Citation Nr: 0524100 Decision Date: 09/01/05 Archive Date: 09/13/05 DOCKET NO. 03-03 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for pulmonary disorder, to include asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez Pollack, Associate Counsel INTRODUCTION The veteran had active service from February 1954 to October 1957. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO denied service connection for asbestosis with decreased lung function and shortness of breath due to asbestos exposure. In March 2004 the Board remanded the case for further evidentiary development. FINDINGS OF FACT 1. The veteran was exposed to asbestos in service while working as a firefighter. 2. Asbestosis is attributable to service. CONCLUSION OF LAW Asbestosis was incurred in service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.303, 3.304 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veteran's Claims Assistance Act of 2000 (VCAA), is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the veteran and representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002). VA must also inform the claimant which evidence VA will seek to provide and which evidence the claimant is to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Second, the VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002). In the instant case, the veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Factual Background A separation physical dated in October 1957 documented the lungs and chest as being normal. Department of Defense (DD) Form 214 reflects that the veteran served in the United States Air Force (USAF) as a firefighter. In statements submitted, the veteran claims that the firefighting suits he wore during his time as a firefighter in the USAF were made of asbestos and that at times, they were ragged and leaked asbestos. In a May 1993 asbestos evaluation summary from Dr. S, he noted that the veteran was exposed to asbestos during his work as a boilermaker for 20 years, and that part of the veteran's duties included cutting asbestos for a construction company in the early 1970's. Furthermore, the physician noted that the veteran smoked one-half to one package of cigarettes daily from 1954 to 1958. Chest x-ray showed an increase in the interstitial markings present through the mid and lower lung zones bilaterally. Pleural plaque was seen en face with extent 3 on the left with calcification extent of 2. Left costophrenic angle was blunted due to diffused pleural thickening extent of 2 on the left. There was focal pleural thickening on the right seen en face, extent 2. Pulmonary function tests showed a mild restrictive defect. A diagnosis of suggestion of asbestosis with known occupational exposure to asbestos in the workplace was entered. In a July 1994 letter to the Social Security Agency (SSA), the veteran stated that he suffered from shortness of breath from having worked around asbestos and that walking a few feet made him short of breath, especially on a slope. A March 1995 Disability Determination and Transmittal from the SSA, noted a secondary diagnosis of asbestosis. VA outpatient medical records dated in December 2002 show a lung CT scan showing pleural calcific plaque in the left mild upper lung field and posteromenial in the anterior aspect of the left lower lung field. Some pleural thickening was also noted in the anterolateral aspect of the left mid upper lung field. Outpatient VA medical records dated in January 2003 document a lung CT scan which showed multiple plaques in the surface of the left lung which were noted to be consistent with asbestosis. Similar findings were entered in VA outpatient records dated in April 2003. VA outpatient medical records dated in July 2003 show a lung CT scan showing calcified pleural plaques on the left lung consistent with prior history of asbestos exposure. Examination of the lung window showed a 5 mm nodular density on the left lung in the lower lobe, and liner densities at the left lung base. There was also a calcified granuloma on the right lower lobe. At an April 2003 RO hearing the veteran testified that while in service, he wore fire protectant suits which were lined with asbestos during an entire tour of duty as a firefighter. He stated that the entire suit cloth was made of asbestos including the boots, gloves and hood. He further stated that the suits were old and as a result he would inhale more fibers. In December 2003 the veteran submitted evidence in the form of an article, which stated that up until the mid 1970's, firefighter suits were made of asbestos cloth. In a January 2005 VA examination the examiner noted a diagnosis of asbestos exposure with no clear evidence of pulmonary asbestosis, and COPD due to a smoking history. After a physical examination and a review of the claim file, the examiner opined that the "CT chest scan shows some changes that could be consistent with asbestosis in the left lower base, but more likely than not it is not asbestosis since asbestosis is a bilateral process and not unilateral as in this case. The same findings could be explained by a[n] episode of severe pneumonia. Also the in service exposure history to asbestos is too light to cause asbestosis." Criteria Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). While there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has VA promulgated any regulations, VA has issued procedures on asbestos-related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos. VA must analyze the veteran's claim of entitlement to service connection for residuals of asbestos exposure under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Some guidelines for compensation claims based on asbestos exposure were published in DVB Circular 21- 88-8, dated May 11, 1988. The DVB Circular was subsequently rescinded but its basic guidelines are now found in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3 (January 31, 1997); see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, that an asbestos-related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. When considering VA compensation claims, rating boards have the responsibility for ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and to assure that development is accomplished to ascertain whether or not there is pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the United States Court of Appeals for Veterans Claims (Court) held that, while the veteran, as a layperson, was not competent to testify as to the cause of his disease, he was, however, competent to testify as to the facts of his asbestos exposure. McGinty, 4 Vet. App. at 432. Analysis The veteran contends that he is entitled to service connection for asbestosis as a result of in-service exposure to asbestos in fire protective suits worn while working as a firefighter. A review of the veteran's military personnel file confirms that the veteran MOS was that of firefighter. As noted above, the Court has held that the veteran is competent to testify as to the facts of his asbestos exposure, which would include his statements regarding his service as a firefighter. McGinty, 4 Vet. App. at 432. In Gilbert v. Derwinski, 1 Vet. App. 49 (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." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. 38 U.S.C.A. 5107(b) (West 2004). Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. As noted above, the reasonable doubt doctrine is for consideration when deciding whether the veteran was exposed to asbestos in service. The veteran has provided competent statements as to his service as a firefighter and his exposure to asbestos as a result of wearing fire protective suits. He has also provided competent evidence that the fire protective suits were made of asbestos cloth during the time that he served as a firefighter in service. Accordingly, the Board finds that in-service asbestos exposure is established. The remaining question is whether the veteran currently has a diagnosis of asbestosis. The Board notes that there is a conflict in the record with regards to the diagnosis of asbestosis. Evidence which indicates a diagnosis of asbestosis includes an asbestos evaluation of May 1993 where Dr. S noted that the veteran's X-ray suggested a clinical diagnosis of asbestosis. Additionally, VA outpatient medical records dated between December 2002 and July 2003 document CT scans note pleural plaques in the left lung which were noted to be consistent with asbestosis. Evidence against a diagnosis of asbestosis includes a VA examination of January 2005 where the examiner found that the veteran's "CT chest scan shows some changes that could be consistent with asbestosis in the left lower base, but more likely than not it is not asbestosis since asbestosis is a bilateral process and not unilateral as in this case. The same findings could be explained by a[n] episode of severe pneumonia. Also the in service exposure history to asbestos is too light to cause asbestosis." First, the Board notes that the examiner admits that the findings could be consistent with asbestosis. Furthermore, the Board notes that the examiner's explanation of the findings being consistent with a severe episode of pneumonia is of little probative value as there is no evidence of record that the veteran ever had a severe episode of pneumonia. The Board therefore considers this explanation speculative at best. Finally, the Board notes that the VA has determined that an asbestos-related disease can develop from brief exposure to asbestos. Consequently, the Board finds the examiner's determination that the veteran's exposure to asbestos while in service was too minimal to cause asbestosis of little probative value. Considering all of the medical evidence of record, the Board finds that the evidence is in favor of a finding of a current diagnosis of asbestosis. The Board recognizes that the veteran has admitted to post- service exposure to asbestos through his civilian job. However, it is impossible to determine which exposure, in- service or post-service, to asbestos has caused the veteran's currently diagnosed asbestosis. Although the VA examiner determined that the in-service exposure was light, he did not attribute the findings to post-service exposure as an alternative. As noted above, the VA has provided guidelines which state that even a brief exposure to asbestos may lead to asbestos related diseases. Therefore, as to the question of whether the veteran's current asbestosis is related to in- service asbestos exposure rather than to post-service asbestos exposure, the Board finds that the evidence is at least in equipoise. Resolving reasonable doubt in the veteran's favor as to this matter, the Board holds that the requirements for a grant of service connection for asbestosis have been met. ORDER Service connection for asbestosis is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs