Citation Nr: 1039061	
Decision Date: 10/19/10    Archive Date: 10/22/10

DOCKET NO.  09-09 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUES

1.  Entitlement to service connection for a respiratory disorder 
as due to in-service asbestos exposure.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

John Kitlas, Counsel






INTRODUCTION

The Veteran served on active duty from March 1944 to May 1946, 
and from May 1951 to August 1952.

This matter is before the Board of Veterans' Appeals (Board) on 
appeal from a June 2008 rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, 
Florida, which denied the claims.

For good cause shown 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).

The record reflects the Veteran initially request a hearing in 
conjunction with this case, and such a hearing was scheduled for 
August 2010.  However, the Veteran canceled his hearing request 
in August 2010, prior to the date of the scheduled hearing.  See 
38 C.F.R. § 20.704(e) (2009).


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 had at least minimal asbestos 
exposure during his active service, and no other exposure to 
asbestos is demonstrated elsewhere in the record.

3.  The competent medical evidence reflects the Veteran has a 
competent medical diagnosis of a current respiratory disorder 
that has been found to be most consistent with asbestos exposure.

4.  The preponderance of the competent medical and other evidence 
of record is against a finding that the Veteran's current 
bilateral hearing loss disability was incurred in or otherwise 
the result of his active service.


CONCLUSIONS OF LAW

1.  Service connection is warranted for a respiratory disorder as 
due to in-service asbestos exposure.  38 U.S.C.A. §§ 1110, 1131, 
5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010).

2.  A bilateral hearing loss disability was not incurred in or 
aggravated by the Veteran's active service.  38 U.S.C.A. §§ 1110, 
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 
3.159, 3.303, 3.385 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2010); 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 required as any deficiency has been rendered moot.

Regarding the Veteran's hearing loss claim, the United States 
Court of Appeals for Veterans Claims (Court) has held that 
adequate notice, as required by 38 U.S.C. § 5103(a), must be 
provided to a claimant before the initial unfavorable agency of 
original jurisdiction decision on a claim for VA benefits.  
Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In 
pertinent part, this letter informed the Veteran of what was 
necessary to substantiate his current appellate claim, what 
information and evidence he must submit, what information and 
evidence will be obtained by VA, and the need for the Veteran to 
advise VA of or to submit any evidence in his possession that was 
relevant to the case.  As such, this correspondence fully 
complied with the notice requirements of 38 U.S.C. § 5103(a) and 
38 C.F.R. 
§ 3.159(b), as well as the Court's holding in Quartuccio, supra.  
Moreover, the Veteran was also apprised of the information 
regarding disability rating(s) and effective date(s) mandated by 
the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

(The Board notes that 38 C.F.R. § 3.159 was revised, effective 
May 30, 2008.   See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).   The 
amendments apply to applications for benefits pending before VA 
on, or filed after, May 30, 2008.   The amendments, among other 
things, removed the notice provision requiring VA to request the 
veteran to provide any evidence in the veteran's possession that 
pertains to the claim.   See 38 C.F.R. § 3.159(b)(1).)

All the law requires is that the duty to notify is satisfied and 
that claimants are given the opportunity to submit information 
and evidence in support of their claims.  Once this has been 
accomplished, all due process concerns have been satisfied.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. 
App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  
In view of the foregoing, the Board finds that the Veteran was 
notified and aware of the evidence needed to substantiate his 
claims and the avenues through which he might obtain such 
evidence, and of the allocation of responsibilities between 
himself and VA in obtaining such evidence.  Accordingly, there is 
no further duty to notify.

In addition, the Board finds that the duty to assist a claimant 
in the development of his or her case has been satisfied 
regarding the hearing loss claim.  The Veteran's service 
treatment records are on file, as are various post-service 
medical records.  Further, the Veteran has had the opportunity to 
present evidence and argument in support of his claims, and 
nothing indicates he has identified the existence of any relevant 
evidence that has not been obtained or requested.  As detailed in 
the Introduction, the Veteran canceled his request for a hearing 
in conjunction with this case.  The Board acknowledges that VA 
has not accorded the Veteran an examination in conjunction with 
this case, but for the reasons stated below no such development 
is warranted in this case.  Consequently, the Board finds that 
the duty to assist the Veteran has been satisfied in this case.

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).  

General Legal Criteria

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).

Asbestos

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.

In this case, the Veteran's service personnel records reflect 
that his primary job classification was that of a yeoman, with 
military occupational specialty of clerk/typist.  He contends, 
however, that his designation of a yeoman was merely for 
classification purposes so he could be part of the Navy, and that 
he never actually performed the duties of a yeoman.  Rather, he 
maintains that his duties included shore patrol, yard oiler, 
servicing and repairing disease engines while about ship, and 
work in an evaporator room while at sea.  He maintains that he 
had asbestos exposure from his work with the diesel engines and 
evaporator room.

Inasmuch as the Veteran's official service records reflect his 
duties were that of a yeoman, clerk/typist, and there is no 
supporting evidence to the aforementioned contentions, the Board 
finds that there is no credible evidence that the Veteran's 
duties aboard ship involved working on diesel engines or in the 
evaporator room.  Nevertheless, the record does reflect he served 
aboard ship as part of the Navy during active service.  
Therefore, the Board finds that it cannot be ruled out that the 
Veteran was exposed to asbestos while serving on active duty.  
Moreover, the RO acknowledged that the Naval Sea Systems Command 
has rated the probability of the Veteran's job (yeoman) of being 
exposed to asbestos as "minimal."  Accordingly, in resolving 
all benefit of doubt in the Veteran's favor, the Board finds that 
the Veteran had at least minimal exposure to asbestos in service, 
as such is consistent with the circumstances of his service.

The Board further notes that nothing in the record indicates the 
Veteran had any other exposure to asbestos other than during his 
active service.  Consequently, the Board must find that any 
current disability attributable to asbestos exposure must be 
related to active service.

In this case, there is competent medical evidence that the 
Veteran has a current respiratory due to asbestos exposure.  
Specifically, a February 2008 private CT scan of the chest 
included a finding of calcified pleural plaguing bilaterally, 
"most consistent with asbestos exposure."  Although such a 
disability was first diagnosed decades after the Veteran's active 
service, as detailed above VA recognizes that the latent period 
for asbestos-related diseases varies from 10 to 45 or more years 
between first exposure and development of disease.  

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 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 
respiratory disorder due to in-service asbestos exposure.

Hearing Loss

For the purpose of applying the laws administered by VA, impaired 
hearing is considered a disability when the auditory threshold in 
any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz 
is 40 decibels or greater; or when the auditory threshold for at 
least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 
Hertz is 26 decibels or greater; or when speech recognition 
scores using the Maryland CNC Test are less than 94 percent.  38 
C.F.R. § 3.385.  Further, the Court has indicated that the 
threshold for normal hearing is between 0 and 20 decibels and 
that higher thresholds show some degree of hearing loss.  Hensley 
v. Brown, 5 Vet. App. 155, 157 (1993).  When audiometric test 
results at a veteran's separation from service do not meet the 
regulatory requirements for establishing a "disability" at that 
time, he may nevertheless establish service connection for a 
current hearing disability by submitting evidence that the 
current disability is causally related to service.  Hensley, 5 
Vet. App. at 160.  

The Board acknowledges that a September 2007 private audiogram 
indicates the Veteran currently has a bilateral hearing loss 
disability as defined by 38 C.F.R. 
§ 3.385.  However, the Board finds the preponderance of the 
competent medical and other evidence of record is against a 
finding that this disability was incurred in or otherwise the 
result of his active service.

The Veteran essentially contends that he has hearing loss due to 
in-service noise exposure from working around diesel engines 
while aboard ship.  However, as detailed above, the Board has 
already determined that this contention is not credible.  Thus, 
it is not entitled to probative value in the instant case.  
Moreover, even if the Board were to find the Veteran did have 
such noise exposure during service, his claim would still be 
denied.  See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board 
has the fundamental authority to decide a claim in the 
alternative.).

The Veteran, as a lay person, is competent to describe in-service 
noise exposure.  See Jandreau, supra.  However, as detailed 
above, specific medical testing is required to show a hearing 
loss disability under 38 C.F.R. § 3.385 and/or evidence of 
hearing loss pursuant to Hensley, supra.  As such, it is not the 
type of disability that can be diagnosed via lay testimony.

In this case, the record does not reflect the Veteran had any 
audiological testing during his active service, nor for decades 
thereafter.  Nevertheless, there is no indication of any 
complaints regarding his ears/hearing during active service.  
Further, his ears were consistently evaluated as normal on 
service examinations.  For example, a May 1946 separation 
examination found no disease or defects of the ears, and his 
hearing was found to be 15/15 on whispered voice testing.  
Similarly, no medical defects were noted on his August 1952 
release from active duty examination, and his hearing was again 
found to be 15/15 on whispered voice testing.

The Board further notes that the first audiological evidence of 
record appears to be that of the September 2007 private records, 
more than 50 years after the end of the Veteran's last period of 
active service.  Although these records note a history of hearing 
loss for 5 years or more, this places the onset of hearing loss 
in approximately 2002, which is still decades after the end of 
his active service.

The Court has indicated that the normal medical findings at the 
time of separation from service, as well as the absence of any 
medical records of a diagnosis or treatment for many years after 
service is probative evidence against the claim.  See Mense v. 
Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it 
found that veteran failed to account for the lengthy time period 
after service for which there was no clinical documentation of 
low back condition); see also Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000) (A prolonged period without medical 
complaint can be considered, along with other factors concerning 
a claimant's health and medical treatment during and after 
military service, as evidence of whether an injury or a disease 
was incurred in service which resulted in any chronic or 
persistent disability.).  Moreover, as this disability was first 
diagnosed decades after service, the Veteran is not entitled to a 
grant of service connection pursuant to the presumptive 
provisions of 38 C.F.R. §§ 3.307, 3.309(a).

The Board also finds it significant that while the Veteran had 
various claims for VA benefits over the years, he did not claim 
service connection for hearing loss until April 2008.  Unlike his 
asbestos claim, there is no evidence of record which indicates 
hearing loss is the type of disability that had can have a 
latency period of decades between noise exposure and the 
development of the disability.  Therefore, if the Veteran did 
develop hearing loss due to in-service noise exposure, the Board 
finds it would be only logical that he would seek service 
connection for such a disability at an earlier time since the 
record clearly reflects he was aware of the procedures necessary 
to make such a claim.  See Shaw v. Principi, 3 Vet. App. 365 
(1992) (A veteran's delay in asserting a claim can constitute 
negative evidence that weighs against the claim).

In addition, no competent medical opinion is of record which 
relates the Veteran's current hearing loss to active service.  
Moreover, the Board concludes that no development on this matter 
is warranted in this case.  In the absence of evidence of in-
service incurrence or aggravation of this disability, referral of 
this case for an opinion as to etiology would in essence place 
the examining physician in the role of a fact finder.  This is 
the Board's responsibility.  In other words, any medical nexus 
opinion would not be supported by what actually occurred in 
service.  Simply put, there is no relevant complaint or clinical 
finding for a clinician to link the current hearing loss 
disability to the Veteran's military service.  The Court has held 
on a number of occasions that a medical opinion premised upon an 
unsubstantiated account of a claimant is of no probative value.  
See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical 
opinion that is based on the veteran's recitation of medical 
history, and unsupported by clinical findings, is not probative); 
Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion 
based on speculation, without supporting clinical data or other 
rationale, does not provide the required degree of medical 
certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A 
medical opinion is inadequate when unsupported by clinical 
evidence).  












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For these reasons, the Board concludes that the preponderance of 
the evidence is against the Veteran's claim of service connection 
for a bilateral hearing loss disability.  As the preponderance of 
the evidence is against this claim, the benefit of the doubt 
doctrine is not for application in the instant case.  See 
generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 
1361 (Fed. Cir. 2001).  Consequently, the benefit sought on 
appeal with respect to this claim must be denied.


ORDER

Entitlement to service connection for a respiratory disorder as 
due to in-service asbestos exposure is granted.

Entitlement to service connection for bilateral hearing loss is 
denied.



____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs