Citation Nr: 0614542	
Decision Date: 05/18/06    Archive Date: 05/31/06

DOCKET NO.  04-13 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Entitlement to service connection for a respiratory disorder, 
claimed as due to asbestos exposure.


REPRESENTATION

Veteran represented by:	Michael R. Viterna, Attorney


ATTORNEY FOR THE BOARD

S. Bush, Associate Counsel




INTRODUCTION

The veteran served on active duty in the United States Navy 
from August 1963 to August 1965.

This matter is before the Board of Veterans' Appeals (the 
Board) on appeal of a March 2003 rating decision issued by 
the Department of Veterans Affairs (VA) Regional Office in 
Detroit, Michigan (the RO).  The veteran initiated an appeal 
of this decision and requested de novo review of his claim by 
a Decision Review Officer (DRO).  The DRO issued a statement 
of the case (SOC) in February 2004 that continued the 
previous denial of the claim.  The veteran's appeal was 
perfected with the timely submission of his substantive 
appeal (VA Form 9) in April 2004.

In September 2005, the Board determined that medical opinion 
was required to clarify whether or not the veteran had any 
current respiratory disorder.  The Board's request further 
indicated that in the event disability was found that a nexus 
opinion as to whether such was a result of asbestos exposure 
in the veteran's military service be provided.  See 38 C.F.R. 
§ 20.901(a) (2005).  The resulting medical opinion was 
received by the Board in October 2005.


FINDING OF FACT

The competent medical evidence of record indicates that the 
veteran's chronic pleural abnormalities, including pleural 
plaques, are related to asbestos exposure in military 
service.


CONCLUSION OF LAW

Asbestos-related chronic pleural disease was incurred in 
service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 
3.303 (2005).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran is seeking entitlement to service connection for 
a respiratory disorder, which he claims is due to exposure to 
asbestos in service.  

Pertinent law and regulations

Service connection - in general

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. 
§ 3.303 (2005).  

In addition, 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 U.S.C.A. § 1113(b) (West 
2002); 38 C.F.R. § 3.303(d) (2005).

In order to establish service connection for the claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) 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).  The determination as to whether these requirements 
are met is based on an analysis of all the evidence of record 
and the evaluation of its credibility and probative value.  
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Asbestos exposure

There is no specific statutory guidance with regard to 
asbestos-related claims, nor has the Secretary of VA 
promulgated any regulations in regard to such claims.  
However, VA has issued a circular on asbestos-related 
diseases.  DVB Circular 21-88-8, Asbestos-Related Diseases 
(May 11, 1988) provides guidelines for considering 
compensation claims based on exposure to asbestos.  The 
information and instructions from the DVB Circular have been 
included in a VA Adjudication Procedure Manual, M21-1 (M21- 
1), Part VI, 7.21.  The United States Court of Appeals for 
Veterans Claims (the Court) has held that VA must analyze an 
appellant's claim to entitlement to service connection for 
asbestosis or asbestos-related disabilities under the 
administrative protocols under these guidelines.  
See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. 
Brown, 
4 Vet. App. 428, 432 (1993).

VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) 
provides that inhalation of asbestos fibers can produce 
fibrosis and tumor, most commonly interstitial pulmonary 
fibrosis (asbestosis).  Asbestos fibers may also produce 
pleural effusion and fibrosis, pleural plaques, mesotheliomas 
of pleura and peritoneum, lung cancer, and cancers of the 
gastrointestinal tract.  Cancers of the larynx and pharynx, 
as well as the urogenital system (except the prostate) are 
also associated with asbestos exposure.  Thus persons with 
asbestos exposure have increased incidence of bronchial, 
lung, pharyngolaryngeal, gastrointestinal and urogenital 
cancer.  
See M21-1, Part VI, para 7.21(a).

The applicable section of Manual M21-1 also notes that some 
of the major occupations involving exposure to asbestos 
include mining, milling, work in shipyards, carpentry and 
construction, manufacture and servicing of friction products 
such as clutch facings and brake linings, manufacture and 
installation of roofing and flooring materials, asbestos 
cement and pipe products, military equipment, etc.  High 
exposure to respirable asbestos and a high prevalence of 
disease have been noted in insulation and shipyard workers, 
and this is significant considering that, during World War 
II, U.S. Navy veterans were exposed to chrysotile, amosite, 
and crocidolite that were used extensively in military ship 
construction.  Furthermore, it was revealed that many of 
these shipyard workers had only recently come to medical 
attention because the latent period for asbestos-related 
diseases varies from 10 to 45 or more years between first 
exposure and development of disease.  Also of significance is 
that the exposure to asbestos may be brief (as little as a 
month or two) or indirect (bystander disease).  
See Department of Veterans Affairs, Veteran's Benefits 
Administration, Manual M21-1, Part 6, Chapter 7, Subchapter 
IV, § 7.21 b.

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court 
found that provisions in former paragraph 7.68 (predecessor 
to paragraph 7.21) of VBA Manual M21-1, Part VI, did not 
create a presumption of exposure to asbestos.  Medical nexus 
evidence is required in claims for asbestos related disease 
related to alleged asbestos exposure in service.  VA O.G.C. 
Prec. Op. No. 04-00.

In short, with respect to claims involving asbestos exposure, 
VA must determine whether or not military records demonstrate 
evidence of asbestos exposure during service, develop whether 
or not 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.  See M21-1, Part VI, 7.21; DVB Circular 
21- 88-8, Asbestos-Related Diseases (May 11, 1988).

Standard of review

After the evidence has been assembled, it is the Board's 
responsibility to evaluate the entire record.  See 38 
U.S.C.A. § 7104(a) (West 2002).  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 (West 2002); 38 C.F.R. § 3.102 (2005).  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.  See 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, 1 Vet. App. at 54.

Analysis

As noted above, in order for a veteran to prevail on an issue 
of service connection there must be (1) medical evidence of a 
current disability; (2) medical evidence, or in certain 
circumstances, lay evidence of in-service occurrence or 
aggravation of a disease or injury; and (3) medical evidence 
of a nexus between an in-service injury or disease and the 
current disability.  See Hickson, supra. 

With respect to Hickson element (1), current disability, the 
October 2005 expert medical opinion contains a diagnosis of 
chronic pleural abnormalities, including pleural plaques.  
This opinion is supported by a private examination report 
submitted by the veteran in March 2006, in which A.F., M.D. 
indicated the veteran has asbestos-related pleural disease.  
Element (1) has therefore been satisfied.  

Moving to element (2), in-service incurrence of disease or 
injury, there is no evidence of respiratory or pleural 
disease in service, and the veteran does not appear to 
contend that such is the case. 

The alleged injury is exposure to asbestos in service.  As 
noted above, asbestos exposure is a fact to be determined 
from the evidence.  See Dyment, supra.
The veteran's service records indicate that he served aboard 
the U.S.S. Beatty as a boatswain.  Among his tasks were 
painting and maintenance of boilers.  See the veteran's 
September 2002 statement.  Moreover, there are a number of 
medical opinions of record indicating that the veteran was 
exposed to asbestos in service, including a December 2003 VA 
pulmonary consult report where the examining physician found 
the veteran to have had "a clear exposure to asbestos during 
his time in the Navy."  Accordingly, the Board concludes 
that the veteran was exposed to asbestos in service, thus 
satisfying Hickson element (2).  See McGinty, supra.

With respect to Hickson element (3), medical nexus, the 
medical expert opined in October 2005 that "it is at least 
as likely as not that his asbestos-related pleural disease is 
due to his asbestos exposure in the service."  This positive 
nexus opinion is in line with findings of the March 2006 
private physician's opinion submitted by the veteran, s well 
as other medical evidence of record.  Hickson element (3) has 
also been satisfied.

In summary, for reasons and bases expressed above, the Board 
concludes that service connection for asbestos-related 
pleural disease, including pleural plaques, is warranted.  
The benefit sought on appeal is granted.



Additional comments

The Board wishes to make it clear that service-connection is 
being granted only for asbestos-related pleural disease.  The 
evidence of record, including the April 2006 report of A.F., 
M.D., indicates that other disabilities (to include asthma, 
rhinitis, and seasonal allergies)  may be present.  However, 
the report of Dr. A.F. and the October 2005 expert opinion 
obtained by the Board make it clear that the only disability 
which is related to the veteran's military service is 
asbestos-related pleural disease, due to shipboard exposure 
to asbestos.  Based on the veteran's presentation, it appears 
that his contentions are limited to in-service asbestos 
exposure being the cause of the claimed disability.  In any 
event, service connection is limited to asbestos-related 
pleural disease, and does not encompass asthma, rhinitis, 
seasonal allergies or any other disability. 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 
recently observed that a claim of entitlement to service 
connection consists of five elements:  (1) veteran status; 
(2) existence of a disability; (3) a connection between the 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date.  Because a service 
connection claim is comprised of five elements, the Court 
further held that the notice requirements of section 5103(a) 
apply generally to all five elements of that claim.  

In this case, elements (1), (2), and (3) are not in question, 
since the veteran is being granted service connection for the 
claimed pulmonary disability.  As for Dingess elements (4) 
and (5), degree of disability and effective date, it is not 
the Board's responsibility to assign a disability rating or 
an effective date of service connection in the first 
instance.  The Board is confident that prior to its 
assignment of a disability rating and an effective date, the 
RO will provide the veteran with appropriate notice under 
Dingess and allow for an appropriate opportunity for the 
veteran and his attorney to respond.




ORDER

Service connection for asbestos-related chronic pleural 
disease is granted.



____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs