Citation Nr: 0518824 Decision Date: 07/12/05 Archive Date: 07/20/05 DOCKET NO. 04-15 117 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from February 1959 to January 1962. This appeal to the Board of Veterans Appeals (Board) arises from a December 2002 rating action of the Muskogee, Oklahoma RO that denied service connection for asbestosis as due to asbestos exposure. A Notice of Disagreement was received in April 2003, and a Statement of the Case was issued in March 2004. A Substantive Appeal was received in April 2004. In April 2005, the veteran's claims file was transferred to the Columbia, South Carolina RO, reflecting the veteran's change of residence to that state. In May 2005, the veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. During the hearing, the veteran submitted additional documentary evidence to the Board and waived (in writing) his right to have the RO initially review this evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.800 (2004). FINDINGS OF FACT 1. All notification and development action need to fairly adjudicate the claim on appeal has been accomplished. 2. The veteran likely had asbestos exposure during his naval service as a boiler-room technician aboard the U.S.S. Antietam; there is no other indicia of pre- or post-service asbestos exposure. 2. Competent medical opinion indicates that the veteran currently suffers from asbestosis, due to exposure to asbestos. CONCLUSION OF LAW Affording the veteran the benefit of the doubt, the criteria for service connection for asbestosis are met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In view of the Board's favorable decision on the claim for service connection for asbestosis, granting the full benefit sought on appeal, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. II. Background Service administrative records show that the veteran served aboard the U.S.S. Antietam (CVS-36), from May 1959 to January 1962. The service medical records are completely negative for findings or diagnoses of asbestosis. On January 1962 separation examination, the lungs and chest were normal, and chest X-rays were negative. Post service, in July 2002, the veteran filed a claim for VA disability compensation stemming from exposure to asbestos during the course of his duties as a boiler-room technician aboard the U.S.S. Antietam between 1959 and 1962. In a November 2002 response to a September 2002 RO letter regarding claimed asbestos exposure, the veteran stated that he served as a boiler-room technician aboard the U.S.S. Antietam, with duties including maintenance and replacement of boilers and steamlines which were wrapped in asbestos. Re-insulating steamlines on numerous occasions particularly exposed him to asbestos. He denied smoking for the past 20 years. The veteran underwent polysomnography by S. Vaidya, M.D., in April 2003. The interpretation was severe apnea/hypopnea syndrome with marked hypoxemia and marked fragmentation of sleep architecture. In May 2003, D. R. Allen, M.D., noted that the veteran had moderate chronic obstructive pulmonary disease (COPD), and a history of asbestos exposure and sleep apnea based on a sleep study. A chest CT scan revealed nonspecific pleural thickening along the left lateral chest wall, without evidence for underlying calcification. The impressions included minimal nonspecific pleural thickening along the left lateral chest wall. In early June, Dr. Allen noted that the veteran had sleep apnea, moderate COPD, and a history of asbestos exposure in the Navy. From 1958 to 1961, he worked as a boiler technician in the Navy with heavy exposure to asbestos. A chest CT scan revealed some pleural thickening of the left lateral chest wall. In late June, Dr. Allen noted that the veteran had been a boiler technician in the Navy for approximately 3 years from 1958 to 1961, during which time he received substantial asbestos exposure. He noted that a recent chest CT scan had shown pleural thickening, and opined that this was consistent with asbestosis. On February 2004 VA respiratory examination, the examiner reviewed the veteran's claims file and medical records, which showed no evidence of any lung problems in military service. The veteran gave a history of working as a boiler technician in the Navy for 3 to 4 years, with no problems at that time, and the gradual onset of wheezing problems approximately 5 to 6 years ago. The examiner reviewed a May 2003 chest CT scan that revealed minimal nonspecific pleural thickening along the left lateral chest wall, and April 2003 records showing a history of severe sleep apnea with marked hypoxemia and marked fragmentation of sleep architecture. After current examination of the veteran with chest X-rays, the examine opined that the X-rays showed evidence of asbestos exposure in the past, and that the majority of the veteran's respiratory problems were secondary to his obstructive sleep apnea and not asbestosis. In an April 2004 statement, Dr. Vaidya opined that the veteran's sleep apnea had nothing to do with his shortness of breath condition. In a May 2004 statement, R. Smith, M.D., reviewed information pertaining to the veteran's pulmonary status, including evidence of overall lung dysfunction as demonstrated by arterial blood gases, and a pulmonary function test (PFT) which showed chronic lung disease unimproved after bronchodilator treatment. Both standard films and a chest CT scan confirmed pleural thickening. He opined that these findings in the presence of long-term asbestos exposure strongly supported a diagnosis of asbestosis. With respect to the veteran's diagnosed obstructive sleep apnea and the May 2004 VA examiner's conclusion that the veteran's radiographic and PFT findings were due to the apnea, Dr. Smith stated that the radiographic evidence could not be explained away by sleep apnea or previous episodes of bronchitis, and opined that the evidence strongly supported asbestosis as the veteran's ongoing problem. Dr. Smith also noted that other physicians shared this opinion, noting that the veteran was exposed to asbestos during his military service, and that that exposure was most certainly the major contributor to his current condition. In a December 2004 statement, D. Smith, Jr., M.D., stated that the veteran suffered from obstructive sleep apnea requiring oxygen therapy, and that the combination of his ongoing asbestosis with sleep apnea continued to affect his ability to work, as well as his heart, leading to congestive heart failure. In an April 2005 statement, A. Mansour, M.D., stated that the veteran was currently under his care for COPD and asbestos exposure with pleural disease. The veteran gave a history of exposure to asbestos while in the Navy, and denied any other contact with asbestos other than during that military service. An October 2004 chest CT scan revealed pleural thickening suggestive of asbestos. During the May 2005 Board hearing, the veteran testified about his exposure to asbestos during his naval service. He stated that, post service, he had worked as a truck driver, and had not worked in any profession or industry that exposed him to asbestos. III. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred or aggravated during peacetime service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of a current disability that is related to in-service injury or disease. See Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that there is no statute specifically addressing asbestos and service connection for asbestos- related diseases, nor has VA promulgated any specific regulations for these types of cases. However, in 1988 VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (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 (January 31, 1997) (hereinafter "M21- 1"). In addition, a recent opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on inservice asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, VA must analyze the veteran's claim for service connection for asbestosis, claimed as due to in- service asbestos exposure, under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). 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. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Veterans Appeals (the United States Court of Appeals for Veterans Claims since March 1, 1999) indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the its claim-development procedures). With these claims, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). In this case, the veteran claims service connection for asbestosis due to asbestos exposure during his naval service as a boiler-room technician aboard the U.S.S. Antietam. The veteran's service records, including medical records, are completely negative for any findings or diagnoses of asbestosis. On separation examination in January 1962, the veteran's lungs and chest were normal,, and chest X-rays were negative. These records include no specific evidence to document any in-service asbestos exposure. That notwithstanding, the Board finds the veteran's descriptions of his in-service duties to be credible (see, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)), and that, given those duties, the veteran's Navy service likely involved some exposure to asbestos; the record includes nothing to indicate any pre- or post-service asbestos exposure. Furthermore, the Board determines that the competent and probative evidence supports a finding that the veteran currently suffers from asbestosis that is a residual of in-service asbestos exposure. In this regard, the Board has considered Dr. Allen's June 2003 opinion that a chest CT scan showing pleural thickening was consistent with the veteran's asbestos exposure in service; the February 2004 VA examiner's finding that current chest X-rays showed evidence of exposure to asbestos in the past; and Dr. Smith's May 2004 opinion that the radiographic findings of pleural thickening in the presence of the veteran's long-term asbestos exposure during military service strongly support a diagnosis of asbestosis. Moreover, Drs. Smith and Mansour, in December 2004 and April 2005, respectively, have indicated that the veteran continues to suffer from asbestosis due to exposure to asbestos. [Parenthetically, the Board notes that, while the February 2004 VA examiner opined that the majority of the veteran's current respiratory problems are secondary to his obstructive sleep apnea and not asbestosis, this opinion may bear on the severity of current respiratory disability, but in no way undermines the impressions of asbestosis of record]. The aforementioned medical opinions constitute the only persuasive medical opinions on the matter before the Board. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board finds that, in arriving at these opinions, the physicians properly considered the factors contained in DVB Circular 21-88-8 and M21-1. Moreover, the Board is satisfied that the RO has complied with its claim-development procedures, and considered whether military records demonstrated evidence of asbestos exposure during service; developed whether there was pre-service and/or post-service occupational or other asbestos exposure; and determined whether there is a relationship between alleged asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, on this record, and with resolution of all reasonable doubt in the veteran's favor, the Board finds that the criteria for service connection for asbestosis as due to exposure to asbestos are met. ORDER Service connection for asbestosis is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs