Citation Nr: 1141890 Decision Date: 11/10/11 Archive Date: 11/21/11 DOCKET NO. 09-02 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a respiratory disorder, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from July 1961 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing from the RO in July 2011. A transcript of the hearing has been associated with the claims file. The issue of service connection for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran was at least as likely as not exposed to asbestos in service, and the weight of the competent evidence is in relative equipoise on the question of whether pulmonary asbestosis is related to the in-service asbestos exposure. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his respiratory disability manifested by pulmonary asbestosis is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA and its implementing regulations require that upon the submission of a substantially complete application for benefits VA must notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the regulations define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the present case in light of the above criteria, and in view of the favorable disposition, the Board finds that all notification and development action necessary to render a fair decision on the claim of service connection for a respiratory disorder has been accomplished. II. Analysis The Veteran contends that service connection is warranted for a respiratory disorder, claimed as due to asbestos exposure during service. 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, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The second and third requirements may be satisfied with evidence of a chronic disease shown during service or a continuity of symptomatology. See 38 C.F.R. § 3.303(b); see Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). In cases where it is claimed that asbestos exposure during service caused a current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). The Board notes that paragraph 7.21(b) of the Manual does not constitute a presumption of asbestos exposure; rather, it is a guideline for adjudication. See VAOPGCPREC 04-2000 (April 13, 2000). According to the administrative protocols, VA must address two sequential questions. First, it must be considered whether service records demonstrate asbestos exposure during active duty. If so, the it must be determined whether there is a relationship between that exposure and the claimed disease. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005) (M-21). With regard to the initial determination, regarding in-service exposure to asbestos, the M21-1 defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos include steam pipes for heating units and boilers; ceiling tiles; roofing shingles; wallboard; fire-proofing materials; and thermal insulation. Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(a). Some of the major occupations involving asbestos exposure include mining; milling; work in shipyards; 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, Part IV, Subpart ii, Chapter 2, Section C (9)(f). High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. During World War II (WWII), several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. Many of these people have only recently come to medical attention because of the potentially long latent period between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(g). Despite the above, there is no presumption that a veteran was exposed to asbestos in service by reason of having been on a ship. Dymant v. West, 13 Vet. App. 141 (1999); aff'd, Dymant v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000 (April 13, 2000). Again, if it is determined that a Veteran was exposed to asbestos during service, the next question for consideration is whether there is a relationship between that exposure and the claimed disease. In this regard, according to the M21-1, 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, Part IV, Subpart ii, Chapter 2, Section C (9)(b). Specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis; gastrointestinal cancer that develops in 10 percent of persons with asbestosis; urogenital cancer that develops in 10 percent of persons with asbestosis; and mesothelioma that develops in 17 percent of persons with asbestosis. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(c). Disease-causing exposure to asbestos may be brief, and/or indirect. Id. Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. Mesotheliomas are not associated with cigarette smoking. Id. The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(d). A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(e). In the instant case, the Board finds that the evidence is at least in a state of relative equipoise in showing that service connection is warranted, for the following reasons. First, the record reflects a diagnosis of pulmonary asbestosis, as indicated in a March 2008 letter written by T.R.H., Jr., M.D. Next, the Veteran credibly and competently testified at his July 2011 Board hearing that he was exposed to asbestos during the first two years of his service as a boiler tender aboard a ship. In this regard, his DD Form 214 identifies his military occupational specialty (MOS) as "SN 3150," or seaman. There is no express indication of work as a boiler tender. However, his DD Form 214 shows that he completed a training course at the National Training Center identified as "BT3," which is consistent with training for a rating of Boilerman Petty Officer 3rd Class. The Board reiterates that common materials that may contain asbestos include steam pipes for heating units and boilers. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(a). Thus, the Board finds that the Veteran was as likely as not exposed to asbestos during service. 38 U.S.C.A. § 1154(a). Having conceded in-service exposure to asbestos, and having established current disability, the Board now turns to the question of whether the current pulmonary asbestosis is due to such exposure. The service treatment records (STRs) do not demonstrate findings consistent with asbestos exposure, but this alone does not constitute affirmative evidence against the claim in light of the established fact that there can be a latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(d). The post-service evidence does not demonstrate, nor does the Veteran contend, that he had continuous symptoms of an asbestos-related respiratory disorder after service. Moreover, the Veteran testified at his July 2011 Board hearing that he worked after service for an insulation company for several years, then went into the field of construction. The Board notes that this post-service work is also consistent with a history of asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9). Nonetheless, the post-service evidence includes a March 2008 letter from Dr. T.R.H., the Veteran's treating private physician for pulmonary asbestosis. That physician indicated the findings of a a chest computed tomography (CT) scan, which showed bilateral calcified pleural plaques, consistent with asbestos exposure. Moreover, Dr. T.R.H. documented the Veteran's statement that he had been "definitely" exposed to asbestos during active duty service in a boiler room. Thus, it was the physician's opinion that the Veteran had evidence of asbestos-related lung diagnosis, which was more likely than not due to his military service. The Board finds, upon careful consideration, that the private physician's March 2008 letter is probative, as it provides a clear and unequivocal opinion, which was based on an accurate factual basis. Although the record does not actually establish that the Veteran was "definitely" exposed to asbestos, as explained above, the circumstances of his service make that possibility likely enough that exposure has been conceded. Thus, the examiner's opinion was based on a factual predicate that substantially consistent with the record. Moreover, the physician's opinion is uncontroverted by any other evidence in the claims file. In light of this record, the Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran's pulmonary asbestosis is as likely as not due to asbestos exposure during active duty service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303; see also, e.g., Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009) (the Board may not seek further evidentiary development if a veteran has presented favorable, uncontroverted medical evidence and the evidence, along with the other evidence of record, is sufficient to allow the Board to make a fully informed decision). Accordingly, by extending the benefit of the doubt to the Veteran, service connection is warranted. ORDER Service connection for pulmonary asbestosis is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND Upon review, the Board finds that further development is necessary with respect to the claim of service connection for hearing loss, as the record is not adequate to reach a fully informed decision. The Veteran testified at his July 2011 Board hearing that he was exposed to in-service noise under two circumstances. First, he worked in a ship's boiler room, which involved very loud noise. Second, he had to handle shells during shooting exercises. His testimony is competent and credible evidence of noise exposure during service. 38 U.S.C.A. § 1154(a); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). The Veteran also testified at his Board hearing that he worked in construction after service, and he first started noticing hearing loss during the twenty years preceding the hearing. The Board notes that this testimony does not indicate a continuity of post-service hearing loss symptomatology. Rather, twenty years prior to the July 2011 Board hearing is no earlier than the 1990s, which is over 26 years after his service separation. Nonetheless, the Veteran was evaluated by a private (non-VA) ear, nose, and throat physician (ENT) in January 2008. In support of the instant claim, the ENT documented the Veteran's complaints of exposure to loud noise during active service, and hearing loss for the past 10 years or longer. The Veteran was unable to give an exact date of onset. The results upon audiogram showed significant, severe sensorineural hearing loss (SNHL). The ENT stated: "I do feel that [the Veteran's] hearing loss could be the result of loud noise exposure, which, combined with his age, are the most common reasons for high frequency hearing loss." The Board notes that the January 2008 ENT's opinion is inadequate to decide the claim for two reasons. First, the ENT did not list the auditory thresholds results from the audiogram. Thus, the Board is unable to determine whether the audiogram shows impaired hearing meeting the requirements to be a disability for the purposes of the laws administered by VA. See 38 C.F.R. § 3.385. (a hearing loss disability for VA purposes requires the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.); see also See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Second, the ENT's opinion is equivocal and speculative, which does not provide the degree of certainty required for medical nexus evidence. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Moreover, while he related the Veteran's present hearing loss to "chronic noise exposure when he was younger," he did not expressly indicate that he was referring to in-service noise exposure, which of course is a critical element in substantiating the claim. Despite the flaws noted above, the ENT's opinion, when considered in light of the remaining evidentiary record, provides evidence of a current hearing loss disability and an indication that the present hearing loss disability may be associated with the Veteran's noise exposure during service. Since the record otherwise lacks sufficient competent evidence upon which the Board can make a decision, remand for a VA examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, remand is necessary to afford the Veteran an appropriate VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Douglas, 23 Vet. App. 26 (Even if a veteran has presented favorable, uncontroverted medical evidence, the Board may seek further evidentiary development if the favorable evidence, along with the other evidence of record, is not sufficient to allow the Board to make a fully informed decision; the additional development must be undertaken in a "an impartial, unbiased, and neutral manner."). Accordingly, the issue is REMANDED for the following action: 1. The RO should send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all health care providers who may have records pertinent to the remanded claim of service connection for hearing loss, including Dr. Inman. 2. After the Veteran has signed any necessary releases, the RO should make as many attempts as necessary to obtain all pertinent records identified by the Veteran, if not already associated with the claims file. All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in order to allow him the opportunity to obtain and submit those records for VA review. 3. After completing the above requested development, the RO should undertake any further development warranted by the record. Then, the RO should arrange for the Veteran to undergo an appropriate VA audiologic examination to determine the nature and likely etiology of the claimed hearing loss. The pertinent evidence in the entire claims file, including a copy of this remand, must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies, to include audiometry and speech discrimination testing for each ear. Then, the examiner is asked to report in detail all audiometry test results and specifically indicate whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a hearing loss disability in either ear that had its onset during service, became manifest within a one-year period following his discharge from service, or is otherwise causally related to any event or circumstance of his active service. In making this determination, the examiner is asked to assume that the Veteran was exposed to significant noise during service. The examiner is also requested to address the January 2008 letter from a private ear, nose, and throat physician, who indicates that the Veteran's hearing loss "could be" due to his noise exposure "when he was younger." Finally, the examiner is asked to discuss the Veteran's own assertions regarding the onset and continuity of his symptomatology since service. The examiner is requested to prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. 4. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs