Citation Nr: 0942601 Decision Date: 11/09/09 Archive Date: 11/17/09 DOCKET NO. 08-01 906 ) DATE ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lung disorder claimed as a residual of asbestos exposure. 2. Entitlement to service connection for claimed hypertension. ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1975. He also had service with the Naval Reserve, with verified and various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), until he was assigned to the retired Reserve, effective on March 1, 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the RO in March 2007. Of preliminary importance, the Veteran appealed both service connection claims in a notice of disagreement (NOD), received in April 2007. However, later that same month, he indicated that he wished to withdraw his claim of entitlement to service connection for hypertension. A statement of the case (SOC) was issued in November 2007, and a VA Form 9, Appeal to Board of Veterans' Appeals was received in January 2008, exclusively pertaining to the claim of service connection for asbestosis. Significantly, later that same month, the Veteran filed a new NOD for his hypertension claim, for which an SOC was issued in December 2008. Finally, a new VA Form 9, Appeal to Board of Veterans' Appeals was received in February 2009 reflecting the Veteran's intention to continue with his appeal for his hypertension claim. A Supplemental SOC (SSOC) was issued in March 2009, which continued the denial of service connection for both hypertension and for asbestosis. During the course of his appeal, the Veteran requested a hearing before a Decision Review Officer at the RO. A statement from the Veteran, dated in September 2007, indicated that he wished to cancel his hearing. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2009). The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue addressed in this decision was obtained. 2. The Veteran is shown as likely as not to have had extensive exposure exposed to asbestos during his long service on active duty and in the Naval Reserve. 3. The currently demonstrated of asbestosis is shown to be the likely result of his exposure to asbestos during active service. CONCLUSION OF LAW In according the Veteran the benefit of the doubt, his disability manifested by asbestosis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). In light of the favorable action taken herein below, further discussion of the notice and duty to assist provisions of the VCAA is not required. General Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a service connection for an injury, a veteran is required to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the a veteran is required to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Specific Legal Criteria 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. VB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (September 29, 2006). The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze a veteran's claim to 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). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR IV.ii.2.C.9.a. Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire proofing materials, and thermal insulation. Id. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR IV.ii.2.C.9.f. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. M21- 1MR IV.ii.2.C.9.b. The asbestos advisory information contained in the Manual M21-1MR indicates that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at the late stages; and pulmonary function impairment and cor pulmonale which can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the 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. M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C. The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). M21-1MR IV.ii.2.C.9.d. 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. M21-1 MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). While this section of the M21 does not create any presumptions of service connection based upon exposure to asbestos, it does provide guidelines to inform and adjudicators with respect to asbestos exposure and commonly resulting disabilities. Dyment v. West, 13 Vet. App. 141 (1999). Analysis Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his pulmonary asbestosis is the result of the daily exposure to and handling of asbestos aboard the USS Independence while serving as an electrical and mechanical equipment repairman. Of preliminary importance, as per the findings of the National Personnel Records Center (NPRC) addressed in a February 2007 memorandum, records of asbestos exposure in service are unavailable for review. The Board notes that complete service records are needed to determine whether the Veteran was exposed to asbestos in service. Significantly, where service records have been lost or destroyed, VA has a "heightened" duty to more carefully explain the reasons and bases of its decision and to seriously consider applying the benefit-of-the-doubt doctrine. See, Russo v. Brown, 9 Vet. App. 46, 51 (1996); see Cromer v. Nicholson, 19 Vet. App. 215, 217-8 (2005). In extending the benefit of the doubt to the Veteran, described in greater detail hereinbelow, the Board finds that service connection for asbestosis is warranted given the circumstances of this case. In this regard, the Veteran reports serving as an electrical and mechanical equipment repairman aboard the USS Independence from June 1972 to June 1975. His DD Form 214, Certificate of Release or Discharge from Active Duty, confirms his military occupational specialty (MOS). Further, a December 1974 service treatment record confirms that the Veteran received medical treatment aboard the USS Independence. Service treatment records also indicate that he had service at the Naval Air Station (NAS) Oceana during his naval reserve duty. Applying the provisions of the aforementioned VBA Adjudication Procedure Manual M21-1MR, the Board notes that the Veteran's in-service MOS as an electrical and mechanical equipment repairman in the US Navy is likely an occupation that is associated with asbestos exposure. Additionally, it is conceded that, at some time during his regular duty service, he served aboard the USS Independence. Bearing this in mind, it is clear that some exposure must be conceded. Moreover, as the NPRC has been unable to obtain any records of asbestos exposure in service, and in consideration of the Veteran's MOS in service while serving aboard the USS Independence, the Board finds that a determination that the Veteran was as likely as not exposed to asbestos as reported. A service treatment record, dated in April 1976, reflects treatment for shortness of breath at night. Service treatments are otherwise negative for diagnoses of or treatment for any lung disorders. A July 2001 private radiology report shows a diagnosis of bilateral interstitial fibrotic changes consistent with asbestosis. Reports of private pulmonologists, dated in October 2001, October 2007 and November 2007, reveal diagnoses of pulmonary asbestosis and early pulmonary fibrosis based on occupational exposure to asbestos. The October 2001 and October 2007 private treatment records reflect a post-service employment history of working at the Norfolk Naval Shipyard in Portsmouth, Virginia. The private physicians noted that throughout his career as a laborer and electrician, the Veteran worked all over yards and docks and onboard ships in close proximity to insulators, welders and other tradesmen who mixed and used asbestos materials on a regular basis. The Veteran reported that he sometimes handled asbestos directly in the course of his duties, and that the environment was usually dusty. The October 2007 physician noted that in contrast to his active duty service, the Veteran was employed post-service as a supply technician, and was involved in logistics and less so in repair and installation. Further, according to the Veteran, the environment in the shipyard post-service was much less dusty than onboard the ship. Significantly, in the November 2007 report, the private physician opined that it was most probable from review of the history that the Veteran's exposure to asbestos occurred while serving in the US Navy on the USS Independence. The physician noted that the Veteran's post-service employment history did not expose him to asbestos to any appreciable degree on a daily basis. The physician determined that the diagnosed asbestosis should be considered as having its origin during the time the Veteran was still on active duty in the US Navy. In contrast, in conjunction with the current appeal, the Veteran was accorded a VA examination in March 2007. The examiner reported that the Veteran served in the Navy, and that his MOS indicates probable exposure to asbestos, but noted that the Veteran's post-service occupation from 1978 to 2001 also indicated likely asbestos exposure. The Chest views revealed negative findings, spirometry test results indicated no obstructive lung defect, and electrocardiogram (EKG) results showed a 1st degree AV block of the rightward axis, but were otherwise intervals normal. However, the Veteran was diagnosed with pulmonary asbestosis per records. Here, when asked to provide a nexus opinion regarding the likely etiology of the Veteran's asbestosis, the examiner indicated that the issue could not be resolved without resorting to mere speculation. The examiner opined that, while the Veteran may have been exposed to asbestos, there was no data indicating a current lung problem, and it was not until private treatment records were reviewed from 2001 that pulmonary asbestosis was diagnosed. Further, the Veteran appeared to have significant long-term exposure in his civilian occupation, therefore it was impossible to determine which exposure caused the disorder. The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Moreover, 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 adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Finally, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has carefully evaluated the conflicting evidence and, ultimately, places greater weight on the opinions of the various private physicians discussed above. The Board acknowledges that the March 2007 VA examination report reflects that the Veteran did not present with lung problems on radiological, spirometric and EKG testing; however, as acknowledged by the VA examiner, the Veteran's entire private medical record indicates otherwise. Further, the private practitioners' reports reflect more detailed and specific accounts of the Veteran's post-service employment history, and they collectively have had the benefit of treating the Veteran for the past 8 years. Further, given the Veteran's likely exposure to asbestos during service, their conclusions that the Veteran's pulmonary asbestosis had its origin in service are plausible. Therefore, the Board finds that there is satisfactory nexus evidence that attributes the Veteran's service-related asbestos exposure to his current disability. Moreover, the Board finds the Veteran has been consistent in reporting his employment history to his private physicians and admitted to some post-service asbestos exposure. As the Veteran is competent to provide this history, his reporting is deemed to be a credible lay assertion. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). See also Robinson v. Shinseki, No. 2008-7096 (Fed. Cir. March 3, 2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). Therefore, it is the Board's determination that the evidence of record is in relative equipoise in showing that the Veteran currently has asbestosis that as likely as not is due to the exposure to asbestos initiated during his Naval service. Consequently, by extending the benefit of the doubt to the Veteran, the Board concludes that he was exposed to asbestos during his active military service and he currently has asbestosis that has been linked to his military service. Hence, service connection for asbestosis is warranted. See 38 C.F.R. §§ 3.102, 3.303(d); Gilbert, supra. Accordingly, for these reasons, the Board finds that service connection for asbestosis is warranted. ORDER Service connection for asbestosis is granted. REMAND The Veteran asserts that service connection for hypertension is warranted. Review of the claims file reveals that further development of this matter is warranted. As noted, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be established for disease diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, where a Veteran served continuously for ninety (90) days or more during a period of war and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2009). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm, or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater, with a diastolic blood pressure of less than 90mm. Id. Significantly, as discussed, while there is evidence of in- service treatment for hypertension during the Veteran's reserve service, and while there is a current diagnosis of hypertension, there is, as yet, no medical opinion of record that adequately addresses the nature and etiology of the Veteran's hypertension and its possible relationship to active duty service. Notably, service treatment records, dated from October 1971 to May 1989 reflect findings of hypertension. However, service treatment records are negative for diagnosis of or treatment for hypertension or high blood pressure during the Veteran's regular active duty service. A March 2007 VA respiratory examination report, reflects an unrelated diagnosis of hypertension. However, the examiner failed to provide any nexus opinion addressing the possible relationship between the Veteran's current hypertension and service. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). In light of the fact that service treatment record indicate findings of hypertension and high blood pressure during the Veteran's reserve service, and that he has a current diagnosis of hypertension, the Board finds that the Veteran should be afforded a VA examination to determine whether the current hypertension is related to his active duty service. Under 38 C.F.R. § 3.159(c)(4), in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159 (c)(4). Additionally, for the sake of determining whether or not the presumptions provided in 38 C.F.R. §§ 3.307, 3.309, a medical opinion on the question of whether the hypertension had its clinical onset within one year of separation from active duty service is also needed. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, shall result in denial of the claim. See 38 C.F.R. § 3.655 (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran to request that he furnish the names, addresses, and dates of treatment for all medical providers, VA and non-VA, from whom he has received treatment for his hypertension not already of record. After the Veteran has signed any necessary releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be associated with the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO should schedule the Veteran for a VA examination with an appropriate specialist to addresses the nature and etiology of any hypertension. The examiner should offer an opinion, consistent with sound medical principles, whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability had its onset in or within one year of service, or is otherwise related to the Veteran's service. Prior to examining the Veteran, the examiner must review the entire claims file, including a complete copy of this remand. All necessary diagnostic testing should be performed, and all clinical findings should be reported in detail. Finally, the examiner should set forth in the examination report all examination findings and the complete rationale for any conclusions reached. 3. The Veteran must be given adequate notice of the dates and places of any requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. Once again, the Veteran is to be advised that failure to report for the scheduled VA examination without good cause shown may have adverse effects on his claim. 4. Following completion of all indicated development, the RO should readjudicate the remaining claim in light of all the evidence of record. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he should be furnished an SSOC and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs