Citation Nr: 1041316 Decision Date: 11/03/10 Archive Date: 11/12/10 DOCKET NO. 08-21 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.S.P. ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran had active service from November 1965 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating determination of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO), for the Jackson, Mississippi RO. In August 2009, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. The issue of service connection for a heart disorder as due to asbestos exposure has been raised by the record based on testimony presented at the Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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). FINDINGS OF FACT 1. New and material evidence was received prior to the expiration of the appeal period, so the evidence is considered as having been filed in connection with the November 2004 claim which was pending at the beginning of the appeal period. 2. The Veteran was exposed to asbestos while on active duty. 3. Competent and credible medical evidence links the Veteran's current diagnosis of asbestosis with pleural plaques to his exposure to asbestos while on active duty. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for asbestosis with pleural plaques are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural Issues The Board observes that the Veteran filed his initial claim for service connection for asbestosis in November 2004. The RO denied the claim in a February 2006 rating decision. The Veteran was provided notice of the denial and his right to appeal in a February 2006 letter. Thereafter, in September 2006, the Veteran submitted additional evidence he indicated he wanted the RO to consider in connection with his claim. The new evidence included an August 2006 computed tomography scan, which the Board finds material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). As new and material evidence was received prior to the expiration of the appeal period, the evidence is considered as having been filed in connection with the November 2004 claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2010). Veterans Claims Assistance Act of 2000 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 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Given the favorable disposition of the claim for service connection for asbestosis, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. 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. M21-1, Part VI, para 7.21(a). The applicable section of 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). M21-1, Part VI, para. 7.21(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that service connection is warranted for asbestosis because it is related to exposure to asbestos while serving on active duty. In this case, service personnel records show that the Veteran's military occupational specialty was Heating Systems Specialist. They also show that he spent most of his time on active duty working at Forbes Air Force Base. The Veteran submitted an Internet article which reflects that Forbes Air Force Base has been identified as a site where workers were subject to high levels of asbestos exposure. During his August 2009 Board hearing, the Veteran testified that while on active duty, he was exposed to asbestos in the course of his work, and he was not given protective equipment. The Veteran's testimony concerning exposure to asbestos while on active duty is generally consistent with his service personnel records and is thus deemed consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that he was exposed to asbestos during active service. Turning to the question of whether the Veteran has a current diagnosis of asbestosis related to his in-service asbestos exposure, the Board observes that conflicting medical evidence is of record. A July 1990 private report on x-rays of the chest noted an impression of mild interstitial pulmonary fibrosis. In September 2001, Dr. R.M. wrote that the Veteran had severe pulmonary fibrosis and symptoms of emphysema with most likely underlying asbestosis. Dr. M. noted in another September 2001 outpatient record that an X-ray showed interstitial fibrosis with probable asbestosis poisoning. C.N.B., M.D., opined in April 2005 that the Veteran's current asbestos lung disease was most likely due to exposure to asbestos while he was in the military. He indicated that he had reviewed the Veteran's medical records, and he cited the September 2001 reports from Dr. M. Dr. B. explained that exposure to asbestos is known to cause interstitial lung disease, and the Veteran's record did not contain another medically reasonable cause for the Veteran's documented interstitial fibrosis. He further explained that the time lag between the Veteran's exposure to asbestos while on active duty and his formal diagnosis of asbestosis is consistent with the known literature. On VA examination in February 2006, an examiner reviewed the Veteran's military and medical history. It was noted that X-rays provided no radiographic evidence for asbestos exposure. A pulmonary function test was not completed due to an equipment malfunction. A diagnosis was not established for the Veteran's complaints of shortness of breath. The examiner explained that the Veteran moved to another state before he could present sufficient structural evidence for a diagnosis of asbestosis. Regarding the evidence from Dr. M. and Dr. B., the examiner remarked that their statements appeared speculative and served neither to establish nor to reject a diagnosis of asbestosis. Dr. B. furnished an addendum to his opinion in November 2006. He indicated that a computed tomography scan revealed a second soft tissue density nodule in the lateral aspect of the Veteran's left lower lobe. He remarked that the Veteran also had pleural thickening and increased interstitial marking, all of which was consistent with previous film findings and asbestos exposure. He stated that it was still his opinion that the Veteran likely had asbestosis due to exposure to asbestos while on active duty. A different VA examiner reviewed the Veteran's claims file in December 2006 and remarked that the VA treatment records did not contain a diagnosis of asbestosis. The examiner had the Veteran undergo a repeat computed tomography scan, which yielded evidence of a number of small nodules in both lungs. The examiner opined that there was no evidence of asbestosis. In November 2007, D.M.D., M.D., remarked that the Veteran was an active smoker, had chronic obstructive pulmonary disease (COPD), emphysema, and significant dyspnea and bronchitic problems. He opined that the Veteran's illnesses were profoundly contributed to by his prior work on active duty as a heating specialist with exposure to asbestos. He indicated that the Veteran had asbestosis with COPD. On VA examination in May 2008, the examiner reviewed the Veteran's service and post-service treatment records. After examining the Veteran, the examiner opined that the Veteran had COPD, less likely as not caused by or a result of asbestosis. The examiner remarked that computed tomology did not indicate asbestosis changes, and the lung nodules were less likely as not related to asbestosis. Dr. D. remarked in an October 2008 letter that he had been treating the Veteran for lung disease. He said that computed tomography completed in October 2008 revealed pleural thickening around both lower lungs posteriorly consistent with asbestos exposure. He stated that there were also diffuse increased markings which could represent emphysema but may also represent asbestosis with secondary emphysema. He also opined that the Veteran had COPD which made the asbestosis harder to identify. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 , 173(1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). In this case, the Board finds that the medical opinions of record regarding the Veteran's claimed asbestosis are in relative equipoise. The VA examiners have all opined that there is no evidence of asbestosis, while the private examiners have all opined that the evidence shows that the Veteran has asbestosis as a result of his exposure to asbestos while on active duty. Ultimately, the Board finds the opinion of the private medical examiners persuasive. Each of the private examiners accounted for the pleural thickening and nodes apparent through repeated computed tomography scans. Dr. D. had been treating the Veteran for his pulmonary problems for an extended period and was thoroughly familiar with his condition. The Board finds very significant that Dr. D. indicated that the Veteran's "COPD [makes] the asbestosis harder to identify" which may account for the difference in opinion among the VA and private examiners as to the Veteran's diagnosis. The Board observes that there were findings of interstitial pulmonary fibrosis as far back as July 1990. As a final point, the Board notes that the Veteran appears to have had some post-service exposure to asbestos through his work as an air conditioning mechanic. However, each of the private medical examiners specifically attributed the Veteran's symptoms to his in-service asbestos exposure. Resolving all reasonable doubt in the Veteran's favor, the record shows that the Veteran has current asbestosis with pleural plaques as a result of his in-service exposure to asbestos. Therefore, service connection for asbestosis with pleural plaques is warranted. ORDER Service connection for asbestosis with pleural plaques is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs