Citation Nr: 1014272 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 04-03 102A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to an initial rating in excess of 20 percent for osteoarthritis of the right ankle. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1955 to September 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claim. When this claim was originally before the Board in April 2009, it was remanded for further development. The issue of entitlement to an initial rating in excess of 20 percent for osteoarthritis of the right ankle 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. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during military service. 2. The evidence of record shows that it is at least as likely as not that the Veteran's currently diagnosed asbestosis is related to exposure to asbestos during military service. CONCLUSION OF LAW Service connection for asbestosis is warranted. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). As the Veteran's claim for service connection is granted, any failure in notifying or assisting him is harmless error. The Board notes that, with asbestos-related claims, it must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). With these claims, the RO 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, keeping in mind the latency and exposure information provided in M21-1MR, § VI.ii.1.H.29.b. In this case, the record shows that the RO complied with these procedures. Nevertheless, any deficiency in the development of the Veteran's claim would not be prejudicial as the Board herein grants service connection for asbestosis, which represents a complete grant of the benefit sought on appeal. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease 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). In making this determination, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (now included in VA Adjudication Procedure Manual, M21-1MR, §§ IV.ii.1.H.29 and IV.ii.2.C.8.d (Sept. 29, 2006)). Additionally, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. Of note, the VA guidelines indicate that the latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, § VI.ii.1.H.29.a. An asbestos-related disease can also develop from brief or indirect exposure to asbestos. Id. At the outset, the Board notes that the Veteran's service treatment records were formally found to be unavailable in March of 2003, following various efforts to obtain such records were made in June 2002, July 2002, and March 2003. The Veteran asserts that service connection for asbestosis is warranted because he developed this condition as a result of exposure to asbestos in service. The Veteran has reported that he was exposed to asbestos in tanks, where a firewall between the engine and turret contained asbestos; while working on motor pool unit vehicles, including working on the brakes, turrets, and gaskets; in army barracks in Germany, which were lined with asbestos; and onboard an Army transport ship on his return from Germany, the U.S.N.S. Buckner. In support of this contention, the Veteran has submitted a newspaper article titled, "High Court Sides with Workers in Asbestos Case," which indicates that, in the 1970s and before, asbestos was used for many products, including in fireproofing materials and insulation. He has also submitted an article titled, "Asbestos in Brakes: Exposure and Risk of Disease," which indicates that people that service brakes, most of which contain asbestos, have an increased likelihood of developing mesothelioma. Additionally, he has submitted the maintenance manual for a series of military vehicles, along with photocopies of some of the military vehicles he worked on during service. Finally, he has submitted sections of the Occupational Safety and Health Administration (OSHA) regulations that pertain to exposure to asbestos. A review of the record reveals that the Veteran served in the U.S. Army from September 1955 to September 1958, including over a year of foreign service, which he has reported was in Germany. His military occupational specialty was as an armor crewman and his in-service training courses included turret maintenance. The Board finds no reason to doubt the credibility of the Veteran in reporting his exposure to asbestos during service. His records are internally consistent, and it is facially plausible that he had such exposure while in service, especially given his duty assignment as an armor crewman, his training in turret maintenance, and his service abroad, which would have required travel on an Army transport ship. The Veteran is also competent to report his in-service duties and experiences. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses, that which is heard, felt, seen, smelled or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge whether he worked on tanks, stayed in barracks lined with asbestos, and traveled on the U.S.N.S. Buckner. Given the circumstances of the Veteran's service and his reported in-service exposure, which the Board finds to be credible and competent, the Board concedes that the Veteran was exposed to asbestos during service. Having conceded exposure in service to asbestos, the question remains whether the Veteran's current lung disorder, diagnosed as asbestosis, is related to such exposure. In this regard, the Board notes that the Veteran was first diagnosed with asbestosis in September 2000 by his private doctor, Dr. Robert Katz. Additionally, in July 2001, the Veteran underwent a pulmonary medical consultation with Dr. Robert J. Mezey. At the outset of the consultation, Dr. Mezey noted that the Veteran had significant occupational exposure and that the latency period for his asbestos-related disease was over 15 years. Based on his physical examination, medical history, available medical records, pulmonary function testing, and interpretation of chest x-rays, Dr. Mezey diagnosed the Veteran with asbestosis and asbestos-related pleural disease. In this regard, Dr. Mezey reported that the Veteran's pulmonary function tests demonstrated reduced vital capacity and restrictive patterns; his chest x-rays showed small irregular opacities; and his chest x-rays showed pleural plaques and pleural thickening. Similarly, in March 2003, Dr. John F. Peters diagnosed the Veteran with asbestosis based on his clinical findings, chest radiography, and pulmonary function testing. Dr. Peters reported that this diagnosis was appropriate given the Veteran's exposure to asbestos. Subsequently, in June 2008, Dr. Peters reported that the Veteran has asbestosis and that this condition would not resolve. Additionally, in December 2008, the Veteran's primary care doctor, Dr. Luis A. Urrutia, reported that he had treated the Veteran for the past ten years, and that in this time, the Veteran had suffered from asbestosis. In this regard, Dr. Urrutia reported that previous chest x-rays and pulmonary function tests supported the diagnosis of asbestosis. Dr. Urrutia went on to report that, upon reviewing the Veteran's claims file, he believed that it was as likely as not that the Veteran's asbestosis was linked to asbestos exposure during his military service, when he was exposed to asbestos as an armored crewman, onboard the U.S.S. Buckner, and in military housing. Based on the foregoing, the Board finds that the evidence supports the conclusion that the Veteran currently has asbestosis. In this regard, the Board finds it significant that, upon reviewing the Veteran's clinical findings, chest radiography, and pulmonary function test results, Dr. Mezey, Dr. Peters, and Dr. Urratia all concurred that the evidence supported a diagnosis of asbestosis. Moreover, the Board finds that the preponderance of the evidence supports the conclusion that the Veteran's asbestosis is related to his asbestos exposure in service. In this regard, the Board finds it particularly significant that, after examining the Veteran and reviewing his complete claims file and medical history, the Veteran's private doctor, Dr. Urratia, provided the opinion that the Veteran's asbestosis was as likely as not linked to his asbestos exposure during military service, which included exposure as an armored crewman, while onboard the U.S.S. Buckner, and in military housing. Moreover, the Board notes that there is no contrary opinion of record. Therefore, the Veteran meets all of the elements required for service connection. He currently has asbestosis, and he has consistently reported the circumstances surrounding his in- service exposure to asbestos, as evidenced by his private treatment records and his statements supporting his claim, and which is further bolstered by his military occupational specialty as an armored crewman with foreign service in Germany. Finally, Dr. Urratia has attributed the Veteran's asbestosis to his in-service exposure to asbestos, thereby providing the necessary nexus between the claimed in-service injury and the present disability. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for asbestosis is granted. ORDER Entitlement to service connection for asbestosis is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The record reflects that, in March 2010, the Veteran filed a notice of disagreement (NOD) to the May 2009 rating decision that assigned an initial 20 percent evaluation for the Veteran's osteoarthritis of the right ankle. The Board finds that the Veteran's NOD regarding this issue was timely filed with the agency of original jurisdiction. See 38 C.F.R. §§ 20.201, 20.300, 20.301(a), 20.302(a). However, the record does not reflect that the RO issued a statement of the case (SOC) in response to the Veteran's March 2010 NOD. In such cases, the Board is required to remand the issue to the RO for issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case addressing the issue of entitlement to an initial rating in excess of 20 percent for osteoarthritis of the right ankle. Inform the Veteran that in order to complete the appellate process for this matter he should submit a timely substantive appeal. If the Veteran completes his appeal by filing a timely substantive appeal, the matter should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs