Citation Nr: 0807858 Decision Date: 03/07/08 Archive Date: 03/17/08 DOCKET NO. 06-00 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The veteran served on active duty from October 1944 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for asbestosis. The veteran testified before the undersigned at a March 2007 hearing at the RO. He also testified at an April 2006 hearing before a Decision Review Officer (DRO). Transcripts have been associated with the file. FINDING OF FACT The evidence is at least in equipoise that the veteran's asbestosis is related to his asbestos exposure during active service. CONCLUSION OF LAW The veteran's asbestosis was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Service Connection The veteran contends that he is entitled to service connection for asbestosis as a result of asbestos exposure during his military service. For the reasons that follow, the Board concludes that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). 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). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions 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. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include 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 sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). 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 id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. After a thorough review of the claims file, the Board finds that there is sufficient evidence to establish that the veteran was exposed to asbestos while in service. See Hickson, supra. According to his service personnel records and service separation form, the veteran served in the occupation of a cook and was stationed aboard the USS McCaffery, a Navy destroyer. The veteran contends that it was on this ship where he was exposed to asbestos-wrapped pipes in his sleeping quarters and asbestos dust in the galley where was assigned to work. At the April 2006 DRO hearing and the March 2007 Travel Board hearing, he testified that in addition to his primary duty station in the galley, he was the first loader on a 40 mm quad 40 during General Quarters, his combat battle station. The veteran stated that after the guns were fired, he would return to the galley to find the counters and hoppers covered with asbestos dust that had fallen off the overhead pipes. It was then necessary for him to wipe off the dust before he could begin cooking. The veteran's testimonies with respect to asbestos exposure are not contradicted by any evidence of record. In this regard, the Board finds the veteran's testimonies to be credible and concludes in turn that it is at least as likely as not that he was exposed to asbestos during service. As such, the Board will now consider whether the veteran currently has the disability for which he claims service connection. The veteran testified that he first became aware of his asbestos-related lung disorder in the 1990's. A letter from Dr. J.D. dated in October 2000 confirms that signs of asbestosis were discovered no later than in January 1995. In the letter, Dr. J.D. states that X-rays, as confirmed by physical examination, revealed pleural calcifications suggestive of asbestosis. He also notes that the results of a June 1995 chest X-ray and a June 1996 pulmonary function test are consistent with asbestosis due to occupational exposure to asbestos. X-rays of the chest were taken in October 2002. The radiologist found diffuse pleural calcification, likely from prior exposure to asbestos. He recommended obtaining a CT examination for further evaluation. A CT scan of the chest was performed in October 2004. Again, it was noted that the veteran had extensive calcified pleural plaques, the findings of which were consistent with asbestosis. In light of the aforementioned medical reports, the Board concludes that there is sufficient evidence to conclude that the veteran currently has asbestosis. See Hickson, supra. These medical opinions are consistent in their findings of an asbestos-related disease and are uncontradicted by any other medical evidence of record. The Board also finds that the veteran's current asbestosis disability was incurred in service. See Hickson, supra. As discussed above, the veteran was exposed to asbestos while stationed aboard the USS McCaffery. While the veteran did work at a Navy Yard for approximately 7 months prior to entering the service and was exposed to asbestos during that time, it is well established that he has had no asbestos exposure since separation from service. In fact, he testified at the Travel Board hearing that, after service separation, he worked as a police officer for 28 years. The Board finds this period of non-exposure to asbestos to be significant in establishing that the veteran's current asbestosis is related to asbestos exposure during service. In view of these findings, the Board concludes that the evidence is at least evenly balanced as to whether the veteran has asbestosis as a result of in-service exposure to asbestos, and, therefore, service connection is warranted. The benefit-of-the-doubt rule has been applied in reaching this decision. See 38 U.S.C. § 5107(b) (West 2002); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, supra. II. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the Board is granting in full the benefit sought on appeal. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for asbestosis is granted. ____________________________________________ MICHELLE L. KANE Chief Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs