a deployment of 90 or more consecutive days. The service personnel records, however, indicate that the Veteran was deployed to Guantanamo Bay for 39 days, from October 10, 1979 to November 19, 1979. A visual audit sheet dated in 1981 shows accumulated deployed time was 153, approximately 5 months. Service on a Navy ship alone does not establish that the Veteran was exposed to asbestos. See Dymant v. West, 13 Vet. App. 141 (1999); aff'd, Dymant v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000 (April 13, 2000). The Veteran's military occupational specialty (MOS) was an Amphibian Tractor Crewman which is not consistent with asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f). Nonetheless, the Board finds the Veteran's statements regarding his exposure to asbestos to be credible and consistent and they are not otherwise contradicted by the evidence. There is also evidence of possible post-service asbestos exposure as the Veteran was a carpenter and owned his own business for 25 years primarily renovating houses. A March 2009 Pulmonary and Critical Care Consultation report notes that the Veteran worked in residential construction. The provider noted, "He does not have any known asbestos exposure but certainly with working in newer and older homes he could have over the years." A December 2009 Consultation report notes that the Veteran was a carpenter, that he spent about six months on the ship when he was in the force, and that based on this, he had multiple periods that he might have been exposed to asbestos over the last 30 to 35 years. In support of his claim, the Veteran has submitted opinions from his treating physicians. In a July 2010 letter, Dr. Johnkoski stated that the Veteran had possible exposure to asbestos while in the Marines and that there is no other clear source of asbestos exposure in his history. In a July 2010 letter, Dr. Nichols stated, "It is well established that mesothelioma can be related to asbestos exposure. [The Veteran] does give a history of exposure to asbestos while serving in the Marine Corps. He has no other known exposure history." The Veteran underwent VA examination in March 2014. After review of VMBS, the examiner found that the Veteran's mesothelioma diagnosis was less likely as not caused by or a result of claimed asbestos exposure during service but rather due to other factors unrelated to service. The examiner noted that the Veteran's service treatment records were silent for complaints, treatment, or a diagnosis of any lung disease or mesothelioma during service and silent for any asbestos exposure while in service. The examiner noted that the Veteran's job, duty as an Amtrac Crewman was not consistent with a military occupation specialty for which exposure to asbestos during military service could be conceded as he was not part of the assigned crew of the ship, and his duties would require him to be transported to various global areas to carry out his duties as an Amtrac Crewman in France, Italy, Spain, and Guantanamo Bay for a total of 6 months. The examiner noted the December 2009 medical note which noted that the Veteran had multiple periods that he might have been exposed to asbestos over the last 30 to 35 years and that the diagnosis of " Enlarging right pleural based nodules, Malignant mesothelioma on biopsy 11/30/2009" occurred approximately 44 years after discharge from military service. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran's mesothelioma is related to his active duty service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. However, a more detailed discussion of the specific opinions, credentials of the diagnosticians, and circumstances of opinions in this case would not clarify the matter. It would merely highlight that there is not a clear, rational basis for the Board to prefer one opinion to another. The Board does point out that the March 2014 VA examiner was incorrect that malignant mesothelioma on biopsy in November 2009 occurred approximately 44 years after discharge from military service. As noted above, the Veteran was discharged from service in July 1981; thus, November 2009 was 28 years, not 44 years later. Accordingly, the Board finds that the competent medical evidence of record, both for and against a finding that the Veteran's mesothelioma resulted from claimed exposure to asbestos is in a state of equipoise. Accordingly, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for mesothelioma is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs