Citation Nr: 1306708 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-43 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Navy from July 1970 to July 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for asbestosis (listed as pneumoconiosis, claimed as an asbestos condition). In January 2012, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. The issue has been recharacterized to comport with the evidence of record. FINDING OF FACT The Veteran's current asbestosis had its onset during active service. CONCLUSION OF LAW The criteria for service connection for asbestosis have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for asbestosis. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. 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). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. In cases involving asbestos exposure, 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). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. See M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). Additionally, the Board must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997). VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre- service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. For the showing of chronic disease in service, there must be 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, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Veteran contends that he has asbestosis that is related to service. He specifically maintains that he incurred asbestosis as a result of exposure to asbestos while serving aboard the USS Grand Canyon in the Navy. The Veteran reports that he worked in the pipe shop while he was aboard the USS Grand Canyon. He indicates that his duties included removing the piping system on the ship and replacing the piping system with new, or rebuilt, pipes. He states that asbestos was on the pipes and that he was also exposed to asbestos in other areas of the ship. The Veteran further reports that he worked on the piping systems of other Navy ships that were docked alongside the USS Grand Canyon. He essentially indicates that he was solely exposed to asbestos while serving in the Navy. He reports that he worked for a plumbing company as a helper and cleaning up prior to his period of service for approximately two months, but that he did not work around any piping systems or around asbestos. The Veteran also maintains that although he may have worked in subsequent occupations that had asbestos insulation, he was only actually exposed to asbestos during his period of service. The Veteran served on active duty in the Navy from July 1970 to July 1972. His DD Form 214 lists his occupational specialty as a "MR-4400", with a related civilian occupation listed as a machinist. The Veteran had one year and nine months of foreign and/or sea service. His service personnel records indicate that he served aboard the USS Grand Canyon from September 1970 to July 1972. The Veteran's service personnel records do not specifically demonstrate that he was exposed to asbestos as part of his duties. Given his shipboard duties in the Navy, however, the Board will address the Veteran's claim as though he had some asbestos exposure during service. The Veteran's service treatment records do not specifically show complaints, findings, or diagnoses of any lung problems, including any asbestos-related lung problems such as asbestosis. Post-service private treatment records show treatment for disorders including asbestosis. A November 2009 report from A. H. Mardini, M.D., from the Concord Medical Center, a division of the Summit Medical Group PLCC, noted that the Veteran was seen for an asbestos physical examination. The Veteran reported that his asbestos exposure began in 1968 when he worked as a pipefitter at Tennessee Eastman. He stated that when he was in the Navy from 1970 to 1972, he worked as a shipfitter and that he was exposed to asbestos while working with pipes. The Veteran further indicated that he worked at various Tennessee Valley Authority jobs as a pipefitter from 1972 to 2008 and that he was exposed to asbestos insulation. The Veteran reported that he continued to have exertional dyspnea. He stated that he had never smoked and that he did not drink alcohol. It was noted that the Veteran had no chest pain and that he was taking blood pressure and cholesterol medication. Dr. Mardini reported that a July 2009 chest X-ray showed parenchymal abnormalities consistent with pneumoconiosis in Veteran's bilateral lung fields, with no pleural abnormalities and no other abnormalities. As to an assessment, Dr. Mardini indicated that it was his opinion, within a reasonable degree of medical certainty, that the Veteran had asbestosis as manifested by parenchymal abnormalities by chest X-ray, as well as by an occupational history of exposure to asbestos and by the latency period. A January 2012 statement from Dr. Mardini noted that the Veteran worked in the Navy as a shipfitter from 1970 to 1972. Dr. Mardini indicated that during the Veteran's time in the Navy, he was exposed to asbestos materials which could be a contributing factor to his asbestosis diagnosis. The medical evidence of record shows that the Veteran has been diagnosed with asbestosis. Additionally, in a January 2012 statement, Dr. Mardini specifically indicated that the Veteran's exposure to asbestos materials in the Navy could be a contributing factor to his current asbestosis. There are no negative medical opinions of record regarding the etiology of the Veteran's asbestosis. As the Veteran was exposed to asbestos in service, and he has been diagnosed with asbestosis, the Board concludes that the Veteran's asbestosis is, at least in part, due to or a result of in-service asbestos exposure. Therefore, after considering all the evidence and resolving any doubt in the Veteran's favor, the Board finds that the Veteran has asbestosis that had its onset during his period service. Asbestosis was incurred in active service and service connection is warranted. ORDER Service connection for asbestosis is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs