Citation Nr: 1301421	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  05-17 496A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for asbestosis.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from December 1973 to December 1975 and from January 1982 to February 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim on appeal.

The Veteran was scheduled for a hearing before the Board at the RO in January 2010; he failed to report for the hearing.  As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn.  See 38 C.F.R. § 20.704.

In December 2010, the Board remanded the issue of entitlement to service connection for asbestosis.  The Board then requested a VHA opinion in August 2012; that opinion was issued in January 2013.  The case has returned to the Board for appellate review.


FINDING OF FACT

Asbestosis had its onset in service.


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, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

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

The Veteran contends that he was exposed to asbestos in service, and that his current condition is causally related to that exposure.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

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 United States Court of Appeals for the Federal Circuit (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.").

The Board finds that the evidence supports an award of service connection for asbestosis.  Although the Veteran's treatment records do not show asbestosis or any other chronic respiratory condition during active service, the Board has considered that for many asbestos-related diseases the latency period varies from ten to forty-five or more years between first exposure and development of disease.  See VA Adjudication Procedure Manual Rewrite (M21-1MR) at IV.ii.2.C.9.d.

Furthermore, the Veteran has provided competent lay evidence that he inhaled asbestos while aboard the U.S.S. Forrestal and that such exposure is consistent with his service.  See, e.g., February 2006 substantive appeal.  The Veteran is competent to report on all things of which he has personal knowledge derived from his own senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2).  The Board finds that the Veteran's lay evidence is credible based on its facial plausibility and internal consistency.

The Board further finds that the most probative evidence of record demonstrates that the Veteran has asbestos-related lung disease.  A November 2003 chest x-ray revealed that the Veteran had mild prominence to interstitial marking in the lungs bilaterally.  A December 2003 chest x-ray showed that the Veteran's lungs were free from infiltrates, effusions, and edema.  A May 2004 pulmonary function test was described as being consistent with mixed obstructive and restrictive lung disease.

A June 2005 chest CT showed that the Veteran had increased interstitial densities in the lungs which can reflect fibrosis and scarring.  No suspicious pleural plaques or other lesions were seen.  An August 2005 VA pulmonary consult reflects that the Veteran has smoked less than one pack of cigarettes per day since the age of 14.  After examining the Veteran and evaluating the June 2005 chest CT, a clinician diagnosed the Veteran as having an abnormal chest CT that was suggestive of an inflammatory disease, a history of asbestos exposure, and chronic obstructive pulmonary disorder (COPD).

In August 2005, the Veteran's private physician, Dr. H., concluded that the Veteran has COPD, sleep apnea, and asbestosis.

A September 2005 VA chest CT reflects that the Veteran's lungs showed no definite evidence of pulmonary embolism.  There were chronic interstitial changes.  Superimposed on these changes were a bilateral interstitial infiltrate "which may indicate and acute pneuomonitis versus a bronchopneumonia."  A January 2006 VA pulmonary note showed that the Veteran "probably does not have any progressive fibrotic lung disease, [but he] may have bronchiectasis."

In January 2011, a VA examiner opined that the Veteran does not have asbestosis.  The examiner further found that the Veteran did have some other type of fibrosis, but that it was not related to his active service.  In a March 2012 addendum, the examiner stated that, despite his earlier finding, there is no evidence that the Veteran has any fibrosis or asbestosis.

In January 2013, a VHA pulmonologist was asked to review the complete record, including the evidence documented above, and ascertain whether it is at least as likely as not that the Veteran has any respiratory condition that is related to his service, to specifically include his in-service asbestos exposure.  The VHA pulmonologist opined-based on an extensive review of the claims file, a survey of the objective findings of record, and the Veteran's report of asbestos exposure in service-that it is at least as likely as not that the Veteran has asbestos-related lung disease.

Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).  The Board finds that the January 2013 VHA examiner's positive nexus opinion is the most probative based on her expertise as a pulmonologist, her thorough review of the Veteran's medical history in the claims file, and her acceptance of the Veteran's competent and credible lay evidence regarding exposure to asbestos in service.

Based on a review of the evidence, the Board finds that service connection is warranted for asbestosis.  In reaching this determination, the Board finds the Veteran's reports of exposure to asbestos during his service aboard ship are both competent and credible.  Moreover, when combined with the known latency period for asbestos-related diseases, as well as the January 2013 VHA pulmonologist's positive nexus opinion, the Board finds that the evidence is at least in equipoise as to whether the Veteran's asbestosis is related to service.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for asbestosis.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for asbestosis is granted.



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



Department of Veterans Affairs