Citation Nr: 0814243 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 07-19 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from January 1946 to October 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Reno, Nevada, Regional Office (RO). A hearing was held at the RO before the undersigned Vetrans Law Judge in March 2008. The Board granted a motion to advance the appeal on the docket at the time of the veteran's March 2008 Travel Board hearing. FINDINGS OF FACT 1. The veteran was exposed to asbestos during service as a result of his duties as a. ship fitter and metal smith. 2. The medical evidence shows that this asbestos exposure played a significant role in the development of interstitial respiratory disease. CONCLUSION OF LAW Interstitial respiratory disease was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS 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. The veteran's testified during the hearing held in March 2008 that while he was in the Navy he was exposed to asbestos while living and working aboard a ship. He recounted that there were insulated pipes over his bunk which frequently flaked asbestos all over him. He stated that this often occurred when the big guns on the ship fired and caused everything to shake. He also reported being exposed to asbestos in his duties which required welding and repairing parts of the ship. The veteran's service personnel records reflect that the veteran's military occupational specialties included ship fitter and metal smith. The records also confirmed that he served aboard ships. The Board finds that the claim that the veteran was exposed to asbestos in service in his duties is supported by the VA manual cited above which notes that one of the major occupations involving exposure to asbestos is work in shipyards. In this regard, the Board notes that being a ship fitter (one of the veteran's duties) would potentially involve duties similar to working in a shipyard. Therefore, the Board finds that the veteran's testimony and the information contained in his service personnel records are adequate to demonstrate that he was exposed to asbestos during service. With respect to whether the veteran has a disability that is attributable to that asbestos exposure, the Board notes that the medical evidence which has been developed includes the report of a respiratory examination conducted by the VA in September 2007. The report reflects that X-rays of the veteran's chest revealed diffuse emphysema with scattered areas of interstitial fibrosis. The impression was moderate COPD with scatter areas of interstitial fibrosis. Similarly, the CT scan conducted in connection with the VA examination showed that the lungs had some minimal diffuse interstitial scarring without dominant mass. In a summary of all problems, diagnoses and functional effects, the VA examiner offered diagnoses of moderate COPD with scattered areas of interstitial fibrosis. He also reported that there was no pleural plaque of asbestosis by chest x-rays dated in July 2007 and a scan dated in December 2004. The examiner indicated that the veteran had restrictive respiratory disease, the etiology of which was smoking. However, the examiner further noted that the veteran had "Problem associated with the diagnosis: Asbestosis related respiratory condition." The VA examination suggests that the veteran has two types of impairment affecting his lungs, some of which is attributable to asbestos and some of which is due to smoking. The VA manual indicates that interstitial pulmonary fibrosis (one of the diagnoses noted on the VA examination report) is one of the diseases which can result from asbestos exposure. The medical evidence, specifically the diagnosis of "Asbestosis related respiratory condition" shows that this asbestos exposure played a significant role in the development of interstitial respiratory disease. Accordingly, the Board concludes that interstitial respiratory disease was incurred in service. 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 ORDER Service connection for a respiratory disorder claimed as due to asbestos exposure is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs