Citation Nr: 0634668 Decision Date: 11/08/06 Archive Date: 11/27/06 DOCKET NO. 02-21 663 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for asbestosis and chronic obstructive pulmonary disease (COPD) secondary to asbestos exposure. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD T. L. Konya, Associate Counsel INTRODUCTION The veteran served on active duty from April 1948 to March 1951. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2002 rating decision of a special processing unit ("Tiger Team") at the RO in Cleveland, Ohio. In January 2004, to support his claim, the veteran testified at a videoconference hearing at the RO in Huntington, West Virginia. The undersigned Veterans Law Judge (VLJ) of the Board presided. Later that year, in June 2004, the Board remanded this case to the RO for further development and consideration. FINDINGS OF FACT 1. It is just as likely as not the veteran was exposed to asbestos during service; he also is a former cigarette smoker - until quitting during the 1970s. 2. There is competent medical evidence etiologically linking his current lung disorder (COPD) at least partly to that asbestos exposure in service, irrespective of his history of smoking. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the veteran's COPD was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in developing their claims for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA is not applicable where further assistance would not aid the veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating his claim. Factual Background A review of the record shows the veteran served on active duty in the Navy from April 1948 to March 1951, including a tour aboard the USS Fort Marion, LSD 22, as a Boatswain's Mate, Third Class. Service medical records do not disclose any complaints, clinical findings, or diagnosis of a chronic respiratory disability, and the veteran's physical examination for permanent disability retirement in February 1954 included a chest X-ray that was negative. The post-service medical evidence includes copious private and VA treatment records dated from 2001 to 2005, which show treatment the veteran has received over time for various health problems including respiratory and pulmonary disorders. Specific diagnoses included COPD, asbestos exposure, bronchitis, and emphysema. VA X-rays of the veteran's chest taken in February and May 2001 showed mild bilateral upper lobe pulmonary emphysema, mild to borderline cardiomegaly, apical pleural thickening bilaterally and were negative for acute congestive heart failure or pneumonia. In May 2001, the veteran was admitted to a VA hospital with a history of progressive shortness of breath and inadequate expectoration with occasional phlegm. He reported using Zithromax, and upon completion of the medication, he developed shortness of breath. He described a history of smoking for 30 years but reported that he had quit in 1970. During the course of his admission he underwent a pulmonary consultation for home oxygen evaluation which was subsequently approved. In August 2001, the RO sent a request to the Navy Medical Liaison office to determine the likelihood of the veteran's exposure to asbestos. A September 2001 response from the Navy Medical Liaison office at the National Personnel Records Center (NPRC) indicated there was no way of determining to what extent the veteran was exposed to asbestos during his Naval service. This office cited his occupation of Boatswain's Mate (BM) and determined the probability of exposure to asbestos was minimal; however, a definitive statement that he was or was not exposed could not be made. Along with the response from the Navy Medical Liaison office a description of a BM was included. Some of the responsibilities of a BM included deck seamanship, cargo handling, anchoring, mooring and towing, painting and preservation, among others. In November 2001 the veteran was afforded a VA examination. The examiner noted that the veteran's claims file was reviewed prior to the examination. The veteran reported that he was exposed to asbestos while stationed aboard a ship in service. He reported there was a pipe located above his head where he slept and the pipe broke open and asbestos fell on him for approximately one and a half years. He complained of a productive cough with yellow sputum and indicated that after walking 50 feet he was short of breath. He used theophylline nebulizers as well as oxygen at home. He gave a medical history of hospitalization in May 2001 for respiratory problems. The pertinent diagnosis was COPD, secondary to asbestosis and hypoxia secondary to COPD. A November 2001 VA X-ray of the veteran's chest, performed in conjunction with the above VA examination, revealed prominence of the interstitial markings in both lungs but particularly in the right lung apex. Also, the results of pulmonary function testing (PFT) showed good effort and cooperation on his part, and severe COPD. A June 2003 VA CT Scan of the veteran's chest showed the possibility of several subtle bilateral pleural plaques suggestive of asbestos exposure. Also noted on the CT scan was biapical irregular pleural parenchymal opacity likely representing scarring. Additionally, PFT in June 2003 showed severe obstructive disease with hypoxia which improved with medication. During his January 2004 videoconference hearing, the veteran initially reported that he smoked for a period of 20 years and quit in 1978. He explained that while he was in the Navy he came in direct contact with asbestos and wore asbestos gloves. His heaviest exposure to asbestos was when he was performing his duties as a Boatswain's Mate. Additionally, he reported exposure while he was sleeping in his bunk. He clarified the report of the examiner in November 2001 and indicated that asbestos would seep through holes in the insulation around the stream pipes located above his bunk and subsequently fall onto his bunk. In compliance with the Board's June 2004 remand request, the veteran was afforded another VA examination in July 2005. The examiner noted the veteran's claims file was reviewed prior to the examination, as well as evidence from the National Library of Medicine website. The veteran complained of a cough, dizziness, fatigue, orthopnea, shortness of breath, and syncope. His current treatments included oxygen, theophylinne, albuterol, and impatropium. The diagnosis was COPD. Upon completion of the examination, the evaluating physician determined it was likely the veteran's smoking or exposure to asbestos in service contributed to his current lung disorder. But the examiner could not individually quantify which factor caused the current lung disorder. To support his rationale, the examiner explained that the veteran quit smoking over 30 years ago but was reportedly exposed to asbestos over 40 years ago, hence both conditions can predispose a person to COPD. The examiner continued discussing his rationale by defining COPD and concluded that a diagnosis of this condition is usually supported by a history of exposure and plural scarring noted on X-ray evidence, of which the veteran had both. A CT scan of the veteran's chest was performed along with the above examination. The scan revealed emphysema with some pulmonary parenchymal scarring and mild focal pleural thickening. The findings were non-specific and no calcific pleural plaquing was seen. To obtain further explanation and clarification of this opinion, the RO returned the veteran's claims file to the VA examiner who had conducted the July 2005 examination. And he submitted an addendum statement in November 2005, explaining the veteran's respiratory condition is likely at least partly attributable to his asbestos exposure while in the military. The examiner indicated that, based on the veteran's history, the presence of X-ray scarring and the results of his VA examination, it was likely that asbestos exposure was a contributing factor in his current respiratory disorder. This examiner also commented that smoking was not the primary cause of the veteran's current lung condition. Though he last smoked over 30 years ago, before that time he was exposed daily to asbestos fibers for over one year. So the examiner concluded that the significant exposure to asbestos could not be taken for granted when evaluating the cause of the veteran's pulmonary disease. Analysis Service connection may be granted if the evidence demonstrates that current disability resulted from an injury or a disease incurred or aggravated in service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was exhibited in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, 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 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (Apr. 13, 2000). The Court has held that VA must analyze claims of service connection for asbestosis or asbestos-related disabilities under the administrative protocols established by 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 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, and pleural plaques. 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 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 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. In this particular case at hand, the veteran's DD Form 214 and the response from the Navy Medical Liaison office clearly establish that his primary military occupational specialty (MOS) during service was Boatswain's Mate. And during his January 2004 videoconference hearing before the Board, the veteran gave very credible testimony regarding the circumstances surrounding his exposure to asbestos in service - noting that his heaviest exposure occurred while performing his duties as a Boatswain's Mate. He also reported exposure while in his bunk onboard the ship he was stationed on. Based on this evidence, the Board finds that the record is sufficient to establish that he was exposed to asbestos during service, as it is just as likely as not this occurred. The veteran also has been diagnosed as having a lung disability consistent with exposure to asbestos. See M21-1, Part VI, para 7.21(a). And two VA physicians have etiologically linked this lung disability to asbestos exposure, irrespective of his history of cigarette smoking that reportedly ended many years ago, sometime during the 1970s. Certainly then, resolving all reasonable doubt in his favor, it is just as likely as not his current lung disorder (COPD) is a result of that exposure. So his claim must be granted. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for COPD, secondary to asbestos exposure, is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs