Citation Nr: 0938771	
Decision Date: 10/13/09    Archive Date: 10/22/09

DOCKET NO.  07-29 196	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to service connection for lung cancer, to include 
as a result of in-service exposure to asbestos.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Theresa M. Catino, Counsel





INTRODUCTION

The Veteran served on active duty from February 1943 to March 
1946.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2007 rating action in which 
the Department of Veterans Affairs Regional Office (RO) in 
Cleveland, Ohio denied service connection for lung cancer, to 
include as a result of in-service exposure to asbestos.  [Due 
to the location of the Veteran's residence, the jurisdiction 
of his appeal remains with the RO in Pittsburgh, 
Pennsylvania.]  

Please note that this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2008).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).  


FINDINGS OF FACT

1.  The Veteran's in-service responsibilities with the United 
States Navy aboard multiple vessels during World War II 
exposed him to asbestos.  

2.  The Veteran's in-service exposure to asbestos led to his 
subsequent development of squamous cell lung carcinoma.  


CONCLUSION OF LAW

Squamous cell lung carcinoma was incurred in service as a 
result of in-service asbestos exposure.  38 U.S.C.A. §§ 1110, 
5107 (West 2002); 38 C.F.R. § 3.303 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties To Notify And To Assist

On November 9, 2000, the President signed into law the 
Veterans Claims Assistance Act of 2000 (VCAA), 
Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 
(West 2002 & Supp. 2008)).  The VCAA imposes obligations on 
VA in terms of its duty to notify and to assist claimants.  

The Board has considered the legislation regarding VA's duty 
to notify and to assist claimants but finds that, given the 
favorable action taken herein with regard to the Veteran's 
service connection claim, no further discussion of the VCAA 
is required with respect to this issue.  See, e.g., Bernard 
v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. 
Reg. 49,747 (1992).  

Analysis

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in the line of duty in the active military, naval, or air 
service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or 
disease occurred in service is not enough; there must be 
chronic disability resulting from that injury or disease.  If 
there is no showing of a resulting chronic condition during 
service, then a showing of continuity of symptomatology after 
service is required to support a finding of chronicity.  
38 C.F.R. § 3.303(b) (2009).  Service connection may be 
granted for any injury or disease diagnosed after discharge, 
when all the evidence, including that pertinent to service, 
establishes that the disease or injury was incurred in 
service.  38 C.F.R. § 3.303(d) (2009).  

There is no specific statutory guidance with regard to 
asbestos-related claims, nor has the Secretary promulgated 
any regulations in regard to 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 were included in the VA Adjudication 
Procedure Manual, M21-1 (M21-1), Part VI, § 7.21.  

In December 2005, M21-1, Part VI was rescinded and replaced 
with a new manual, M21-1MR, which contains the same asbestos-
related information as M21-1, Part VI.  VA must analyze an 
appellant's claim of entitlement to service connection for 
asbestosis or asbestos-related disabilities under the 
administrative protocols under the DVB Circular guidelines.  
See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 
4 Vet. App. 428 (1993).  

In essence, VA's Manual 21-1MR, Part IV, subpart ii, Chapter 
2, Section C, Topic 9b acknowledges that inhalation of 
asbestos fibers can result in fibrosis (the most commonly 
occurring of which is interstitial pulmonary fibrosis or 
asbestosis) and tumors, and produce pleural effusions and 
fibrosis, pleural plaques, mesotheliomas of the pleura and 
peritoneum, and cancer of the lung, bronchus, 
gastrointestinal tract, larynx, pharynx and urogenital system 
(except the prostate).  

Chrysotile products have their initial effects on the small 
airways of the lungs and result in lung cancer more often.  
M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9b.  
Lung cancer originates in the lung parenchyma rather than the 
bronchi and eventually develops in approximately 50 percent 
of persons with asbestosis.  M21-1MR, Part IV, subpart ii, 
Chapter 2, Section C, Topic 9c.  Current smokers who have 
been exposed to asbestos face an increased risk of developing 
bronchial cancer.  Id.  The latent period for the development 
of disease due to exposure to asbestos ranges from 10 to 45 
or more years between the first exposure and the development 
of the disease.  M21-1MR, Part IV, subpart ii, Chapter 2, 
Section C, Topic 9d.  

Some of the major occupations involving exposure to asbestos 
include work in shipyards, insulation work, manufacture and 
installation of products such as roofing and flooring 
materials, asbestos cement sheet and pipe products, as well 
as military equipment.  M21-1MR, Part IV, subpart ii, Chapter 
2, Section C, Topic 9f.  Indeed, a high exposure to asbestos 
and a high prevalence of disease have been shown in 
insulation and shipyard workers.  M21-1MR, Part IV, subpart 
ii, Chapter 2, Section C, Topic 9g.  In fact, during World 
War II, several million people employed in U.S. shipyards and 
U.S. Navy veterans were exposed to chrysotile products as 
well as amosite and crocidolite because these varieties were 
used extensively in military ship construction.  Many of 
these people have only recently come to medical attention due 
to the potentially long latent period between first exposure 
and the development of disease.  Id.  

The pertinent parts of the manual guidelines on service 
connection in asbestos-related cases are not substantive 
rules.  Further, there is no presumption that a veteran was 
exposed to asbestos in service.  Dyment v. West, 13 Vet. App. 
141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. 
Cir. 2002).  

Thus, with respect to claims involving asbestos exposure, VA 
must determine whether military records demonstrate evidence 
of asbestos exposure during service, whether there was pre-
service and/or post-service occupational or other asbestos 
exposure, and whether there is a relationship between 
asbestos exposure and the claimed disease.  M21-1MR, Part IV, 
Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-
88-8, Asbestos-Related Diseases (May 11, 1988).  Medical 
nexus evidence is required in claims for service connection 
for asbestos-related diseases associated with alleged 
asbestos exposure in service.  VAOPGCPREC 4-2000 (April 13, 
2000).

In order to warrant service connection for the Veteran's lung 
cancer in this case, therefore, the evidence must demonstrate 
not only that the Veteran was in fact exposed to asbestos 
during service but also that he has been diagnosed by a 
competent health care practitioner with that disease coupled 
with an opinion that such exposure was the cause of the 
current disorder.  M21-1MR, Part IV, subpart ii, Chapter 2, 
Section C, Topic 9h.  

In this regard, the Board notes that service personnel 
records confirm the Veteran's service aboard multiple vessels 
and at the Navy Yard in Philadelphia, Pennsylvania during his 
World War II service.  Based on this evidence, and after 
resolving all doubt in the Veteran's favor, the Board 
concludes that the Veteran was exposed to asbestos during his 
active duty.    

Service treatment records are negative for complaints of, 
treatment for, or findings of a pulmonary disorder.  Indeed, 
the Veteran did not receive medical care for respiratory 
problems until 2002, when he was treated for pneumonia and 
chronic obstructive pulmonary disease (COPD).  

X-rays taken of the Veteran's chest in March 2005 reflected 
the presence of an almost two centimeter nodular density in 
the perimeter of the left mid-lung zone on frontal view.  As 
this finding was not present on prior radiographic films, a 
computed tomography scan of the Veteran's chest was 
performed, and this study showed diffuse emphysematous bullae 
in both of the Veteran's lungs as well as a mass-like density 
in his left upper lobe.  

Subsequent pathology showed an area of focal invasive 
squamous cell carcinoma.  Thus, in September 2005, the 
Veteran underwent a left upper lobe lobectomy.  Thereafter, 
he continued to receive treatment for COPD and pneumonia.  

In May 2006, the Veteran underwent a VA miscellaneous 
respiratory diseases examination.  The examiner, who reviewed 
the claims folder in conjunction with the evaluation and 
conducted a physical examination of the Veteran, provided an 
impression of status post left upper lobe lobectomy for 
carcinoma of the lung.  

The examiner then opined that "it is at least [as] likely as 
not[--a] 50/50% probability[--that] the [Veteran's] lung 
cancer is caused by a result of asbestos exposure."  In 
support of this conclusion, the examiner acknowledged the 
Veteran's likely exposure to asbestos during his Navy 
service.  In addition, the examiner referenced medical 
treatise which document that etiological factors for lung 
cancer include "asbestos exposure especially combined with 
smoking."  

Significantly, the claims folder contains no medical opinion 
refuting the May 2006 VA examiner's conclusion.  In this 
regard, the Board has considered the examiner's 
acknowledgement of the Veteran's post-service smoking 
history.  [At the May 2006 VA examination, the Veteran 
reported having a 17-year history of smoking approximately 
one pack of cigarettes per day and having stopped many years 
ago.  Previously, at an October 2005 private follow-up 
treatment session, the Veteran had stated that he had stopped 
smoking approximately 25 years earlier.]  

Further, the Board acknowledges that applicable VA law and 
regulations prohibit service connection for any disability 
resulting from injury or disease attributable 
to the use of tobacco products for any claims filed on or 
after June 9, 1998.  38 U.S.C.A. § 1103 (West 2002); 38 
C.F.R. § 3.300 (2009).  [In the present appeal, the Veteran 
filed his claim for service connection for lung cancer in 
August 2005.]  

In any event, and of particular importance to the Board, is 
the fact that the claims folder contains competent evidence 
specifically associating the Veteran's lung cancer to his 
conceded in-service exposure to asbestos.  Resolving all 
reasonable doubt in favor of the Veteran, the Board concludes 
that service connection is, therefore, warranted for his 
squamous cell lung carcinoma, as a result of in-service 
exposure to asbestos.  38 U.S.C.A. § 5107(b); Gilbert v. 
Derwinski, 1 Vet. App. 49, 54 (1990).  





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ORDER

Service connection for squamous cell lung carcinoma, as a 
result of in-service exposure to asbestos, is granted.  



____________________________________________
K. A. Banfield
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs