Citation Nr: 1145482 Decision Date: 12/13/11 Archive Date: 12/21/11 DOCKET NO. 04-18 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lung condition, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from July 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, determined the Veteran had not submitted new and material evidence to reopen a claim of service connection for a lung condition. In a September 2007 decision, the Board determined new and material evidence had been submitted to reopen the claim of service connection for a lung condition. As to the merits of the reopened claim, the Board remanded the claim for additional evidentiary development, which was completed. In October 2009, the Board again remanded the claim for additional development. All development has been completed and the claim is ready for adjudication. FINDING OF FACT The Veteran was likely exposed to asbestos during service which likely contributed to his current lung disease. CONCLUSION OF LAW The criteria for service connection for a lung condition, to include as due to exposure to asbestos have been met. 38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence 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 Secretary promulgated any regulations concerning such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court of Veterans Appeals (now the Court of Appeals for Veterans Claims and hereinafter the Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV, lists some of the major occupations involving exposure to asbestos including 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. 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. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). With respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in service due to having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000). 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 is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran seeks service connection for a lung condition, to include as secondary to asbestos exposure during service. He claims that his MOS as Aircraft Engine Repairman exposed him to asbestos fibers, which caused or contributed to his current lung disability. Service personnel records confirm that the Veteran's MOS was Aircraft Engine Repairman. However, records do not confirm that his duties exposed him to asbestos. In October 2009, the Board remanded the matter for additional research to determine whether the Veteran was exposed to asbestos during the course of his service. In August 2011, the Department of the Army ("Department") indicated that the CH-34 and H-19 had asbestos containing parts around the exhaust vent. Technical Manuals during that period did not show asbestos as a component but asbestos was not known as a serious hazard at that time. The Department said that the Huey (UH-1 series) engine produced a lot of heat, so it would make logical sense that it probably used asbestos materials as a heat shield; however, research could not confirm. The Department could not verify that other military helicopters (UH-1B, UH-1D, UH-1H, AH-1, OH-13) or military aircraft submitted for research had asbestos containing materials; however, according to the Safety Office of the US Army Aviation and Missile Command, even if the aircraft came from the original manufacturer asbestos free, routine maintenance may have inserted asbestos-containing parts. More importantly, the Department found a Lycoming manual, which indicates that asbestos was present in exhaust gaskets during the time that the Veteran served but that it had since been replaced with other materials. In October 2010, the Veteran had a VA examination. The examiner reviewed the claims file and noted that the Veteran reported having had an abnormal chest x-ray in the 1970s. He told the examiner that his duties in service included replacing the asbestos insulation in helicopters. This process involved removing old "ropes" of asbestos from grooves in engine compartments, blowing out the dust and remaining particles with an air compressor, then replacing the asbestos. After service, in the early 1970s, he worked for a few months sandblasting, but wore protective gear. Pulmonary function tests showed moderate to severe restriction. X-rays showed scarring of the right mid-lung zone, scarring involving both lung bases. The examiner stated that x-rays are more consistent with silicosis but that pleural effusions would be highly unusual in silicosis. He also found that some of the x-ray findings are consistent with asbestos exposure and asbestos related lung disease including the pleural effusions. In a December 2010 addendum, the examiner stated that if the Veteran was exposed to asbestos in service, then it is more likely than not that his exposure contributed to his lung disease. He could not give a more definitive answer because he could not determine if the Veteran was exposed to asbestos. In an undated statement, the Veteran said asbestos seals were used in the engines of Bell Helicopter and Lycoming aircraft. During his August 2007 testimony, the Veteran stated that he was exposed to asbestos during service while changing asbestos seals. He also noted that he transported by ship to Vietnam. In November 2006, he provided the name of the company that made the parts he used while changing hot end seals on aircraft during service. In an August 2006 statement, he stated that he was exposed to asbestos seals on aircraft five times per day for two years while in service. He also stated that during his sandblasting job, he was exposed to sand dust once or twice per month for eight months. He was hired as a cleaner and his duties rarely exposed him to sand dust. A June 2006 VA examination report notes that the examiner reviewed the claims file; however, his opinion was based only on the Veteran's assertion that he was exposed to asbestos during transit to Vietnam on the USS Card. It was subsequent to this examination that the Veteran researched his in-service duties and discovered possible asbestos exposure while performing his MOS duties. In July 2004, a private physician indicated that the lung disease could possibly be related to asbestos exposure. Based on the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran was exposed to asbestos during service. Because research from the Department of the Army confirms that certain aircraft included parts made of asbestos, because the Veteran has alleged that he repaired those types of aircraft during service, and because the Veteran is competent to report his experiences during service, the Board finds that he should be given the benefit of the doubt that he was exposed to asbestos while performing repairs and maintenance of aircraft during service. Accordingly, since the Board is giving him the benefit of the doubt that he was exposed to asbestos during service, based upon the October 2010 VA examiner's opinion and addendum, the Board finds that service connection for a lung condition, to include as due to exposure to asbestos is warranted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a). In this case, 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 a lung condition, to include as due to exposure to asbestos is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs