Citation Nr: 0920085 Decision Date: 05/29/09 Archive Date: 06/08/09 DOCKET NO. 07-03 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a long condition due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2008, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board requested an opinion from the Veterans Health Administration (VHA) of VA in November 2008. A response was received in March 2009. The Veteran and his representative were provided with a copy of the medical opinion. The Veteran's representative responded to letter within the 60- day time limit. Accordingly, this issue is before the Board for appellate review. See 38. C.F.R. § 20.903. FINDING OF FACT The competent medical evidence of record indicates that the Veteran's calcified pleural plaques are due to exposure to asbestos in service. CONCLUSION OF LAW A lung disorder to include asbestos related pleural disease was incurred in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Merits of the Claim for Service Connection The Veteran filed a claim for a lung condition to include asbestos related pulmonary disease in July 2005. The RO denied the Veteran's claim in May 2006. The Veteran appeals this decision. Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for a 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 addition, service connection may be presumed for certain chronic diseases that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of 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); Pond v. West, 12 Vet. App. 341, 346 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board notes that the Veteran contends that his pulmonary disorders are related to asbestos exposure in service. There is no specific statutory guidance with regard to asbestos- related claims, nor has the Secretary of VA promulgated any regulations concerning 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 have been included in the VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The United States Court of Appeals for Veterans Claims (the 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 these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion 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. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). 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. 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 World War II, U.S. 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). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. The Court has held 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. Dyment v. West, 13 Vet. App. 141, 145 (1999). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). In short, with respect to claims involving asbestos exposure, VA must determine whether the Veteran's 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). As noted above, in order for the Veteran to be entitled to service connection for a lung condition, the medical evidence must show a current diagnosis of the claimed disorder. A VA examination in May 2006 provided the Veteran with a diagnosis of calcified pleural plaques and chronic obstructive pulmonary disease. Thus, the first criterion for service connection has been met. Regarding the issue of whether there is evidence of an in- service disease or injury, the Board notes that the service medical records reveal some complaints of chest pain, however there was no evidence of a diagnosis of a chronic lung disorder to include calcified pleural plaques and chronic obstructive pulmonary disease. The Veteran's separation examination noted that his lungs and chest were normal. The Board notes that the Veteran contends that his current lung condition was caused by exposure to asbestos. The Veteran's service records indicate that he served as a machinist mate on the U.S.S. Blandy and the U.S.S. Lawrence. The Veteran asserted that he worked in the engine room of a destroyer in the Navy and that he had to remove asbestos to perform his duties. A machinist mate is responsible for a ship's steam propulsion, and for maintaining auxiliary equipment and on deck machinery. The Board finds that the Veteran's military occupational specialty was one, which would normally place him at high risk of exposure to asbestos. The overall record supports a conclusion that the Veteran was exposed to asbestos in service. The medical records indicate that the Veteran was exposed to asbestos. Specifically, a CAT scan of the Veteran's chest in October 2002 and April 2004 revealed calcified pleural plaques consistent with asbestos related pleural disease. The evidence of record shows that after military service the Veteran worked in an electronic plant for several years and then he worked as a barber. Thus, his post-service work history is negative for asbestos exposure. Accordingly, the Board concedes that the Veteran was exposed to asbestos in military service. The Board observes that the competent medical evidence of record indicates that the Veteran's pleural disease is related to asbestos exposure. A radiologist in October 2002 reported that a CAT scan of the Veteran's chest revealed multiple calcified pleural plaques consistent with asbestos related pleural disease. A VA examination in March 2006 provided the opinion that the Veteran had asbestos related pleural disease. In May 2006, the examiner provided an addendum to the March 2006 examination report after conducting further tests, which revealed that the calcified pleural plaques are consistent with prior asbestos exposure, but not diagnostic of asbestosis. The examiner further asserted that the mild restriction of the lung was likely related to chronic obstructive pulmonary disease or obesity and note related to asbestosis. Moreover, a VA medical expert in March 2009 provided the opinion that the Veteran likely has asbestos related pleural disease. However, he noted that this pleural disorder was not a cause for his chronic lung disease and that there was insufficient evidence to support lung disease caused by asbestosis. Based on the above evidence, the Board concludes that the Veteran was most likely exposed to asbestos in service, the evidence of record indicates that he was not exposed to asbestos pre or post service, and the Veteran has a lung condition that has been attributed to asbestos exposure by several medical professionals. Resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's asbestos related pleural disease is related to active military service. Thus, the Veteran's claim is warranted. ORDER Entitlement to service connection for a pleural disorder due to exposure to asbestos is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs