Citation Nr: 0918056 Decision Date: 05/13/09 Archive Date: 05/21/09 DOCKET NO. 06-18 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an obstructive airway disease, claimed as asbestosis. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran, his Spouse, and a VA Physician ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from February 1944 to February 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Reno, Nevada, Regional Office (RO). FINDING OF FACT After resolving all doubt in the Veteran's favor, the Veteran's obstructive airway disease, claimed as asbestosis, had its onset in service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, an asbestos- related respiratory disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Given the favorable nature of the Board's decision on the issue of service connection for a pulmonary disability, there is no prejudice to the Veteran, regardless of whether VA has satisfied its duties of notification and assistance. Entitlement To Service Connection For Chronic Obstructive Airway Disease, Claimed As Due To Asbestos Exposure. The Veteran believes his respiratory disorder, variously diagnosed as asbestosis and chronic obstructive airway disease, is due to asbestos exposure during service. Service connection may be granted for disability because of a disease or injury that was incurred 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) (2008). 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. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Facts and Analysis The Veteran asserts that he was exposed to asbestos during service when he was working as a machinist's mate in the engine room of the U.S.S. Yancey. In particular, he alleges that he worked up to 36 hours at time, for nearly 20 months, repairing and replacing asbestos-covered pipes, boilers, and water distillers. According to the Veteran's form DD-214, the Veteran's military occupational specialty was machinist. The Board acknowledges that the occupation engaged in by the Veteran would possibly subject him to exposure to asbestos. For the sake of analyzing the Veteran's claim, the Board will accept the fact that the he was exposed to asbestos while doing extensive pipe repair/removal on board the U.S.S. Yancey from 1944-1945. Even assuming the Veteran definitively was exposed to asbestos in service, mere exposure to a potentially harmful agent alone is not the only requirement for eligibility for VA disability benefits. Again, the medical evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between the current disability and exposure to asbestos in service. Hickson, supra. As to the question of current disability, although the record reflects a current diagnosis of chronic obstructive airway disease, the competent evidence also includes multiple diagnoses of asbestosis as well as clinical findings consistent therewith. Thus, the Veteran has satisfied the first requirement for service connection. Next, as to the question of asbestos exposure, as explained above, while there is no documented asbestos exposure during service (or post-service, for that matter), it is at least as likely as not that the Veteran was exposed in his duties as a machinist in the Navy. Thus, asbestos exposure is conceded by the Board. The Board must now determine whether the Veteran's claimed asbestosis is causally related to his in-service asbestos exposure. At the outset, the Board notes that the Veteran's service medical records show no complaints, findings, or diagnoses of any lung disorders, including any asbestos-related lung problems. In fact, his entrance examination indicates a normal respiratory system, and a contemporaneous X-ray of the chest was negative. Upon separation examination in 1946, the Veteran's respiratory system (including bronchi, lungs, and pleura) was again normal, and photoflurographic examination of the chest was essentially negative. The first post-service evidence of record of any possible lung problem is in December 2000, decades after the Veteran's separation from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Although the absence of treatment for many years after service is usually considered probative evidence against the claim, the Board acknowledges that it is not uncommon for asbestos related diseases to have lengthy latency periods. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7- IV-4 (January 31, 1997). Indeed, as noted above, 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) (Emphasis added). Therefore, in the instant case, the absence of treatment for asbestosis for many years after separation from service will not be considered as evidence against the claim. As noted above, treatment for respiratory-related symptomatology is first noted in a VA outpatient record dated in December 2000, which indicates that the Veteran was suffering from a lung infection. In December 2001, a VA treatment record reflects that the Veteran complained of having a "bad, dry cough," which he related to in-service asbestos exposure. Upon physical examination, diffuse crackles were heard throughout the lungs. A contemporaneous chest X-ray revealed new pleural effusions, and the Veteran was scheduled for a CT scan in order to further evaluate the new onset of effusions. The Veteran was also prescribed a nebulizer for treatment of related respiratory symptomatology. In January 2003, private treatment records reflect that the Veteran was evaluated for complaints of an unproductive cough. Physical examination again revealed crackling sounds in the lungs; a chest X-ray demonstrated reactive airway disease. Notably, the assessment provided was asbestosis. In May 2003, a CT scan revealed basilar scarring; however, there were no new pleural masses or effusions when compared with the January 2002 CT scan. Private treatment records from the Red Rock Medical Facility continue to show complaints of respiratory related problems, including shortness of breath, coughing, and fatigue. A June 2003 treatment record from the private facility shows that the Veteran complained that his lung condition was worsening. Objectively, there was diffuse crackling heard throughout the lungs. No diagnoses related to the lungs were provided at that time. In January 2004, the Veteran underwent a CT scan of the thorax. Significant findings included the following: the lungs were mildly, hyperinflated, but demonstrated no emphysema or peribroncial interstitial prominence. The findings were suggestive of obstructive airway disease. Calcified pleural thickening of the right upper lobe of the lung, consistent with inflammatory insult, probably granulomatous, was also shown. The final impression was possible mild obstructive airway disease, and old mild post- inflammatory scarring in the right pleura, possibly granulamatous. In February 2004, the Veteran underwent a VA respiratory examination. Subjectively, he complained of a productive cough, sputum formation, and dyspnea upon exertion during talking, sitting, and walking. He stated that he was not asthmatic. Upon objective examination, the VA physician's assistant (PA) cited to the January 2004 CT scan, which demonstrated obstructive airway disease, pleura scarring, and calcified pleural thickening. The PA confirmed the obstructive airway disease diagnosis, and although asbestos exposure was expressly conceded, he ultimately concluded that there was no X-ray evidence of asbestosis at that time. No nexus opinion was requested or provided. In March 2004, private medical records reflect that the Veteran complained of congestion; he was diagnosed with pneumonia. That same month, the Veteran was treated at a VA facility for fatigue and chronic coughing. Upon objective examination of the lungs, Dr. Toppo, the Veteran's treating VA physician, noted greatly diminished breath sounds and diffuse rhonchi; he provided a primary diagnosis of asbestosis, COPD, and bronchitis. In April 2004, pulmonary function tests (PFTs) demonstrated the presence of an "obstructive lung defect;" a contemporaneous chest X-ray revealed hyperinflation of the lungs, but no active effusions were shown at that time. In a July 2004 private treatment record, the Veteran complained that his lung condition, which he described as asbestosis, was worsening. Objectively, there were diffuse bilateral crackles heard throughout the lungs. He was diagnosed with bronchitis and prescribed a nebulizer treatment. Contemporaneous VA treatment records reflect similar complaints of "lung" problems. The Veteran was prescribed "breathing treatments" that consisted of albuterol, atrovent, and decadron via a nebulizer. Again, Dr. Toppo provided a primary diagnosis of asbestosis and bronchitis. In April 2004, VA treatment records show that the Veteran was again complaining of a non-productive cough and associated shortness of breath. Objectively, the breath sounds were clear and diminished bilaterally in the upper lobes. In July 2005, private treatment records reflect that the Veteran passed out, or experienced a syncopal episode; he further described having a slow irregular heart beat, dizziness, and fatigue. Objectively, there was diffuse, bilateral crackling in the lungs. The physician provided diagnoses of asbestosis and a syncopal episode. In November 2006, a lateral chest X-ray revealed an increase in lung markings, bilaterally, with left-sided pleural effusions. The impression was mild underlying chronic changes with left effusion. The Board notes that the record contains both positive and negative nexus opinions from VA physicians. The February 2006 opinion, which consists of hearing testimony from the Veteran's treating physician, Dr. Toppo, supports a current asbestosis diagnosis and relates it to in-service exposure. The other opinion, from an October 2008 VA examination, finds that the Veteran does not, in fact, have asbestosis, but rather obstructive airway disease secondary to asthma, neither of which are related to in-service asbestos exposure. The probative value of both opinions will be discussed fully below. In evaluating the probative value of competent medical evidence, the Board notes that the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). With respect to the opinion in support of the Veteran's claim, the Board notes that the Veteran and his treating physician, Dr. Toppo, provided testimony at Regional Office hearing in February 2006. Dr. Toppo, who had examined the Veteran on numerous occasions and provided asbestosis diagnoses in March and July 2004, noted that he reviewed the Veteran's record prior to giving testimony. He explained that the Veteran's asbestosis was currently being treated with Albuterol inhalers, and nebulizer treatments up to four times a day. He further explained that the April 2004 chest X-ray abnormalities, which included pleural thickening and possible granulomas, were indicative of asbestosis. In fact, he specifically stated asbestos on a chest X-ray would look exactly like the Veteran's - i.e., with calcified, pleural thickening. He further referenced the July 2005 private treatment record from the Veteran's pulmonologist, which confirmed an asbestosis diagnosis. In sum, Dr. Toppo opined that, given the recent X-ray evidence of pleural thickening, along with the aforementioned July 2005 diagnosis, reasonable doubt should be resolved in the Veteran's favor as to a finding of an asbestos-related lung disease. In so finding, he also considered the Veteran's lack of post-service asbestos exposure and his early history of smoking. He reasoned it was unlikely that smoking for a few years nearly 56 years ago would cause partial obstructive airway disease. He also stated that asbestosis would not be shown on PFTs until the disease was well-advanced; in other words, he explained that one can have asbestosis and have fairly normal PFTs up to a certain point, after which defusing capacity becomes almost non-existent and oxygen is required. With respect to the opinion against the Veteran's claim, pursuant to the Board's October 2008 remand instructions, the Veteran was examined and an opinion was obtained as to the likely etiology of his lung problems. At examination in October 2008, the examiner indicated that the claims file and available medical records were reviewed. According to the Veteran, by history, he did experience some hay fever/asthma symptomatology as a child. He reported that did not have any such nasal symptoms or chest wheezing during service; however, those symptoms returned shortly after discharge from active duty in 1946. Historically, the Veteran also reported that he smoked cigarettes from the age of 22 to 30; that his father had a positive history for TB; and that he was treated as an outpatient for pneumonia and pleurisy in 1958. At the time of the VA examination, the Veteran was on intermittent oxygen and a bronchodilator; his cough was also intermittent and non-productive. The examiner noted no history of hospitalization/surgery, trauma to the respiratory system, neoplasms, pneumothorax, emphysema, wheezing, or swelling. The Veteran did report a history of dyspnea upon mild, moderate, and severe exertion. Upon physical examination, chest expansion was slightly limited and there was evidence of wheezing. A contemporaneous lateral chest X-ray demonstrated a blunting of the left costophrenic margin, which was thought to represent pleural effusion or pleural thickening. The lungs were otherwise clear, and no suspicious osseous abnormalities were noted. The VA examiner concluded based on the history provided, that the preponderance of objective evidence was consistent with chronic obstructive lung disease, secondary to asthma. The examiner explained that PFT findings in 2004 were consistent episodic asthma, even though the PFT conducted in 2007 was normal. He found no evidence of active asbestosis. The examiner further explained that an abnormal chest X-ray "may" be related to his TB exposure as a child, a positive skin test, a spot on his lungs, pleurisy, or previous pneumonia, rather than asbestosis. In his opinion, the Veteran's obstructive airway disease and/or asthma were not caused by his asbestos exposure while in-service. The VA examiner's rationale, which is rather lengthy and convoluted, included the following: based on the history as provided by the Veteran, he had asthma prior to service, which completely cleared while on active duty, and then reoccurred shortly after separation. His current obstructive airway disease is the result of his adolescent asthma, which improved in-service and is not related to asbestos exposure, as was previously confirmed on several occasions. Thus, the examiner concluded, it is more likely than not that his current airway complaints are related to his prior airway disease or asthma, and with a 6 year history of smoking, than to any service exposure. After giving careful consideration to both opinions outlined above, the Board finds the February 2006 opinion of Dr. Toppo to be more probative as to the issues of diagnosis, nexus, and etiology. In so finding, the Board notes that the October 2008 examiner did not explain the criteria for a diagnosis of asbestosis or asbestos-related diseases, as instructed by the Board's remand order. Further, the examiner entirely failed to address the fact that the Veteran has numerous X-ray findings of pleural effusions, a radiographic change which has been recognized by VA as an indicator of asbestos exposure. See M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The Board acknowledges that this examiner did not find evidence of asbestosis; rather, he attributed the Veteran's airway disease to "adolescent asthma." Notably, other than the examiner's isolated finding of asthma, which was based on a single PFT in 2004, the record is entirely devoid of treatment, diagnoses, or complaints related to asthma. This includes the Veteran's entrance examination from 1944, which noted no history of asthma, pleurisy, or any other pre- existing lung-related conditions. In this regard, the Veteran is presumed to have been in sound condition upon entry to service, and the record does not contain clear and unmistakable evidence to rebut such presumption. See 38 U.S.C.A. § 1111. Thus, any opinion based on a finding that a chronic respiratory disability pre-existed service must be discounted as being inconsistent with the evidence of record. Even assuming, arguendo, that the Veteran's childhood asthma caused or contributed to the current lung condition, it is almost inconceivable that the Veteran could go nearly 65 years without documented treatment for or findings of asthma. Notably, the October 2008 VA examiner did not account for this lengthy absence of symptoms and/or treatment. Finally, the Board concedes that the Veteran told the examiner that he had hay fever/asthma as a child; however, the Veteran's lay statement is not a sufficient basis upon which to conclude that the current lung disability is secondary to an unverified and undiagnosed account of childhood asthma/hay fever. For the foregoing reasons, the Board finds that Dr. Toppo's opinion, which relates the in-service asbestos exposure and the current clinical findings to an asbestosis diagnosis, is more persuasive and probative than that of the October 2008 VA opinion. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As the Veteran was likely exposed to at least some asbestos during service, and as at least one VA examiner has found that his respiratory disability was related to his asbestos exposure in service, the Board finds that the Veteran's obstructive airway disease is, at least in part, the result of asbestos exposure during service. In so finding, the Board has also considered both, the Veteran's documented pleural effusions, which are known to be indicative of asbestos exposure, as well as the lengthy latency periods that are associated with many asbestos-related diseases. Accordingly, after considering all the evidence of record, and resolving any doubt in favor of the Veteran, the Board finds that the Veteran's asbestos-related pleural disease is the result of asbestos exposure during service. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 38 U.S.C.A. § 5107(b). Thus, service connection is warranted. ORDER Entitlement to service connection for an obstructive airway disease, claimed as asbestosis. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs