Citation Nr: 0941846 Decision Date: 11/03/09 Archive Date: 11/09/09 DOCKET NO. 03-25 218A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an asbestos-related disability, to include lung cancer. 2. Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Independent Department of Veterans Affairs Claims Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the first decision, issued in June 2003, the RO denied the Veteran's claims for service connection for residuals of asbestos exposure and for posttraumatic stress disorder (PTSD). In November 2005, the Board remanded the case with instruction that the Veteran be scheduled for a Board hearing. In April 2006, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's central office in Washington, DC. Then, in March 2006 decision, the Board affirmed the RO's decision and continued to deny the Veteran's claims for service connection for an asbestos-related disability, to include lung cancer, as well as PTSD. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2008 memorandum decision, the Court vacated the Board's decision to the extent it had denied his claim for service connection for an asbestos-related disability, to include lung cancer. The Court, however, affirmed the portion of the Board's decision that had denied his claim for service connection for PTSD. The Court entered judgment in October 2008 and returned the case to the Board for compliance with the directives specified. Therefore, the only issue remaining on appeal from the June 2003 rating decision is service connection for an asbestos-related disability, to include lung cancer. In an unrelated matter, the Veteran also appealed a February 2009 rating decision which found that new and material evidence had not been submitted to reopen his claim for service connection for a psychiatric disorder. But since the Veteran requested that he be scheduled for a travel Board hearing, which has not been scheduled, this issue is addressed in the REMAND portion of the decision below and is remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT It is just as likely as not that the Veteran developed asbestosis and lung cancer due to asbestos exposure in service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's asbestosis and lung cancer were incurred in service. 38 U.S.C.A §§ 1110, 1131, 5107 (West Supp. 2005); 38 C.F.R. §§ 3.102, 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims that he developed an asbestos-related disability, to include lung cancer, as a result of asbestos exposure while aboard the USS Ault after it had collided with the USS Haynsworth. For the reasons set forth below, the Board will resolve all reasonable doubt in the Veteran's favor and grant service connection for an asbestos-related disability, to include lung cancer. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, service connection requires: (1) medical evidence of a 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). Also, 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). There is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, 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 VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Additionally, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for an asbestos-related disability, to include lung cancer, under these administrative protocols using the following criteria. 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. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions 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. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21- 1, Part VI, 7.21. In this case, the Veteran's service treatment records make no reference to any respiratory problems during his entire period of active duty. When examined in December 1955, for the purpose of release from active duty, the Veteran's lungs and chest were evaluated as normal. See Struck v. Brown, 9 Vet. App. 145 (1996). But the absence of respiratory problems in service is not significant in this case, since 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). Indeed, the first evidence of an asbestos-related disability is an October 2001 report from the Ohio State University Medical Center. This report includes the Veteran's history that, during his period of active duty, he had served aboard a ship where the pipes were insulated with asbestos. He informed the physician of the collision between the USS Ault and the USS Haynsworth. He denied difficulty breathing until 1994 when spots on his lungs were noted on a routine X-ray of the lungs - although no such records are available. The physician's initial impression was that the Veteran suffered from symptoms of worsening airway disease probably secondary to chronic obstructive pulmonary disease (COPD) along with asbestosis. Following a CT scan of the chest, which showed bilateral calcified pleural plaques consistent with asbestos, the physician concluded that "the veteran has definite asbestosis, which is also exacerbated by emphysema due to smoking." An April 2002 X-rays report also revealed pleural thickening along the right lateral hemithorax, but no pleural calcification. The radiologist indicated that the pleural thickening could be the result of asbestos exposure. Based on the lack of pleural calcification, however, a VA examiner in April 2003 concluded that actual pleural disease was not present. A February 2004 report from the Wake Forest University (WFU) Baptist Medical Center notes that the Veteran's multiple bilateral calcified pleural plaques are consistent with a history of asbestos exposure. A January 2004 new patient evaluation report includes the Veteran's history of asbestos exposure in a fire room of a destroyer while in the Navy. After a physical examination, the examiner assessed that the Veteran had a history of asbestos exposure with pleural plaques, shortness of breath, and COPD. The examiner's assessment was that the Veteran was clearly exposed to asbestos and there is adequate lag time for the development of "asbestos." The examiner also stated that it is unclear on his plain films, but he does have markings consistent with asbestos (perhaps 1/0). The examiner also stated that the Veteran will have abnormal pulmonary function tests based on his COPD. In the January 23, 2004 radiology report, the reviewing radiologist stated that the Veteran has a possible history of asbestos exposure. The radiology report also includes a notation which reads "Indication: Seventy seven year old man with asbestosis exposure." The Veteran underwent a CT scan of the chest which showed evidence of multiple bilateral calcified pleural plaques, described as "consistent with possible history of asbestos exposure." The Veteran, unfortunately, was also diagnosed with lung cancer in 2004. Records from WFU Baptist Medical Center show that a mass was identified in his right upper lobe in February 2004. A CT scan also showed multiple bilateral calcified pleural plaques, consistent with a possible history of asbestos exposure. The Veteran's recorded history included asbestos exposure in service while working in a boiler room of a naval destroyer, asbestos exposure after service while working on brake shoes, and a 45-year history of smoking one pack per day from age 15 until 1988. He subsequently underwent resection of the right upper lobe mass which proved to be stage I, non-small cell carcinoma. In an October 2004 report, R.C, Jr., M.D., of WFU Baptist Medical Center, noted the Veteran's extensive smoking history, as well as his history of asbestos exposure during his Naval career aboard the USS Ault. In addition to the records showing lung cancer, Dr. R.C. also reviewed the January 2004 chest X-rays which showed pleural thickening along the right lateral chest wall as well as calcified thickening along the right base, which he believed were consistent with asbestos-related pleural disease. Dr. R.C. then stated, "I think it is more likely than not the asbestos exposure he received during his time aboard the USS AULT during his naval career contributed to the pleural changes as well as the develop[ment]of lung cancer." In October 2004, the Veteran underwent a VA compensation examination by a nurse practitioner to determine whether he has an asbestos-related disease (i.e., asbestosis) and whether his lung cancer is related to asbestos exposure. The nurse practitioner indicated that she had reviewed the claims file, although she made no reference to Dr. R.C.'s report. Based on her review, she indicated that the radiographs showing multiple calcified pleural plaques are consistent with asbestos exposure but do not confirm an asbestos-related disease. She explained that she had discussed the case with two physicians, both of whom agreed that there was evidence of asbestos exposure but not disease. With respect to the Veteran's lung cancer, the nurse practitioner indicated that non-small cell carcinoma, which includes squamous cell, is the most common type of lung cancer and "the majority of these cancers are directly linked to cigarette smoking." She then indicated that "Mesothelioma is a rare tumor of the lining of the lung that is often attributed to asbestos exposure and represents 5% of lung cancer cases" - which the Veteran does not have. Thus, the nurse practitioner opined that "it is least likely that this veteran's current lung cancer is associated with his asbestos exposure and more likely secondary to his tobacco use." In a June 2005 letter, T.O., M.D., another physician from WFU Baptist Medical Center, stated, "[a]s you know the etiology of non-small cell carcinoma of the lung can be associated with many different things, one of which may be asbestos exposure." In light of these findings, the Board believes that service connection is warranted for an asbestos-related disability involving asbestosis as well as lung cancer, since the evidence shows that these disabilities are related to asbestos exposure in service. With respect to the element of a current disability, the Veteran appears to have two separate respiratory disabilities: an asbestos-related disability involving asbestosis and lung cancer. Lung cancer has been confirmed by biopsy. However, there is some question as to whether the Veteran actually has an asbestos- related disability involving asbestosis. One the one hand, the two VA examiners indicated that the radiographs showed calcified pleural plaques, which confirm asbestos exposure but not the presence of an actual asbestos- related disease. In other words, the examiners believe that the calcified plaques represent mere findings and not an actual disability for VA compensation purposes. Sanchez- Benitez v. West, 13 Vet. App. 282, 287 (2000) (a mere symptom, such as pain, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim). On the other hand, though, the October 2001 report from the Ohio State Medical Center lists a diagnosis of definite asbestosis, while Dr. R.C., Jr., indicates in his October 2004 report that X-rays were indeed consistent with asbestos- related pleural disease. In light of these two opinions, the issue of whether the Veteran has an asbestos-related disability (asbestosis) is in relative equipoise, i.e., about evenly balanced for and against his claim. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that he has an asbestos-related disability involving asbestosis in addition to lung cancer. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue). The evidence also shows that the Veteran's asbestosis and lung cancer are both related to asbestos exposure. All who have commented, including the two VA examiners, agree that the radiographic evidence of multiple calcified pleural plaques in both lungs confirms a history of asbestos exposure. Indeed, no one disagrees that the Veteran's asbestosis is related to asbestos exposure. Concerning the Veteran's lung cancer, however, the October 2004 VA examination report includes a medical opinion that this cancer is secondary to his history of smoking. In contrast, Dr. R.C, Jr., disagreed and attributed the Veteran's lung cancer to asbestos exposure. It also appears that both opinions were based on a review of the pertinent medical history, including X-rays. In other words, both the VA examiner and Dr. R.C., Jr., applied valid medical principles to the facts of this case in rendering their opinions. See Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008). Thus, since there is one opinion for and one opinion against this aspect of the claim, the Board will resolve all reasonable doubt in the Veteran's favor and find that his lung cancer is also due to asbestos exposure. Based on the foregoing, the evidence shows that the Veteran's asbestosis and lung cancer are related to asbestos exposure. Therefore, the only remaining issue is whether the Veteran's asbestosis and lung cancer are secondary to in-service asbestos exposure versus post-service asbestos exposure, keeping in mind that the Veteran has a history of asbestos exposure after service since he had worked as a mechanic on brake shoes. See M21-1, Part VI, 7.21 (occupations involving asbestos exposure include manufacture and servicing of friction products such as clutch facings and brake linings). The Veteran claims that his in-service asbestos exposure occurred after the USS Ault collided with the USS Haynsworth. In support of his claim, the Veteran submitted pictures of the damaged ship, a ship damage report, and a July 2003 statement from a fellow serviceman, who indicated that he too was aboard the USS Ault at the time of the accident and that they had been exposed to asbestos every day. In light of this evidence, the Board accepts the Veteran's statements concerning his exposure to asbetos in service. Buchanan v. Nicholson, 451 F3d. 1331, 1336 (Fed. Cir. 2006) (observing that "38 C.F.R. § 3.303(a) provides that each disabling condition for which a Veteran seeks service connection, 'must be considered on the basis of . . . all pertinent medical and lay evidence'"). The Board thus finds that the Veteran was exposed to asbestos both during and after service. In determining whether his in-service asbestos exposure contributed to his asbestosis and lung cancer, the Board again turns to Dr. R.C.'s opinion which states, "I think it is more likely than not the asbestos exposure he received during his time aboard the USS AULT during his naval career contributed to the pleural changes as well as the developing of lung cancer." See Nieves, supra. This opinion is consistent with VA's M21-1, which states that an asbestos-related disease can develop from brief exposure to asbestos. In short, the Board finds that both the Veteran's asbestosis and lung cancer are secondary to asbestos exposure in service. For these reasons and bases, the Board will resolve all reasonable doubt in the Veteran's favor and grant service connection for an asbestos-related disability involving asbestosis and lung cancer. In light of the favorable outcome, there is no need to discuss whether VA has satisfied its duties to notify and assist the Veteran with his claim pursuant to the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5100 et seq. See also Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Even were the Board to assume for the sake of argument there has not been VCAA compliance, since the Veteran is receiving the requested benefit, any VCAA deficiency would constitute no more than harmless error. 38 C.F.R. § 20.1102. ORDER Service connection for asbestosis and lung cancer is granted. REMAND In a February 2009 rating decision, the RO found that new and material evidence had not been submitted to reopen his claim for service connection for a psychiatric disorder. In his June 2009 Substantive Appeal (VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board. Although the RO acknowledged the Veteran's hearing request in a July 2009 letter, his case was transferred to the Board for appellate review before a hearing could be scheduled. See 38 C.F.R. § 20.700(a) (2008). Accordingly, this case is remanded for the following action: Schedule the Veteran for a Video Conference Board hearing at the earliest opportunity (or a videoconference hearing if he elects this alternative). Notify him of the date, time, and location of the hearing, and put a copy of this letter in his claims file. Once he has been afforded the requested hearing, or in the event that he withdraws his hearing request or fails to appear, the case should be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs