Citation Nr: 0728062 Decision Date: 09/07/07 Archive Date: 09/14/07 DOCKET NO. 05-34 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a lung disorder, to include as due to inservice asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from January 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDINGS OF FACT 1. The veteran's claim to reopen the issue for service connection for a lung disorder was denied by the RO in a June 2003 rating decision. Although provided notice of this decision that same month, the veteran did not perfect an appeal thereof. 2. Evidence associated with the claims file since the unappealed June 2003 rating decision raises a reasonable possibility of substantiating the veteran's claim for entitlement to service connection for a lung disorder. 3. A current lung disorder was caused or aggravated in part by, and cannot be reasonably disassociated from, his inservice asbestos exposure. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the RO's June 2003 rating decision, and the veteran's claim for service connection for a lung disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2006). 2. A lung disorder was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.159 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues involving the veteran's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). This is so because the Board is taking action favorable to the veteran by granting the issues at hand. As such, this decision poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). On June 25, 2007, the veteran submitted additional evidence to the Board which has not been considered by the RO. However, given the actions taken below, the Board finds RO consideration to be unnecessary. I. New and Material Evidence In June 1995, the veteran filed his initial claim seeking service connection for a lung disorder, to include as due to inservice asbestos exposure. In August 1995, the RO issued a rating decision denying service connection for a lung disorder, noting that the veteran had not provided medical evidence of a relationship between the veteran's condition and inservice asbestos exposure. Although provided notice of this decision in August 1995, the veteran did not file a timely notice of disagreement for that decision, and it became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2006). In April 2003, the veteran filed a claim to reopen his claim for service connection for a lung disorder, to include as due to inservice asbestos exposure. In June 2003, the RO issued a rating decision which denied the veteran's claim. The veteran did not appeal this decision and it is final. After receiving additional evidence from the veteran, the RO reconsidered its decision, and again denied the veteran's claim in an August 2004 rating decision. In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The veteran is seeking to reopen his claim for service connection for a lung disorder. He contends that this disorder began as a result of inservice asbestos exposure. The underlying basis for the RO's June 2003 denial of the veteran's claim was that the veteran had not presented new and material evidence that his lung disorder was related to any inservice asbestos exposure. Comparing the evidence received since the RO's June 2003 decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material as to the issue of service connection for a lung disorder. The newly submitted medical evidence includes medical nexus opinions that the veteran's lung disorder is related to inservice asbestos exposure. Specifically, a September 2005 VA treatment record noted that the veteran's asbestos exposure very likely contributed in some degree to the development of his lung disease, and that the status of the veteran's lung disease seemed out of proportion to his smoking history. A May 2007 private medical treatment letter stated that the veteran's lung disorder suggested that asbestosis was a major factor in the cause of his breathing problems. A June 2007 VA medical treatment letter noted that the veteran's symptoms far exceeded what would be expected from his smoking history. The treatment letter concluded with the opinion that the veteran's pulmonary fibrosis is highly likely to be directly related to his exposure during his work on Navy ships. As the additional evidence includes medical evidence of a nexus between the veteran's inservice asbestos exposure and his current lung disorder, the Board finds that this newly received evidence raises the possibility of substantiating the veteran's claim for service connection herein. Accordingly, new and material evidence has been submitted, and the claim for service connection for a lung disorder must be reopened. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for certain chronic diseases will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish service connection for a claimed disorder, the following must be shown: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary 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 were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The U.S. Court of Appeals for Veterans Claims (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 the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, Topic 29. It lists some of the major occupations involving exposure to asbestos, including mining, milling, work in shipyards, insulation work, demolition of old buildings, 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, and military equipment. 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 the Korean War, United States 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). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. The Board recognizes the probability that asbestos was present aboard the ship on which the veteran was stationed during service. However, VA must ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422. With asbestos-related claims, it must be determined whether or not military records demonstrate evidence of asbestos exposure during service and whether or not there was pre-service and/or post-service occupational or other asbestos exposure. In this case, the record shows that the veteran served in the United States Navy from approximately January 1953 to January 1955. During the course of his career, he served onboard the USS HUNT (DD 674), from February 1954 to January 1955. He alleges that during his time onboard ship and during his time at the machinist mate school at the Great Lakes Naval Base, he was exposed to asbestos. Specifically, he stated that he worked as a machinist mate in the engine room onboard ship, and that the pipes that he worked on were wrapped in 2 to 6 inches of asbestos. The veteran stated that he was in direct contact with asbestos materials used on engines on a daily basis for 13 months. Further, the veteran explained that while he was in machinist mate school, he underwent extensive training in applying and removing asbestos. The veteran stated that he mixed the asbestos powder and applied it directly to the engines, and also used hatchets and other tools to remove the asbestos from the engines causing him to inhale asbestos dust. Based on his inservice duties, and a review of his service personnel records, the Board concludes that the veteran was exposed to asbestos during his active duty service. The veteran admits to a history of tobacco use. The veteran stated that he began smoking cigarettes 3 months after separation from service, and quit approximately 20 years thereafter. The veteran's service medical records are negative for any complaints or findings of a lung disorder. In January 1955, the veteran underwent a separation examination. At that time, the veteran's respiratory system was clinically evaluated as "normal." Medical treatment records from January 2002 through February 2004 revealed diagnoses of chronic obstructive pulmonary disorder (COPD), shortness of breath, emphysema, bronchitis, chronic respiratory failure, congestive heart failure, and pulmonary fibrosis. A March 2002 Pulmonary Function Report indicates that the veteran showed a severe obstructive ventilatory defect, significant hyperinflation and air trapping in the lungs, increased airway resistance, and severely reduced diffusion capacity. The impression was very severe COPD, positive bronchodilator response, hyperinflation and air trapping, and anatomic pulmonary emphysema. A March 2003 chest x-ray revealed advanced emphysematous changes with bullous disease suspected in the apical regions. The impression was that there were findings of advanced emphysema. An April 2003 chest x-ray noted findings of chronic parenchymal changes bilaterally in the mid-lung fields. A June 2003 chest x-ray noted emphysematous changes of the lungs. In July 2004, a VA respiratory examination was conducted. The report noted that the veteran was on 24-hour oxygen, and was chronically confined to a wheelchair. The VA examiner diagnosed severe COPD, chronic respiratory failure, chronic congestive heart failure, cor pulmonale, and pulmonary fibrosis. The VA examiner also noted that the veteran had a prior history of tobacco use, which had been discontinued 20 years prior. The VA examiner opined that the "veteran's current respiratory distress would not be at least as likely as not related to his possible exposure to asbestos while in the service but would be much more likely attributable to other known factors, which are evident on review of his records along with physical exam at this time including his chronic obstructive pulmonary disease with chronic congestive heart failure." A July 2004 chest x-ray noted right upper lobe infiltrate and areas of consolidation with associated atelectatic change, and mild changes of infiltrate within the right middle lobe and possibly within the lingula. A September 2004 computed tomography (CT) scan of the lungs revealed pleural parenchymal scarring in both long apices along with bullous changes, some extensive fibrotic changes in the right upper lobe, consolidated densities of areas of atelectasis or consolidated infiltrate in the right upper lobe, several scattered rounded densities in both lungs with some small calcifications, and a speculated mass in the left lung base. The impression was extensive emphysematous changes throughout the lungs, bilateral apical pleural parenchymal scarring, dense consolidated areas of the right upper lobe, along with what appeared to be fibrosis. In May 2004, a CT scan of the chest was performed, which revealed bilateral marked distortion of the lung parenchyma within the upper lobes, particularly of fibrotic scarring, bulla, and emphysematous changes. The impression was overall significant improvement in bilateral lung infiltrates and areas of consolidations with one smaller area of persistent consolidation in the right upper lobe. In a September 2004 letter, the veteran's VA treating physician opined that "asbestos exposure is very significant historically and very likely contributed in some degree to the development of [the veteran's] lung disease. It is known that this risk is compounded by the exposure to smoking which came later for [the veteran]. [The veteran has] significant lung disease that seems to me to be out of proportion to [his] smoking history of 1/2 to 1 packs per day for twenty years." An October 2005 x-ray of the chest showed chronic pleural thickening, retraction, fibrosis, and that the lung fields were hyperaerated. Also in October 2005, a positron emission tomography (PET) with CT scan was performed, which revealed that two pulmonary nodules had an intense increase in metabolic activity and were highly suspicious for either metastatic lesions or a lung primary with metastatic disease. There were also several focal areas of mild increase in metabolic activity in both lungs, nonspecific in etiology. A chest x-ray, performed in August 2006, revealed an impression of old granulomatous disease, interval resolution of the right upper lobe infiltrate, and left retrocardiac opacity which may represent possible developing infiltrate versus atelectatic change versus scarring. A November 2006 chest x-ray revealed numerous bilateral calcified granuloma and biapical parenchymal scarring. A PET scan was performed in May 2007, which revealed an impression of an intensely metabolically active nodule in the right lung. A CT scan of the chest was also performed in May 2007, which revealed a new nodule posteriorly in the right lung, and central lobar emphysema. In a May 2007 treatment letter, the veteran's treating pulmonologist stated that "[a]lthough he suffers from COPD, chronic bronchitis and emphysema he also has pulmonary fibrosis and calcifications in his lungs suggesting that asbestosis is also a major factor in the cause of his breathing problems. This is due to the fact that [the veteran] has had significant exposure during his work on Navy ships." In a June 2007 treatment letter, the veteran's VA treating physician stated that the veteran's history of tobacco use was one pack per day for 25 years, and that the veteran quit smoking 20 years ago. The VA physician opined that the veteran's "symptoms far exceed what would be expected from this smoking history." She noted that she agreed with the treating pulmonologist's opinion that the veteran's "pulmonary fibrosis is highly likely to be directly related to [his] exposure during [his] work on Navy ships." Presently, the veteran has been diagnosed with multiple lung disorders, including COPD, bronchitis, emphysema, chronic respiratory failure and pulmonary fibrosis. Treatment for a chronic lung disorder is not indicated in the veteran's service medical records, or for many years thereafter. Nonetheless, there is medical evidence attributing his current lung disorder, at least in part, to his inservice asbestos exposure. On review of the record, and with full consideration of the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)), the Board finds that the veteran's current lung disorder cannot be reasonably dissociated from his inservice exposure to asbestos. While 25 years of smoking cigarettes is also shown to cause impairment to the veteran, this is apparently implicated in the veteran's respiratory problems. Accordingly, the veteran's lung disorder may be considered to have been incurred or aggravated in active service, warranting service connection. ORDER Service connection for a lung disorder is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs