Citation Nr: 1032004 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-31 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an asbestos related respiratory disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied service connection for asbestosis. The Veteran's claim is that he has current lung disabilities which are the result of asbestos exposure during active service. The rating decision and the Statement of the Case (SOC) referred to the issue as "asbestosis." Subsequently, a May 2010 Supplemental Statement of the Case (SSOC) phrased the issue as being a respiratory disorder, to include as the residual of asbestos exposure. The Board has recharacterized the issue in these more general terms to more accurately reflect the claim made by the Veteran. In June 2008, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. The case was previously before the Board in August 2008 and May 2009, when it was remanded for examination of the veteran and medical opinions. The Board now proceeds with its review of the appeal. 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). FINDINGS OF FACT 1. The Veteran's service treatment records and service personnel records are reported to have been destroyed by fire. 2. Available service department records establish that the Veteran served in the Army Transportation Corps. His assertions of being a tug boat crewman are consistent with the evidence contained in his separation papers, Form DD 214. 3. The Veteran had exposure to asbestos during active service. 4. The Veteran had a long history of exposure to asbestos during post-service employment. 5. The medical evidence of record establishes a diagnosis of asbestos related pleural disease which is supported by computed tomography (CT) examinations, and pulmonary function tests (PFTs). CONCLUSION OF LAW The criteria for service connection for an asbestos related respiratory disability are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's claim for service connection for a lung disability has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 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). When a chronic disease identity is established in service, then a showing of continuity after discharge is not required. Continuity of symptomatology is required only where the condition noted during service (or in a presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection may also 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). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran claims entitlement to service connection for a respiratory disability. He specifically claims that he was exposed to asbestos during active service and that this is the cause of his current respiratory disability. There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos- related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Rather, VA Adjudication Procedure Manual, in electronic format, M21-1MR, contains guidelines for considering compensation claims based on exposure to asbestos. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. Id. 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. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Neither "MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. VA has tried on multiple occasions to obtain the Veteran's service treatment records and service personnel records. In each instance, VA was informed that the records had been destroyed by fire and are unavailable. VA has a heightened obligation to search for alternate medical records when service medical records are not available and must also provide an explanation to the veteran regarding VA's inability to obtain his service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Veteran claims that he served as a tug boat engineer during active duty. His discharge papers, DD 214, establish that the Veteran served in the Army Transportation Corps in Fort Eustis, Virginia, where he had a course as an H/C Crewman. The Board finds that his testimony and assertions of being a tug boat crewman are credible and consistent with the evidence on his DD 214. Accordingly, the Board finds as fact that the Veteran did serve aboard tug boats during active duty and that he was exposed to asbestos during active service. Private medical records dated in 1992 reveal a diagnosis of "asbestos related pleural disease." The diagnosis was supported a chest x-ray which revealed pleural thickening and a mild increase in interstitial markings bilaterally. PFT results indicated mild to moderate small airway disease. The history of asbestos exposure referred to in making the diagnosis was an 18 year history of post-service employment from 1960 to 1978. An April 1995 private CT report indicated a history of asbestosis and left pulmonary nodules. The Impression was a "small subpleural nodule with minimal pleural thickening in the left hemithorax." A private medical examination report dated August 1998 also indicated that the Veteran had "unequivocal evidence of asbestos induced pleural disease." A private PFT was conducted in August 2000. The test results were generally "normal." However the impression also indicated that the "flow rates are super normal suggesting the possibility of early interstitial disease as manifested by increased recoil force." In February 2001, a VA Compensation and Pension examination of the Veteran was conducted. He reported a history of asbestos exposure during service from 1952 to 1954 as well as a post- service exposure history from 1960 to 1978. Chest x-ray revealed a density within the lower left chest felt to represent a pleural plaque. PFT results revealed "moderate restrictive lung defect." The diagnosis was "restrictive lung disease, history of asbestos exposure." CT examination was recommended. In September 2001 VA CT examination of the Veteran's chest was conducted and revealed parenchymal lesion of both lungs and right apical fibrotic changes. The radiologist specifically indicated to "correlate clinically for asbestos exposure." Pleural plaques were again identified on a September 2007 chest x-ray examination report. In September 2008, the most recent VA Compensation and Pension examination of the Veteran was conducted. The examiner reviewed prior test results including an October 2008 CT examination report which showed the presence of asbestos related pleural plaques without interstitial fibrosis. At this examination, PFT results were apparently normal and the examiner's diagnosis was "no evidence of asbestosis at this time. When asked to clarify his diagnosis and opinion, the examiner restated in a September 2009 note that the Veteran had no active lung disease. A February 2009 VA PFT report also indicated normal results Exposure to asbestos can result in a number of disabilities, the most common of which is interstitial pulmonary fibrosis, asbestosis. Other disabilities include: pleural effusions and fibrosis; pleural plaques; mesotheliomas of the pleura and peritoneum; and, cancers of the lung, gastrointestinal tract, larynx, pharynx and urogenital system. The findings of the most recent VA Compensation and Pension examination indicate no active lung disease. However, the private medical evidence dated prior to 2000 clearly reveals the presence of asbestos related pleural disease which is supported by chest x-rays, chest CTs, and PFTs showing some restrictive defect. The radiology evidence of record clearly establishes the presence of pleural plaques. The 2001 VA examination also indicates a diagnosis of restrictive lung disease which is related to the Veteran's total history of asbestos exposure both during and after service. Accordingly, service connection for an asbestos related respiratory disability is warranted. ORDER Service connection for an asbestos related respiratory disability is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs