Citation Nr: 0417468 Decision Date: 06/30/04 Archive Date: 07/13/04 DOCKET NO. 03-17 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for asbestosis as a result of asbestos exposure. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tanya A. Smith, Associate Counsel INTRODUCTION The veteran had active service from May 1951 to May 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDINGS OF FACT 1. The evidence of record shows that the appellant was likely exposed to asbestos prior to service, during service, and after service. 2. The appellant is currently diagnosed with asbestosis, asbestos pleural disease. 3. There is an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove that the appellant's likely exposure to asbestos during his period of military service proximately caused the currently diagnosed asbestosis, asbestos pleural disease. CONCLUSION OF LAW Asbestosis as a result of asbestos exposure was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board observes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases which provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A. § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. See VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21- 1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. The RO submitted a request for records to the National Personnel Records Center (NPRC) that documented exposure to asbestos or pertained to jobs the appellant performed during service. In response, NPRC noted that the appellant's service was fire-related and that NPRC was unable to reconstruct the records. The NPRC indicated that the appellant's records were destroyed and additional searches by the RO did not locate any alternative records. Consequently, the appellant's records are not of record and attempts to obtain them were unsuccessful. In cases such as these, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The report on the separation examination conducted in May 1953 noted no relevant complaints or findings. No significant abnormalities were detected on the chest x-ray. The appellant's DD Form 214 shows that he served in the United States Army. The civilian occupation related to his military occupational specialty was a field clerk. His most significant duty assignment was with the 37th Engineer Combat Company. The appellant reports exposure to asbestos prior to service. He was exposed to asbestos while working for a railroad company from 1947 to 1951. The appellant reports exposure to asbestos during service. While stationed at Breckinridge, Kentucky with the 101st Airborne, the appellant had "KP" duty in the mess hall. His duties entailed cleaning the coal stove. He maintained that the exhaust pipe of the coal stove was wrapped with asbestos. He knew it was asbestos because of his work at the railroad prior to service. Also, as part of the 101st Airborne, he spent time aboard a World War II hospital ship (converted to a troop ship) that traveled to the Panama Canal. During this trip, the appellant maintained that he slept in the top bunk under pipes that were wrapped with asbestos. He thought that the last name of the ship was "Thomas." The appellant submitted a picture reportedly of himself in uniform standing on a ship. The appellant reports exposure to asbestos after service. The appellant returned to work as an electrician at a railroad company. Thereafter, the appellant worked for aviation and aerospace companies during which time he handled hot cables and repaired engines and generators. Lastly, the appellant indicated that he performed brake jobs repairing brake linings that contained asbestos. A June 2000 report from Dr. E.J.S. noted that a chest computed tomography scan revealed evidence of an asbestos- related pleural disease. An October 2000 medical report from East Bay Pulmonary Medical Group shows that the chest x-ray revealed increased interstitial markings with a profusion score of 1/0 and bilateral areas of pleural thickening with plaque formation and calcification. It was noted that these parenchymal and pleural findings were consistent with the diagnosis of asbestosis and asbestos pleural disease. The several physicians associated with the report all agreed that the appellant had asbestosis, asbestos pleural disease. The QTC Medical Services report dated in December 2000 notes that a chest x-ray revealed chronic obstructive pulmonary disease and bilateral pulmonary fibrosis. The examiner diagnosed status-post asbestos exposure, chronic obstructive pulmonary disease, and bilateral pulmonary fibrosis. The Board has thoroughly reviewed all of the evidence of record as summarized in part above. The medical evidence of record clearly shows that the appellant is currently diagnosed with asbestosis as a result of asbestos exposure. The only question in contention is the period in which the appellant was exposed to the disease causative agent. The appellant's listed military occupation specialty of field clerk for the United States Army is not recognized by VA to have minimal or probable exposure to asbestos. Nevertheless, the appellant maintains that he was exposed to asbestos during the performance of his service duties. The Board finds the appellant credible. There is no evidence that contradicts the appellant's statements for as discussed above, his service records are unavailable. As such, the Board finds that it was likely that the appellant was exposed to asbestos during service. The Board also finds that it was likely that the appellant had pre-service and post-service exposure to occupational or other asbestos exposure based on the description of employment duties provided by the appellant. There is no medical opinion of record that addresses whether the appellant's currently diagnosed asbestosis was proximately caused by exposure to asbestos prior to, during, or after service. The appellant was likely exposed to asbestos throughout his lifetime to some degree. For this reason, the Board finds that there is no basis for obtaining a VA opinion regarding the etiology of the appellant's asbestosis as there is no reasonable possibility that such an opinion would with any degree of medical certainty pinpoint which period of exposure proximately caused the asbestosis. Thus, the Board finds that the current evidence of record does not satisfactorily prove or disprove the appellant's claim that exposure to asbestos during his period of military service proximately caused his asbestosis; therefore, the evidence is in relative equipoise. A key consideration in this determination has been the absence of complete service records. Giving the appellant the benefit of the doubt, the Board finds that the appellant has asbestosis as a result of asbestos exposure in service. 38 U.S.C.A. 5107(b) (2002); 38 C.F.R. § 3.102 (2003); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for asbestosis is warranted. ORDER Service connection for asbestosis as a result of asbestos exposure is granted. ____________________________________________ John E. Ormond, Jr. 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