Citation Nr: 0812028 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-00 047 ) 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: The American Legion ATTORNEY FOR THE BOARD Ernest Lee, Associate Counsel INTRODUCTION The veteran had active service from September 1953 to December 1959. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of March 2004 by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The claim for service connection for asbestosis was denied by the RO in March 2004. The claim was denied again by the RO in a de novo readjudication on November 2004. The case is now before the Board for appellate review. FINDING OF FACT The probative evidence of record shows a nexus between asbestos exposure in service and a current respiratory disability. CONCLUSION OF LAW Service connection for asbestosis is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability because of a disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303. Service connection may 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 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, the following must be present: medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and 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 Board notes that there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations for these types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (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 the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure, under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Veteran's Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the claim-development procedures). With these claims, the RO 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, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2005). 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. However, in the case of 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. According to the veteran's form DD-214 and service records, the veteran's military occupational specialty was airline mechanic. The veteran's statement dated August 2005 disclose that he worked on brakes, heating systems, and other parts of the plane that required insulation as part of his duties as an airline mechanic in the U.S. Air Force. The August 2005 statement also includes a disclosure where the veteran states that some of the barracks that he lived in contained asbestos. The Board acknowledges that the occupation engaged in by the veteran would possibly subject him to regular exposure to asbestos. For the sake of analyzing the veteran's claim, the Board will accept the fact that the veteran was exposed to asbestos while repairing breaks, heating systems and other parts of the airplane requiring insulation. Service medical records are negative for any complaints, findings, or diagnosis of a disability due to asbestos exposure. The Report of Medical Examination given in November 1955 for separation from service disclosed that the veteran's lungs and chest were rated as normal. The Board notes that the evidence of record contains treatment records from three physicians: Dr. Fenton E. Froom, M.D. of the Kissimmee Outpatient Center, Dr. Muhammad K. Shaukat, M.D. of The Lung Clinic, P.A., and a physician at a VA Medical Facility in Tampa, Florida. The veteran visited Dr. Froom in May 2003 where he conducted a CT chest examination on the veteran. As for the lungs, Dr. Froom's report disclosed the following: "1) a few small bilateral calcified granulomas, 2) two left mid lung nodules, one measuring about 8mm. and the other measuring 2 mm. or 3 mm., which are not definitely calcified and have indefinite etiologies. Follow up is recommended, and 3) minor lingula scarring or atelectasis." Dr. Floom did not provide any conclusions or a diagnosis as to whether asbestos exposure impacted the condition of the veteran's lungs. Based on the documents contained in the evidence of record, the veteran received treatment from Dr. Shaukat from April 2003 to July 2003. The treatment reports for April 2003, May 2003, and July 2003 contain assessments of the veteran's medical condition as it relates to asbestos exposure and an asbestosis condition. The April 2003 report states that the veteran has "positive asbestos exposure with restrictive changes on PFTs (pulmonary function tests). Asbestosis is suspected." The May 2003 report states: "History of asbestosis exposure. CXR (chest x-ray) is not showing changes consistent with asbestosis-related disease." The July 2003 report states the following: "Asbestosis. Positive history of exposure. Abnormal CT showing scarring possibly secondary to asbestosis." Along with these reports from Dr. Shaukat, the evidence of record contains two letters from October 2003 and January 2005 which provide statements regarding the veteran's respiratory condition. The October 2003 letter states the following: "The patient is under my care with the diagnoses of asbestosis, asthma, sleep apnea, and lung nodule." The letter also states the following: "History of exposure to asbestosis while [sic] as aeroplane mechanic, this is probably the cause of the patient's abnormalities seen on the CAT scan." The January 2005 letter contains the following statement: "I believe that his current condition is related to exposure from the asbestos he received while in the service according the information I have reviewed." On the other hand, another opinion, which is of record, appears to weigh against the claim. The veteran underwent a respiratory examination at a VA facility in Tampa, Florida in March 2004. The Laboratory Clinical Data contained the following disclosure: "No active evidence of asbestos." The VA examiner provided the following assessment: "...although he has a history of exposure asbestos and possibly asbestos scaring [sic] in the lungs, his physical limitations are more likely unrelated to asbestos exposure and more likely related to nicotine abuse and recurrent bronchitis." The examinations performed by the VA examiner and Dr. Shaukat each provide probative information to analyze the veteran's claim. Both examiners came to different conclusions as to the cause of the veteran's lung condition and whether the veteran suffers from asbestosis. The examination records from Dr. Shaukat came to the conclusion that the veteran's lungs showed scarring from asbestosis while the VA examiner took the position that there was a possibility of scarring from asbestos exposure. Also, the VA examiner took the position that the veteran's physical limitation of chronic obstructive lung disease resulted from many years of smoking and bronchitis rather than asbestos exposure. Dr. Shaukat concluded that the veteran was exposed to asbestos while the VA examiner acknowledges past asbestos exposure, possible asbestos scarring, but no active evidence of asbestos. Upon reviewing the examination records from both the VA examiner and Dr. Shaukat, the Board finds that the evidence in favor of the claim and against the claim to be in equipoise. The Board will, therefore, apply the benefit-of- the doubt doctrine in favor of the veteran. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The claim will be granted. . The Board has considered the veteran's claim with respect to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West 2003). Given the favorable outcome below no conceivable prejudice to the veteran could result from this adjudication. In this regard, the agency of original jurisdiction will be responsible for addressing any VCAA notice defect with respect to the rating and effective date elements when effectuating the award. . See Dingess v. Nicholson, 19 Vet. App. 473 (2006). ORDER Entitlement to service connection for asbestosis is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs