Citation Nr: 1030817 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 09-12 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an asbestos related lung disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for asbestosis and pneumonia. 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 (claimed as lung and breathing problems)." The Board has recharacterized the issue in more general terms to more accurately reflect the claim made by the Veteran. 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. Service treatment records do not reveal any complaints, findings, or diagnosis of any respiratory disorder during active service. 2. Service department records establish that the Veteran served almost 4 years in the Navy in the Aviation Machinist Mate rating; official documents indicate this resulted in probable asbestos exposure. 3. The Veteran has current diagnoses of: chronic obstructive pulmonary disease (COPD), asbestosis, and non-small cell lung cancer (NSCLC). 4. A VA medical opinion from the Compensation and Pension examiner indicates that the Veteran's current lung disabilities are less likely than not related to service or asbestos exposure during service; this opinion is based upon the assumption that the Veteran had minimal asbestos exposure for only 6 months during service, which is inconsistent with service department guidance. 5. A second VA medical opinion relates at least a portion of the Veteran's current lung disabilities to asbestos exposure during service. CONCLUSION OF LAW The criteria for service connection for an asbestos related lung 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 lung disability. He specifically claims that he was exposed to asbestos during active service and that this is the cause of his current lung 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. Up to this point VA has not made a correct finding with respect to the Veteran's asbestos exposure during service. The examiner on the August 2008 VA Compensation and Pension examination concluded that the Veteran had "minimal" asbestos exposure during only the 6 month period of time that he was stationed aboard a ship. The April 2008 RO rating decision, and the January 2009 SOC both indicate an incorrect Navy rating for the Veteran. An accurate assessment of the Veteran's in-service exposure to asbestos must be based upon the correct facts, which neither the Compensation and Pension examiner, nor the RO have indicated in the record. The Veteran's discharge papers, DD 214, confirm that he served on active duty in the Navy from December 1950 to October 1954, ultimately being promoted to the rate of Aviation Machinist Mate 3rd Class. He was assigned to an aircraft squadron during most of his time in service. He was also embarked aboard an aircraft carrier for 6 months in 1953. Official guidance related to Navy ratings and asbestos exposure establishes that the Aviation Machinist Mate (AD) rating has "probable" asbestos exposure during service. Based on this, the Board finds that the Veteran had probable asbestos exposure during almost his entire period of active service which spanned almost four years. The medical evidence of record clearly establishes that the Veteran has current lung disabilities. The April 2008 VA Compensation and Pension examination lists final diagnoses of COPD, asbestosis, and carcinoma of the lung (lung cancer). VA treatment records dated from 2007 to the present confirm these diagnoses. An August 2009 VA oncology treatment record indicates diagnoses of Stage I NSCLC, pulmonary fibrosis, and sever obstructive / restrictive disease. The diagnoses of record are confirmed by multiple test results including pulmonary function tests (PFTSs), chest x-rays, and computed tomography (CT) examinations. That the Veteran has current lung disabilities which are related to asbestos exposure is not in question. Rather, the difficulty with the claim is whether there is competent evidence to link the Veteran's current asbestos related lung disabilities to asbestos exposure during active service. At the April 2008 Compensation and Pension examination, the examiner elicited an asbestos exposure history from the Veteran. The report indicates a 4 year history of asbestos exposure during employment prior to service, and a long history of approximately 27 years of asbestos exposure during employment after service. The examiner also specifically considered that the Veteran had only "minimal" asbestos exposure for only 6 months during service. This estimate of the Veteran's level of asbestos exposure is incorrect by understating both the level of exposure and the amount of time of exposure. The physician's medical opinion was that "the contribution of his 6 months service exposure to his pleural asbestosis is minimal to the combined exposure before and after the service for 35 years." The Veteran asserted that he did not have asbestos exposure prior to or after service as is reported on the Compensation and Pension examination report. The examining physician addressed these assertions and issued a new opinion in July 2009, which reached the same etiology conclusions as before stating that it was "less likely than not that any of the Veteran's pulmonary diseases are related to or due to his service [asbestos] exposure." A June 2009 letter from the Veteran's treating VA thoracic surgeon indicates that the Veteran has lung cancer and pleural plaques. The letter acknowledges asbestos exposure during service and that the Veteran has a long history of cigarette smoking. While not as strong as the medical opinions offered by the Compensation and Pension examiner, this letter relates at least a portion of the Veteran's current lung disabilities to asbestos exposure during service. The Veteran has asbestosis and lung cancer. The evidence establishes he had almost 4 years of probable asbestos exposure during active service from December 1950 to October 1954. The evidence establishes that he may have had some asbestos exposure both before and after service, although the level of exposure, and length of time of this exposure, is contested by the Veteran. The medical opinions provided by the examining Compensation and Pension physician state that the Veteran's current lung disabilities are not related to asbestos exposure during service. While these opinions contain supporting rationale, they assume incorrect facts related to overall asbestos exposure during service. The June 2009 VA medical opinion is not as definite as that provided by the Compensation and Pension examiner. This opinion does acknowledge that the Veteran had multiple "exposures," including smoking and asbestos, before, during, and after service but does indicate that the asbestos exposure during service had some amount of contribution to the Veteran's current lung disabilities. "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(b) (West 2002); Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). The Board must resolve all doubt in the Veteran's favor. The negative medical opinions of record do not account for the correct amount of asbestos exposure experienced during service. The positive medical opinion accounts for both the asbestos exposure during service as well as other factors unrelated to service and still indicates some relationship between the current lung disability and asbestos exposure during service. Accordingly, service connection for an asbestos related lung disability is warranted. ORDER Service connection for an asbestos related lung disability is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs