Citation Nr: 1103181 Decision Date: 01/25/11 Archive Date: 02/01/11 DOCKET NO. 10-05 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for pleural plaques due to asbestos exposure, also claimed as asbestosis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.L. Shields, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1961 to February 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran served as an Aviation Boatswains Mate while aboard the U.S.S. Saratoga, where he was exposed to asbestos. 2. The Veteran has pleural plaques due to his asbestos exposure. CONCLUSION OF LAW The Veteran has pleural plaques that are the result of asbestos exposure in military service. 38 U.S.C.A. §§1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans' Claims Assistance Act As a preliminary matter, the Board notes that regulations enacted under the Veterans' Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. See 38 U.S.C.A. §5103 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010). Regulations also dictate that VA has a duty to assist claimants, essentially providing that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. See 38 U.S.C.A. §5103(A) (2002); 38 C.F.R. §3.159(c) (2010). As will be discussed below, the Board finds that service connection is warranted. As such, a discussion of the VCAA is not needed. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Legal Criteria Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military service. 38 U.S.C.A. §1110; 38 C.F.R. §3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §3.303(b). Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§1110, 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§3.307, 3.309 (2010). Service connection may also 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). There is no specific statutory guidance with regard to asbestos- related claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The date of this amended material is December 13, 2005. The United States Court of Appeals for Veterans Claims (Court) 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). The 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 IV.ii.2.C.9.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. 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. M21-1MR IV.ii.2.C.9.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. Inhalation of asbestos fibers can produce 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). M21-1MR IV.ii.2.C.9.b. The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). M21-1MR IV.ii.2.C.9.d. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not 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. M21-1MR IV.ii.2.C.9.h. The relevant factors discussed in the Manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. The United States Court of Appeals for Veterans Claims has held that it is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state its reasons or bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The Court has also indicated that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). History and Analysis The Veteran contends that service connection is warranted for lung disability due to asbestos exposure. During service, the Veteran asserts he was exposed to asbestos while on board the U.S.S. Saratoga. Specifically, he often worked with asbestos- insulated launch valves as a member of a Cat 3 crew doing maintenance and repair to steam catapults and arresting gear. Naval personnel records dated June 1961 confirm that the Veteran served in this capacity while aboard the ship. The VA has recognized that several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to asbestos since it was used extensively in military ship construction. See Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1998). The Court has held that a veteran is competent to testify as to the facts of his asbestos exposure and it is up to the Board to weigh the credibility of that testimony. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Based on the evidence of record in this case, the Board finds the Veteran's allegations regarding his asbestos exposure to be credible and consistent with the conditions of his naval service. Thus, the question for the Board remains whether he has a current disability that has been medically linked to this exposure. The Veteran's service treatment records do not contain any references to asbestosis or a chronic lung or chest disorder; however, the Veteran's service treatment records indicate that he suffered from a chronic cough due to smoking during service. The Veteran was first treated by Dr. V.E., a private physician. After a June 2006 chest x-ray was administered, Dr. V.E. reported that the CT scan revealed scattered bilateral pulmonary nodules, some of which were calcified, indicating previous granulomatous disease. The chest x-ray was followed by a Computed Tomography (CT) scan, which also revealed calcified bilateral nodules. In July 2006, the Veteran was examined by Dr. R.G., a private physician. The Veteran reported to Dr. R.G. that he smoked cigarettes for approximately 45 years and quit in 1999. The Veteran also reported to Dr. R.G. that he has worked in a machine shop for most of his life (he was employed at the machine shop at the time of the examination) and was exposed to various types of dust and fumes. The Veteran denied chest pain and told Dr. R.G. that he remains active as he has a farm that he visits each weekend. The Veteran reported that he suffers from a chronic cough during the week, but reported that the cough subsides when he visits the farm on the weekends. Dr. R.G. noted that the Veteran's bilateral pulmonary nodules present on the June 2006 chest x-ray and CT scan appear to be calcified and appear to be secondary to prior granulomatous disease. Dr. R.G. asked the Veteran to follow up with him in six months with another CT scan in order to re-evaluate the pulmonary nodules. The Veteran was examined by Dr. V.E. in June 2006 and again in October 2006 and the examination of the Veteran's respiratory system in both instances revealed symmetrical chest expansion bilaterally with a normal respiratory rate and pattern. Dr. V.E. also noted that the Veteran's lung fields were resonant bilaterally and that there were normal vesicular breath sounds present without any wheezing. A CT scan was administered in January 2007 and Dr. R.G. reported that the CT scan indicated the presence of benign calcified pleural plaques with no pulmonary nodules described. Dr. R.G. again asked the Veteran to follow up with him in six months with another CT scan in order to monitor the Veteran's pleural plaques. Another CT scan was done in June 2007 and the CT scan report indicated no significant change to the bilateral pleural calcifications over the past six months and that the aforementioned pleural calcifications were related to prior asbestos exposure. Dr. R.G. asked the Veteran to follow up with him in six months with another CT scan. Another CT scan was administered to the Veteran in December 2007 and the Veteran was examined by Dr. D.H., a private physician. The Veteran reported he was exposed to asbestos while working at the naval shipyard. The CT scan revealed pleural plaques with no evidence of pulmonary nodules. Based on the medical history provided by the Veteran and the CT scan, Dr. D.H. concluded that the Veteran's pleural plaques developed as a result of his asbestos exposure and recommended that the Veteran follow up in six months with a repeat CT scan. The Veteran was again examined by Dr. R.G. in June 2008 and the Veteran reported that his overall symptoms were unchanged over the prior six months. A CT scan was done and showed stable, calcified bilateral pleural plaques with no evidence of masses or nodules. Based on the Veteran's medical history and CT scan, Dr. R.G. concluded that the Veteran's pleural plaques developed due to his asbestos exposure and that these pleural plaques were stable over the six-month period. The Veteran was told to follow up with Dr. R.G. in six months. The Veteran was examined by Dr. R.G. in December 2008 and the Veteran reported no new complaints since his prior examination. A CT scan was done and revealed calcified bilateral pleural plaques which were unchanged from the previous CT scan. Dr. R.G. once again concluded that the Veteran's calcified bilateral pleural plaques were "probably" secondary to his prior asbestos exposure during the 1960s when he served in the U.S. Navy. The Veteran was told to follow up with Dr. R.G. in six months. Greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physician and whether or not (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Although Dr. V.E.'s June 2006 and October 2006 examinations reveal the Veteran exhibited normal vesicular breath sounds as well as a normal respiratory rate and pattern, the January 2007, June 2007, December 2007, June 2008 and December 2008 CT scans all revealed the presence of calcified bilateral pleural plaques, which developed due to prior asbestos exposure. The private physician opinions supplied by Dr. R.G. and Dr. D.H. interpreting the aforementioned CT scans support the Veteran's claim. As noted above, the Board accepts that the Veteran was exposed to asbestos during service. In addition, the record contains unrefuted CT scan interpretations by Dr. R.G. and Dr. D.H. who opined that the Veteran's bilateral calcified pleural plaques developed due to his exposure to asbestos during his military service. The Board notes that Dr. R.G.'s medical conclusions were made with full knowledge of the Veteran's post-service exposure to dust and fumes as a machine shop employee as well as his history of smoking. As such, it is clear that the evidence regarding the Veteran's lung disability due to asbestos exposure in service is at least in equipoise. Accordingly, since the evidence is at least in equipoise, the benefit of the doubt doctrine is applicable and the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for pleural plaques due to asbestos exposure is granted. ORDER Service connection for pleural plaques due to asbestos exposure is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs