Citation Nr: 1043980 Decision Date: 11/22/10 Archive Date: 12/01/10 DOCKET NO. 08-30 766 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as asbestosis. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1955 to February 1985. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Philadelphia, Pennsylvania. The case came to the Board from the RO in Wilmington, Delaware. The Board remanded this claim for further development in September 2009. That development having been completed, the case was returned to the Board for appellate disposition. The Veteran testified before the undersigned Veteran's Law Judge at an April 2009 hearing. FINDING OF FACT The evidence shows that it is at least as likely as not that the Veteran's in service exposure to asbestos caused his currently diagnosed pulmonary disorder, claimed as asbestosis. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, a respiratory disorder, claimed as asbestosis was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claims is required at this time. The Veteran contends that he developed asbestosis as a result of his exposure to asbestos while serving in the Navy. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's DD-214 indicates that his military occupational specialty (MOS) at the time of his retirement was teletype repair person and that he had a collateral duty as a career information consultant. Prior to that, the Veteran was a radioman. His service records show that, during his 30 year career in the Navy, the Veteran served aboard numerous vessels at various times between January 1957 and July 1982. These included the U.S.S. Inchon, the U.S.S. Ernest G. Small, the U.S.S. Noa, the U.S.S. Benjamin Stoddert, the U.SS. Rupertus, the U.S.S. Waldron, the U.S.S. Meredith, the U.S.S. Mount Katmai, and the U.S.S Union. A Navy "Occupational Hazard Exposure" form dated in September 1983 listed asbestos among the list of potential hazards to which the Veteran was exposed during his service. At his hearing in April 2009 the Veteran credibly testified that he was exposed to shipboard asbestos at various times during his service. He testified that during his first shipboard assignment on the U.S.S. Union in 1957 he and other crew members were involved in lagging and insulating the shipboard pipes. He explained that all crew members performed this work, regardless of their usual MOS. Additionally, pipes and torn asbestos insulation were exposed in the crew's quarters. The Veteran testified that this was also the case on other ships upon which he subsequently served. The Veteran also submitted a written statement that provided more detail about the various instances when he was required to help install or repair asbestos insulation while aboard naval ships. The Veteran indicated that all of his direct exposure to asbestos took place before 1974; after that time, he could not remember being involved in any hands-on repairs or handling of asbestos. He denied any post-service exposure to asbestos. A private medical evaluation from August 2000 indicated that there was "evidence for pulmonary asbestosis and asbestos- related pleural disease" including a history of exposure to asbestos, a latency period of greater than 15 years before the onset of symptoms, impaired diffusion capacity of the lungs, and chest x-rays showing small, irregular opacities and pleural thickening. At a June 2005 VA examination, the examiner diagnosed the Veteran with asbestosis, although no supporting rationale for the diagnosis was then given and the report of examination indicated that the examiner assumed that the Veteran already had a history of diagnosed asbestosis. To clarify the Veteran's pulmonary status, he was reexamined in March 2010. At that time, the Veteran had abnormally low diffusion capacity of his lungs although there were no pleural calcifications seen on x-ray. The examining physician opined that the overall clinical picture was still "compatible with the [diagnosis] of asbestosis." He opined that the Veteran's respiratory disorder was at least as likely as not related to the Veteran's claimed in service exposure to asbestos based on the Veteran's significant exposure history, lowered diffusion capacity, and history of pleural calcifications in the lungs. There is no opinion of record to the contrary. The above evidence demonstrates that it is at least as likely as not that the Veteran's current respiratory disorder is the result of his exposure to asbestos while in the Navy. The Veteran was exposed to asbestos in service, had no post-service exposure, and was assessed by both a private physician and a VA examiner as presenting a clinical picture that is consistent with asbestos related lung disease. All reasonable doubt in this case was resolved in the Veteran's favor. ORDER Service connection for a respiratory disorder, claimed as asbestosis is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs