Citation Nr: 1237774	
Decision Date: 11/05/12    Archive Date: 11/09/12

DOCKET NO.  10-43 040	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for asbestosis as secondary to exposure to asbestos. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

N. Lee, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1962 to April 1966.  

This appeal to the Board of Veterans' Appeals (Board) arises from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  This decision denied entitlement to service connection for asbestosis as secondary to asbestos exposure in service.


FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, his asbestosis is related to his in-service asbestosis exposure. 


CONCLUSION OF LAW

Asbestosis was incurred in service.  38 U.S.C.A. § 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants service connection for asbestosis.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims.  However, the VA Adjudication Procedure Manual, M21-MR, Park IV, Subpart ii, Chapter 2, Section C, provides information concerning claims for service connection for disabilities resulting from asbestos exposure.  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, Part IV, Subpart ii, Chapter 2, Section C, Subsection (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. at Subsection (a).  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.  Id. at Subsection (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.  Id. at Subsection (b).  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).  Id. at Subsection (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).  Id. at Subsection (d).  

The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether 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.  Id. at Subsection (h). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

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 to the Veteran. 

On review, the Board finds that the criteria for service connection for asbestosis have been met.  In this regard, in-service asbestos exposure has been conceded, and there is evidence of a current pulmonary disability, as the Veteran was diagnosed with asbestosis by a December 2008 computed tomography (CT) scan.  

The Veteran does not contend nor does the evidence show that he had pulmonary complaints, treatment, or diagnoses during service.  Rather, he maintains that he developed asbestosis as a result of in-service asbestos exposure while working as a boiler room technician during service. 

The Board acknowledges that as a boiler technician, he was likely exposed to asbestos.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (f) ("Some of the major occupations involving exposure to asbestos include ... insulation work ... and manufacture and installation of products such as ... pipe products, and military equipment").

After service, the Veteran spent over 30 years working in the chemical industry; his work involved him being exposed to asbestos dust, asbestos insulated equipment, sulfuric acid, and butadiene gas.  Thus, in addition to conceding in-service exposure, the Board acknowledges that the Veteran's post-service exposure to asbestos and other harmful chemicals.  

A January 2003 chest x-ray shows "left pleural reaction that is new" - a chest CT scan showed loculated pleural effusion.  A follow-up CT scan performed in December 2003 showed "bilateral pleural plaques, bullous changes in lungs and areas of fibronodular scarring."  An addendum written that same month comparing the January and December 2003 CT results showed a reduction in pleural fluid, but indicated that bilateral pleural plaques were unchanged.  

In November 2008, the Veteran was afforded a VA pulmonary examination.  The VA examiner reviewed the claims file, interviewed the Veteran and performed a clinical evaluation.  The examiner stated that the chest x-ray was "only suggestive of COPD."  She indicated that a CT scan was necessary to provide a non-speculative opinion as to whether the Veteran had asbestosis.  In December 2008, a CT scan with IV contrast was performed to clarify the diagnosis.  It showed diffuse emphysematous changes predominantly in the upper lobes; minimal pleural fibrosis with calcifications; and pleural subtle platelike bibasilar atelectasis.  Based upon this evidence, the examiner authored an addendum to the November 2008 VA examination diagnosing the Veteran with asbestosis.  See March 2009 Addendum Report.  

As noted above, the Veteran was likely exposed to asbestos during service.  The record shows, however, that he also has post-service asbestos exposure.  He has been diagnosed as having asbestosis, which developed well within the latency and exposure factors discussed in the VA Adjudication Procedure Manual.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h).  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted because it is at least as likely as not that a relationship exists between the Veteran's in-service asbestos exposure and his developing asbestosis many years after service. 


ORDER

Service connection for asbestosis is granted. 



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs