Citation Nr: 1029871 Decision Date: 08/10/10 Archive Date: 08/24/10 DOCKET NO. 07-23 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lung disorder (claimed as breathing disorder) as result of asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to February 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claim. 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). In May 2009, the Board remanded this case for further evidentiary development, to include a VA examination to address the nature and severity of any residuals of asbestos exposure. As an initial matter, the Board finds that the remand directives have been completed, and, thus, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). The Board further notes that the Veteran also perfected appeals on the issues of entitlement to service connection for hearing loss and tinnitus, and that these issues were included as part of the May 2009 remand. However, service connection was subsequently established for both of these disabilities by a June 2010 rating decision. In view of the foregoing, these issues have been resolved and are not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the instant case have been completed. 2. The record reflects the Veteran has a current lung disorder due, at least in part, to in-service asbestos exposure. CONCLUSION OF LAW Service connection is warranted for a lung disorder as due to asbestos exposure. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009); VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.21 (Oct. 3, 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that service connection is warranted for a lung disorder as due to in-service asbestos exposure. Therefore, no further discussion of the VCAA is warranted in this case as any deficiency has been rendered moot. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's essentially contends that he was exposed to asbestos while serving onboard ship during his active duty. For claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos- related diseases. This circular, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual 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). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21- 1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, 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. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence 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. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period 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(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the Board previously concluded in the May 2009 remand that the Veteran had been exposed to asbestos while on active duty. Specifically, the Board noted that the August 2007 rating decision held that a review of the Veteran's service personnel records show that his military occupational specialty was aviation structural mechanic and that this field would have a high probability of asbestos exposure. The Board stated that it would not disturb this finding. Accordingly, it was conceded that the Veteran was likely exposed to asbestos during his military service. In view of the foregoing, the Board remanded this case for a VA medical examination to determine whether it was at least as likely as not (that any diagnosed disorder, including chronic obstructive pulmonary disease (COPD), was related to an event, injury, or disease in service, including asbestos exposure. The Veteran subsequently underwent a VA respiratory examination in November 2009, at which time the examiner noted the Veteran had dyspnea on exertion over the last few years and could walk from half to one mile and then he had to stop because of shortness of breath with dyspnea on exertion. The examiner noted that this could be due to COPD and the Veteran's restrictive lung defect. The examiner also noted that the condition was mild as indicated on pulmonary function tests, with minimal change post- bronchodilator. Further, the examiner noted the Veteran had a significant history of smoking with one to two packs per day for more than 50 years, and that the respiratory problems were likely from the smoking and tobacco use. In addition, the Veteran had mild restrictive defect and some interstitial changes on chest X- ray and mild decrease in DLCO. The examiner stated that these findings could be consistent with his purported asbestos exposure, and that a form of asbestos-related lung injury could not be ruled out. However, the chest X-ray did not show any pleural plagues or calcifications on the diaphragm. Moreover, the examiner noted that the case had been discussed with another clinician who agreed with this assessment and diagnosis. In short, the November 2009 VA examiner indicated that the Veteran's current lung disorder was primarily due to condition(s) other than his in-service asbestos exposure, but that such an etiological relationship could not be ruled out. Thus, the examiner concluded that the current lung disorder was due, at least in part, to such exposure. As this opinion was based upon both a physical evaluation of the Veteran and an accurate understanding of his medical history based on review of his VA claims folder, the Board finds that it is based upon an adequate foundation. The Board notes that the examiner indicated the current lung disorder is primarily due to smoking and tobacco use, and the law mandates that for claims received by VA after June 9, 1998 (as is the case here), a disability will not be considered service connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Nevertheless, as already stated the examiner indicated that the current disability was due at least in part to the asbestos exposure. The level of disability due to the asbestos exposure and the level due to smoking goes more toward the appropriate disability rating to be assigned in a case, rather than whether service connection is warranted based upon the acknowledged asbestos exposure. The Board also wishes to reiterate, as discussed above, that it is the defined and consistently applied policy of VA that after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Moreover, in Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert, supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Resolving all reasonable doubt in favor of the Veteran, the Board finds that he is entitled to a grant of service connection for a lung disorder as a result of in-service asbestos exposure. ORDER Entitlement to service connection for a lung disorder (claimed as breathing disorder) as result of asbestos exposure is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs