Citation Nr: 1142425 Decision Date: 11/16/11 Archive Date: 11/30/11 DOCKET NO. 09-29 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York City, New York. The Veteran presented testimony before the undersigned Veterans Law Judge at the RO in April 2011. A transcript of that hearing is associated with the claims folder. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether asbestosis is causally related to asbestos exposure in service. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for service connection for asbestosis are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for Asbestosis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496. The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is seeking service connection for asbestosis, which he contends results from asbestos exposure in service when he spent 42 months aboard a World War II class carrier. He testified that piping throughout the ship was not maintained well, so that there was asbestos dust throughout the berthing compartments and work areas, and he was exposed 24 hours per day. The Veteran's Form DD 214 indicates that he had 3 years and 7 months of foreign and/or sea service and his service occupation was aviation ordnance mechanic. Service personnel records confirm that he served on the USS Bon Homme Richard. The RO determined that there was minimal probability that the Veteran was exposed to asbestos based on his military specialty. Service treatment records reflect that the Veteran was hospitalized for pneumonia in December 1966. He was diagnosed with bronchitis in June 1967. X-rays showed slight streaky infiltrate, and the Veteran complained of coughing and chest congestion in the left costral pleuria. In August 1967, he complained of pain in the right side of his chest, and x-rays at that time were within normal limits. The Veteran sought treatment for coughing and chest pain in September and December 1967 and March 1968, when rales were noted. The Veteran was afforded a VA examination in June 1971, in which he reported pain in his left chest at times. On examination, there was no cyanosis, dyspnea, or chest lag, and x-rays showed no significant pulmonary or pleural pathology. Private treatment records dated between January 2006 and May 2008 reflect that pulmonary nodules and focal pleural thickening were detected by CT scan. Periodic scans indicated that the condition remained stable over time. The claims file contains includes a January 2008 letter from S.L., M.D., who states that he has examined a recent CT scan of the Veteran's lungs and detected scarring associated with asbestosis. A January 2008 letter from M.G., M.D., states that the Veteran has asbestosis and that he was first exposed to asbestos dust in service. The doctor asserts that the Veteran had constant exposure to the dust during that time, which is "quite significant." He also opines that, as this was the Veteran's earliest exposure to asbestos, it would be "the earliest to result in the disease process." June 2008 evaluation report from W.S., M.D., notes that the Veteran first experienced dyspnea on exertion 4 years earlier which had become worse over time. He states that the Veteran was first exposed to asbestos in service, and that his exposure was heaviest after service in his first 15 years as a steamfitter. Based on the long history of asbestos exposure, the pulmonary function test (PFT) results, and radiographic findings, the doctor diagnosed asbestos-related pulmonary disease. The Veteran was afforded a VA examination in October 2008, in which the Veteran reported asbestos exposure aboard ship in service, as well as in his post-service occupation as a steamfitter. Based on the PFT and CT scans in the claims file, the examiner diagnosed asbestosis. He noted inconsistencies in the record; specifically, the Veteran reported constant exposure to asbestos in service, while the expected exposure for his occupation was only minimal. In addition, W.S. had determined that the Veteran had the heaviest exposure during the first 15 years of his post-service employment. Given that the Veteran had exposure both during and after service, the examiner was unable to determine whether the condition was related to service without resorting to speculation. After carefully reviewing the relevant evidence, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran's asbestosis is related to service. The evidence clearly establishes that he currently has asbestosis. Both the VA examiner and the Veteran's private doctors acknowledge that he was exposed to asbestos both during and after service, but they disagree as to the extent of that exposure. Although there is only minimal probability that the Veteran was exposed to asbestos based on his military specialty alone, that is some degree of exposure. Further, the has testified that he saw asbestos dust throughout the ship. His experience as a steam fitter renders him competent to recognize asbestos dust, and the Board has no reason to doubt his credibility. The Veteran's private doctor has opined that the earlier exposure was significant and the most likely cause of his current disability. The VA examiner could not determine whether in-service or post-service exposure was responsible for asbestosis without resorting to speculation, suggesting that the actual cause cannot be selected from multiple potential causes. Thus, the evidence is in equipoise. Resolving all doubt in favor of the Veteran, service connection for asbestosis is granted. Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. With regard to the issue decided herein, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for asbestosis is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs