Citation Nr: 1133229 Decision Date: 09/08/11 Archive Date: 09/15/11 DOCKET NO. 07-20 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a pulmonary disability, to include asbestosis REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from March 1962 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded this matter in September 2010. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was exposed to asbestos during service. 2. Competent medical evidence establishes that a current pulmonary disability is related to asbestos exposure during service. CONCLUSION OF LAW An asbestos-related pulmonary disorder was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2010). In this case, VA provided the Veteran adequate notice and assistance with regard to his claim. Even assuming otherwise, remanding for additional notification and/or assistance is unnecessary because, due to the favorable disposition of this claim, the Board's decision to proceed in adjudicating it does not prejudice the Veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). II. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110, 1131. 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). 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). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). 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, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00. The Court has held that applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). The M21-1 guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1, Part VI, Par. 7.21(b). This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). 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. VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer and cancers of the gastrointestinal tract. See Veterans Benefits Administration Manual M21-1, part VI, paragraph 7.21(a)(1). The Veteran testified that he was exposed to asbestos when he was aboard the USS Maddoxx. He stated that there were heat pipes over his bunk and that dust and insulation from the pipes fell onto him. The Board finds the Veteran's testimony regarding asbestos exposure credible. Service treatment records reflect that the March 1962 enlistment examination showed normal findings regarding the lungs and chest. Service treatment records reflect treatment for a cold and cough in March 1964. The March 1965 separation examination noted normal clinical evaluation of the chest and lungs. Post-service medical records reflect initial post-service treatment of respiratory complaints in 1966. Private medical records dated in 1966 noted complaints of chronic cough, chest congestion and difficulty breathing. An imaging report from Good Samaritan Hospital, dated in December 2004, reflects an impression of findings suggestive of either right pleural thickening versus a small pleural effusion. The Veteran had a VA examination in November 2006. The examination report noted that the Veteran was stationed on a ship from 1962 to 1965. There was some dust from the asbestos ceiling and pipes, but the Veteran was not engaged in stripping it off, fabricating it or cutting it. The examiner noted that the Veteran slept on the top bunk, and some dust came down occasionally. A chest x-ray showed that the cardiac silhouette was mildly enlarged. There was no focal infiltrate, effusion or pneumothorax. Asbestos exposure was not visualized. There was no evidence of any pleural disease or interstitial fibrosis. The examiner's assessment was 66 year old Caucasian male, former 20-30 pack year smoking history, with a history of personal exposure to asbestos, history of obstructive sleep apnea that probably should be treated with C-PAP. The examiner stated that he saw no evidence of any service-connected impairment due to the Veteran's asbestos exposure. A VA consultation report dated in November 2006 reflects an impression of mild restrictive lung disease. VA medical records dated in May 2008 reflect that the Veteran's chief complaint was shortness of breath. A diagnosis of COPD was noted. VA records dated in June 2008 reflect that a CT scan showed pleural plaques consistent with asbestos exposure. Upon VA examination in November 2010, the examiner noted that the claims file was reviewed. The Veteran reported service aboard the USS Maddoxx from 1962 to 1965. He indicated that he did a lot of work on deck, painting and chipping, but very little asbestos exposure, although he said that there was "hanging asbestos" where his bunk was. The Veteran indicated that he never fashioned it or manipulated the asbestos as part of his work. The examiner's assessment was ischemic cardiomyopathy, which the examiner indicated was one of the major sources of dyspnea along with obesity. The examiner stated that the Veteran did have a mild restriction which was both pulmonary and extrapulmonary. There was mild interstitial disease associated with minor parenchymal scarring. The examiner noted that there were some pleural plaques, which would be consistent with casual asbestos exposure (50 percent or greater likelihood due to reported asbestos exposure. The examiner opined that it is unlikely that there is pulmonary asbestosis, based on roentgenologic findings. The examiner stated that the Veteran's dyspnea is on the basis of ischemic cardiomyopathy, obesity with mild restriction, ongoing angina and physical deconditioning. VA outpatient records dated in 2010 reflect a diagnosis of asbestos pleural disease. The Veteran's testimony establishes a credible history of asbestos exposure in service. Competent medical evidence establishes findings of pleural plaques consistent with asbestos exposure and a current diagnosis of asbestos pleural disease. Therefore, the Board concludes that service connection for an asbestos-related pulmonary disorder is warranted. ORDER Service connection for an asbestos-related pulmonary disorder is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs