Citation Nr: 1114751 Decision Date: 04/14/11 Archive Date: 04/21/11 DOCKET NO. 09-01 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for asbestosis as a result of asbestos exposure. 2. Entitlement to service connection for degenerative joint disease of the left hand, claimed as secondary to service-connected amputation of the distal joint of the left index finger. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Jaeger, Counsel INTRODUCTION The Veteran had active military service from March 1951 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2010, the Board remanded the case for additional development and this matter now returns for further appellate review. The Veteran provided testimony before the undersigned Acting Veterans Law Judge sitting at the RO in August 2009; a transcript of the hearing has been associated with the Veteran's claims file. In a January 2011 statement, the Veteran alleges that his service-connected amputation of the distal joint of the left index finger has resulted in his unemployment. As such, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, asbestosis is etiologically related to his in-service exposure to asbestos. 2. Resolving reasonable doubt in favor of the Veteran, degenerative joint disease of the left hand is caused by his service-connected amputation of the distal joint of the left index finger. CONCLUSIONS OF LAW 1. Asbestosis was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. Degenerative joint disease of the left hand is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for asbestosis and degenerative joint disease of the left hand herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Asbestosis At his August 2009 Board hearing and in documents of record, the Veteran contends that he was exposed to asbestos during his naval service when he served on "damage control" working on submarines and ships. He claims that his in-service exposure resulted in asbestosis and, therefore, service connection for such disease is warranted. Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 2, section C, paragraph 9 (Jan. 7, 2007) ("VA Manual"). Also, an opinion by VA's Office of General Counsel (OGC) discussed the proper way of developing asbestos claims. See VAOPGCPREC 4-2000 (Apr. 13, 2000). The VA Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). The VA Manual also lists some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos-related diseases/abnormalities: fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. VA Manual, paragraph 9(d). The extent and duration of exposure to asbestos is not a factor for consideration. Id. at Subsection (d). Thus, an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines further provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. VA Manual, paragraph 9(e). Rating specialists must develop any evidence of asbestos exposure before, during, and after service. 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. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The United States Court of Appeals for Veterans Claims has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). In the instant case, the Veteran's service records are negative for evidence of a chronic lung disorder or evidence that the Veteran was exposed to asbestos. Chest X-rays during active service consistently show normal pulmonary findings. The examination report for separation in July 1954 showed normal lungs and a normal chest. However, the Board finds that the Veteran is competent to report his in-service exposure to asbestos while serving on "damage control" working on submarines and ships. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Additionally, the Board finds such statements to be credible. In this regard, some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, 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. As the Veteran worked on submarines and ships, to include the U.S.S. Kittiwake as documented by his Report of Separation from the Armed Forces of the United States, the Board finds his report of in-service exposure to asbestos to be competent and credible. Moreover, such asbestos exposure is consistent with the Veteran's military service aboard naval vessels during the 1950's. See 38 U.S.C.A. § 1154(a). Therefore, the remaining inquiry is whether the Veteran has a current pulmonary disability that is related to his in-service asbestos exposure. In this regard, post-service medical evidence of record reflects that, on a CT scan of the left lung in September 2005, the Veteran was diagnosed with fibrosis in the lung base that were felt to be post inflammatory or related to asbestosis. Based on such CT scan and a physical examination, the Veteran's treating physician, Dr. Marshall, diagnosed asbestosis. A July 2007 private toxicology consultation report completed by Dr. Schiefer noted that the Veteran reported asbestos dust exposure from 1948 to 1986, which includes exposure during his military service as well as in his post-service occupation. Dr. Schiefer observed that he reviewed March 2006 X-rays and noted parenchymal changes consistent with asbestos-related pneumoconiosis. Based on the radiographic evidence and a significant past history of asbestos dust exposure, Dr. Schiefer indicated that it was his opinion within a reasonable degree of medical certainty that the Veteran's pulmonary disease is multifactorial and asbestos-related. The Veteran's treating physician, Dr. Marshall, noted in August 2007 that a chest radiograph was consistent with asbestosis. The Veteran underwent a VA examination in January 2008. The examiner noted that a CT scan in January 2008 did not reveal any CT evidence of asbestosis exposure. The examiner concluded that the Veteran had an inflammatory lung disease, but indicated that asbestosis was not present at such time. While the physician who conducted the January 2008 VA examination addressed whether the Veteran had asbestosis, he did not give an opinion as to whether the diagnosed inflammatory lung disease was related to service. As such, the Veteran was afforded a VA examination in May 2010 in order to determine whether he had a current pulmonary disability related to his in-service exposure to asbestos. At such time, the examiner noted that the Veteran reported exposure to asbestos during and subsequent to service. She also observed that post-service treatment records revealed asbestosis on diagnostic testing. Following a review of the record, an interview with the Veteran, and a physical examination, to include diagnostic testing, the examiner diagnosed fibrosis of lung related to asbestos exposure and chronic obstructive pulmonary disease (COPD) with a smoking history. She indicated that she could not resolve the issue of whether any current pulmonary disease was at least as likely as not related to service or is the result of in-service asbestos exposure without resort to mere speculation. In this regard, the examiner noted that the claims file had two CT scans that contradict each other and there was a question as to the Veteran's exact diagnosis other than COPD. She further indicated that COPD was more likely than not caused directly by his long history of smoking. The examiner reported that it was true that the Veteran had exposure in service to asbestos, but it was also very likely he had exposures at the chemical and power plants he worked in after service and there was no way for her to discern the exposure that may or may not have caused asbestosis, which was still in question. Based on the foregoing, the Board resolves reasonable doubt in favor of the Veteran and finds that he has asbestosis related to his in-service asbestos exposure. In this regard, the Board is cognizant that there appears to be conflicting evidence regarding whether the Veteran, in fact, has evidence of asbestosis on diagnostic testing. As such, the Board finds that the evidence is in relative equipoise as to whether there is a current diagnosis of asbestosis. The Board further observes that the Veteran was exposed to asbestos during and subsequent to service and, in this regard, the May 2010 VA examiner indicated that she could not determine whether Veteran's in-service or post-service asbestos exposure may or may not have caused asbestosis. Additionally, Dr. Schiefer determined in July 2007 that, based the radiographic evidence and a significant past history of asbestos dust exposure, dating from 1948 to 1986, that the Veteran's pulmonary disease is multifactorial and asbestos-related. Therefore, the Board will resolve reasonable doubt in favor of the Veteran and find that he has asbestosis that is etiologically related to his in-service asbestos exposure. Consequently, service connection for asbestosis is warranted. Degenerative Joint Disease of the Left Hand The Board notes that the Veteran does not allege, nor does the record reflect, that he first manifested a left hand disorder, diagnosed as degenerative joint disease, during service or that such is otherwise related to service on a direct or presumptive basis. In this regard, the Veteran's service treatment records are negative for complaints, treatment, or diagnoses referable to the left hand. Additionally, there is no evidence that arthritis manifested within one year of the Veteran's discharge from service in July 1954. Rather, at his August 2009 Board hearing and in documents of record, the Veteran claims that he currently has a left hand disorder as a result of his service-connected amputation of the distal joint of the left index finger. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the nature progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Veteran's service treatment records reflect that, in July 1951, he suffered a compound fracture of the distal phalanx of the left index finger. It was noted that, while he was slicing cucumbers with an electric slicer, the Veteran's finger slipped across the spinning blade and was lacerated. X-rays showed complete fracture of the distal phalanx. Sutures were applied. In September 1951, the tip of the Veteran's left index finger was amputated. His prior laceration and fracture of the distal phalanx was noted and it was observed that his sutures were removed after a week and, on the next dressing three days later, the necrotic tip fell off. The tip remained exquisitely tender to touch and revision of the stump was advised. As such, the Veteran underwent an amputation of the tip of his left index finger. In June 1952, he underwent a second revision of the stump of his left index finger. Therefore, service connection for amputation of the distal joint of the left index finger was granted in a rating decision issued in February 1962. Post-service treatment records reflect diagnoses of degenerative joint disease and osteoarthritis of the left hand as demonstrated by X-rays conducted in January 2008 and May 2010, respectively. Therefore, the remaining inquiry is whether the Veteran's service-connected amputation of the distal joint of the left index finger caused or aggravated his degenerative joint disease of the left hand. In this regard, there are conflicting opinions of record. At a January 2008 VA examination, the Veteran reported that his hand was caught in a machine during service, which resulted in the traumatic amputation of the distal interphalangeal (DIP) joint of the left index finger. He complained of soreness, swelling, weakness, aching pain, numbness, and the locking up of his middle finger. Following a review of the claims file, an interview with the Veteran, and a physical examination, the examiner opined that the Veteran's degenerative joint disease would not be at least as likely as not related to the traumatic amputation of the DIP joint of his left index finger. At a May 2010 VA examination, it was again noted that the Veteran's hand was caught in a machine and resulted in the amputation of the distal joint of his left index finger. The examiner noted that there was an overall decrease in strength and dexterity of the left hand. She also observed that there was a slight difference between left hand weakness and right hand strength on objective examination. Following a review of the claims file, an interview with the Veteran, and a physical examination, the examiner opined that it was less likely as not that the Veteran's degenerative joint disease of the left hand was permanently aggravated by the traumatic amputation of the DIP of the left index finger. She noted that the traumatic in-service injury was long before the degenerative joint disease of the joint and there was no evidence that the Veteran's left hand was worse than the right hand or that the osteoarthritis of his hands were not merely from hard work and aging. However, the examiner further stated that the literature illustrated that injury does make the risk of formation of arthritis much worse and it would be more likely than not that the Veteran's increased pain and decreased strength in his left hand is directly related to the old injury. Therefore, in light of the conflicting opinions offered by the January 2008 and May 2010 VA examiners, the Board concludes that the evidence is in equipoise as to whether the Veteran's service-connected amputation of the distal joint of the left index finger caused his degenerative joint disease of the left hand, to include his symptoms of increased pain and decreased strength. Consequently, the Board will resolve reasonable doubt in his favor and find that service connection on a secondary basis is warranted. ORDER Service connection for asbestosis is granted. Service connection for degenerative joint disease of the left hand, as secondary to amputation of the distal joint of the left index finger, is granted. ____________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs