Citation Nr: 0626740 Decision Date: 08/28/06 Archive Date: 09/06/06 DOCKET NO. 04-33 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for chronic pleural disease of the lungs, claimed as due to asbestos exposure. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The veteran and his daughter ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Air Force from April 1959 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (the RO), which denied the veteran's claim of entitlement to service connection for a respiratory disorder due to asbestos exposure. The veteran testified at a personal hearing which was conducted by the undersigned Veterans Law Judge in Washington, D.C. in June 2006. A transcript of the hearing is associated with the veteran's VA claims folder. The veteran's representative was not present, and the veteran elected to proceed with the hearing without representation. See the hearing transcript, page 2. FINDING OF FACT The competent medical evidence of record indicates that the veteran's chronic pleural abnormalities, including interstitial scarring, pleural thickening and calcifications, 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. § 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. Initial matter The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The veteran received a VCAA letter in April 2002. It is clear from his presentation that he is fully aware of what is required of him with respect to his service connection claim. The Board will have more to say about the VCAA in its "additional comments" below. 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. § 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 The veteran acknowledges his prior smoking history and concedes that such was the cause of his development of emphysema and chronic obstructive pulmonary disorder (COPD). See the June 2006 hearing transcript, page 20. However, with respect to the current claim on appeal, he contends that pleural disease of the lungs is a completely different disease process, and one which was caused by in-service asbestos exposure. 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, January 1995 May 2001, September 2001 and July 2003 X-rays of the chest reveal interstitial scarring of the lungs, along with pleural thickening and calcifications. Element (1) has therefore been satisfied. Moving to element (2), in-service incurrence of disease or injury, the Board will separately address disease and 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 his MOS was radar equipment specialist. The veteran testified that his position required that he spend around six hours per day in radar vehicles which were lined with asbestos. See the June 2006 hearing transcript, page 4. The Board has no reason to doubt the veracity of this testimony. In addition, the entire record supports a conclusion that there was exposure to asbestos in service. The veteran's post-service work history is negative for asbestos exposure. Crucially, medical evidence is strongly suggestive of past asbestos exposure. Specifically, in June 2003 J.F.E., M.D., opined that the veteran's X-rays "support asbestos exposure of a chronic nature," and a July 2003 VA X-ray report indicates the presence of pleural disease which "raises the possibility of asbestos exposure." Finally a July 2003 statement from R.B.D, N.P. notes "his tests are conclusive for asbestos exposure." In light of current medical findings that indicate the veteran was exposed to asbestos, the veteran's testimony as to working in asbestos-lined trucks in service and his negative history for post-service asbestos exposure, 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, by confirming the veteran's exposure to asbestos and relating such to his current pleural disease, the statement from Dr. J.F.E. is supportive of a nexus between the veteran's military service, specifically asbestos exposure therein, and his current pleural disease. [The Board notes in passing that other putative nexus opinions are not probative. Dr. R.B.D.'s opinion is speculative in nature, and therefore not probative of a nexus. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A May 2004 VA examiner made no specific findings as to the veteran's pleural disease, and were limited to the veteran's COPD and emphysema, which as detailed above has no relevance to this claim. In short, the medical opinion from Dr. J.F.E. relating pleural disease to asbestos exposure serves as nexus opinion in support of the veteran's claim. There are no competent medical opinions to the contrary. Indeed, there is no evidence of record which is suggestive of any other cause of the veteran's pleural disease. Hickson element (3) has also been satisfied. Thus, all elements have been met. In summary, for reasons and bases expressed above, the Board concludes that service connection for asbestos-related pleural disease, including interstitial scarring, pleural thickening and calcifications, 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 indicates that other respiratory/pulmonary disabilities, to include COPD and emphysema, are present. Based on the veteran's presentation, it appears that he does not claim entitlement to service connection for COPD and emphysema. In any event, the medical nexus opinion makes it clear that the only disability which is related to the veteran's military service is asbestos-related pleural disease. Accordingly, service connection granted herein is specifically limited to asbestos-related pleural disease (interstitial scarring, pleural thickening and calcifications), and does not encompass COPD, emphysema 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 38 U.S.C.A. § 5103(a) apply generally to all five elements of that claim. In this case, elements (1), (2), and (3) are no longer in question, since the veteran is being granted service connection for the claimed 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 to respond. ORDER Service connection for asbestos-related interstitial scarring, pleural thickening and calcifications is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs