Citation Nr: 1310671 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 06-20 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for asbestosis, claimed as due to exposure to asbestos. 2. Entitlement to service connection for a respiratory disorder other than asbestosis, to include emphysema as due to exposure to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied a claim for service connection for asbestosis. The Veteran and his brother provided testimony at a personal hearing before a Decision Review Officer (DRO) at the RO in July 2008. A transcript is of record. The claim for service connection for a respiratory disability, claimed as asbestosis due to exposure to asbestos, was remanded by the Board in January 2009 and April 2011. In October 2012, the Board sought an expert medical opinion. The claim has been returned for appellate review. Given the medical evidence of record and the contentions raised by the Veteran, the Board has recharacterized the claim into two separate claims as listed on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). FINDINGS OF FACT 1. The Board resolves reasonable doubt in the Veteran's favor by finding that asbestosis is etiologically related to the reported in-service exposure to asbestos. 2. There is no competent and probative evidence that the Veteran's other respiratory disorder, diagnosed as emphysema, is etiologically related to active service, to include the reported exposure to asbestos. CONCLUSIONS OF LAW 1. The criteria for service connection for asbestosis, claimed as due to exposure to asbestos, have been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002) 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a respiratory disorder other than asbestosis, to include emphysema as due to exposure to asbestos, have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002) 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Pre-adjudicatory notice was provided to the Veteran in letters dated November 2004, July 2005 and August 2005. Additional notice was provided in a March 2006 letter and the claim was readjudicated in a September 2008 supplemental statement of the case (SSOC). Accordingly, the duty to notify has been fulfilled. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service personnel records and his service, VA and private treatment records have been associated with the claims folder, several VA examinations have been conducted in conjunction with the claim, and an expert medical opinion was obtained. These actions substantially complied with the Board's January 2009 and April 2011 remands, which instructed VA to obtain service personnel records, request any outstanding VA or private medical records, and schedule appropriate VA examinations. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA also substantially complied with the Board's April 2011 remand by requesting the Veteran to provide more information regarding his service on board the U.S.S. Ault while undergoing repair in the dry dock and then obtaining copies of the ship's deck logs from the National Personnel Records Center (NPRC), and asking the Veteran to provide information regarding any lawsuit he had filed in regard to his claimed exposure to asbestos. The Veteran indicated that he was not able to provide any information on his lawsuit due to a confidentiality agreement. See June 2011 statement in support of claim. Although VA did not issue a formal memorandum confirming the Veteran's service on board the U.S.S. Ault while undergoing repair in the dry dock, there is no prejudice to the Veteran in proceeding with the adjudication of his claim as service connection for asbestosis is being granted. Based on the foregoing, all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran seeks service connection for a respiratory disorder, claimed as asbestosis and emphysema due to his alleged in-service exposure to asbestos. In February 2005 and in subsequent statements, he asserted that while onboard the U.S.S. Ault he slept on the top of bunk bed which had a pipe covered with asbestos that fell on him. He also noted that he was exposed to asbestos in the shipyard in Charleston, South Carolina where the ship was overhauled. He noted that the dry dock was a holding tank for asbestos. In June 2005, the Veteran stated that while the ship was in the Charleston shipyard for maintenance in the spring in 1970, insulation from the boiler holes was removed and dragged throughout the ship emitting asbestos fibers. In December 2008, the Veteran indicated that while in the Charleston Naval Shipyard he stripped off the deck top coat paint and deck tread, which contained asbestos that became airborne and blew into his face. In April 2006, the Veteran indicated that he also had asbestos exposure from the shipyard in Long Beach, California and that he worked in the engine room while the ship was in the Charleston shipyard. During a July 2008 RO hearing, the Veteran testified that prior to active duty service he worked as a permit helper for Insulation Service and wore a mask or respirator at all times. He further stated that after service, he worked at U.S. Steel and never touched or handled asbestos products. He indicated that he wore a respirator in dusty areas, and spent 75 percent of his time in the office. In January 2011 he indicated that he worked as a Process Analyzer in the Quality Assurance Department of the Metallurgical Department. The Veteran's brother, who indicates he has a degree in architectural technology and experience with asbestos, reported that he visited the Veteran on board the U.S.S. Ault in March 1969 and recalls a large pipe wrapped poorly in asbestos insulation above the Veteran's bunk, which ran along the entire length of his bed, and seeing a white powder all over the Veteran's brown woolen blanket. He also recalls the Veteran shaking out his pillow and having a white powder fall out, and both of them shaking the white powder off his blanket. He indicated that the Veteran told him this was an everyday occurrence. See August 2006 VA Form 21-4138 from L.A.G.; July 2008 hearing transcript. The Veteran's service personnel records corroborate that he served on board the U.S.S. Ault for almost a year, from September 1969 to July 1970. Deck logs show that from March 1970 to May 1970, the U.S.S. Ault was in the Naval Shipyard in Charleston, South Carolina, for overhaul. Service treatment records contain no record of treatment or findings of asbestosis or other lung condition specifically due to asbestos exposure. The records on file do show, however, that the Veteran was treated for respiratory symptomatology in service. In 1970 he was treated for rhonchi of the left chest, which at that time was diagnosed as viral bronchitis. At the time of his discharge examination in July 1970, he reported respiratory-related symptoms of having had sinusitis, hay fever, and chronic cough, as well as having coughed up blood. The report of the July 1970 examination also noted an abnormality of the lungs identified then as rhonchi of the left chest. VA records show that a CT in September 2003 revealed emphysema, pleural thickening with calcified pleural plaques bilaterally, which is commonly associated with asbestosis. Subsequent medical records, to include x-ray reports, continue to document asbestosis. A VA disability benefits questionnaire in June 2012 shows that the Veteran has emphysema and that asbestosis continues to be a significant contributing factor. A private evaluation in August 2003 indicates that the Veteran worked as a pipe insulator and then worked a couple of years in the naval shipyards. He subsequently worked for about 15 years in the steel industry. The Veteran claimed "he has been exposed to asbestos off and on for many years". In October 2003, VA medical records indicate that the Veteran was pursuing a law suit against a company for asbestos exposure. In February 2009 the Veteran indicated that his lawsuit should not have been documented and further reference to the lawsuit should be dropped. In June 2011 he indicated that he was unable to furnish information regarding his lawsuit concerning asbestos exposure due to confidentiality agreements. The Veteran has provided statements from a private treating physician, Dr. R.G.D., dated in 2006 and 2007. In those statements, Dr. R.G.D. provided a diagnosis that the Veteran has asbestos pleural calcification, which Dr. R.G.D. opined to be due to the Veteran's period of asbestos exposure during service. On VA examination in March 2009, the Veteran reported that while he slept on a destroyer ship there was a deteriorated asbestos insulated pipe over his bunk for eight months, which would shed small pieces of asbestos. He also indicated that his occupation after service had been with a steel company for 15 years, and he also was in an aircraft camp at one point. The Veteran reported smoking 10 cigarettes per day during service and indicated that he stopped smoking when he was separated from active duty service in 1970. Following a medical history review and physical exam, the diagnosis was asbestosis of the lungs, and emphysema of the lungs with fibrotic changes. The VA examiner stated that these were most likely related to service. In an addendum opinion in July 2010, the examiner reviewed the claims folder and reiterated that it is at least as likely as not that the Veteran's current pulmonary asbestosis is related to asbestos exposure in service, as he had prolonged exposure in service and there is no evidence of prolonged exposure following service. The examiner indicated that while the Veteran had a history of smoking, smoking cigarettes does not include bilateral pleural thickening and calcified pleural plaques. Thereafter, a November 2010 addendum was provided based upon another close review of the Veteran's claims file. It was noted that further review of the record shows that the Veteran smoked for 20 to 40 years and continued to occasionally smoke. The VA examiner's supplemental opinion was that it was at least as likely as not that the Veteran could have been exposed to asbestos both during and following the service. According to the examiner, the period of possible exposure in service was less than one year, and the possible exposure after service could have been 15 years. It was considered impossible to state the percentage cause due to service versus post service exposure. However, it was concluded that the likely far greater exposure was probably after service in the steel mills. In an addendum opinion in January 2012, the examiner continued to state that it is at least as likely as not that the Veteran's asbestosis was related to service. While the Veteran has denied having asbestos exposure prior to service and after service, the evidence of record shows that he is suing a company for asbestos exposure and private treatment records show he had reported being exposed to asbestos off and on for many years. Because the private examiner and the VA examiner did not address these facts in rendering their opinions, the Board sought an expert opinion to consider these factors and determine whether the Veteran has a respiratory disability, to include asbestosis, that is related to service. The expert medical opinion was provided in November 2012. Dr. A.B. reported reviewing the medical records presented in the claims folder, to include the Veteran's medical records, radiographic reports, biopsy reports and pulmonary function tests, which formed the basis for the opinion. Dr. B. noted several environmental factors, to include the Veteran's pre-military work history from 1967 to 1968 in the insulation service and steel industry; the Veteran's service onboard the U.S.S. Ault; and the Veteran's post-service occupation in the steel industry for 15 years in an administrative capacity. In his discussion of the Veteran's military service, Dr. B. specifically noted the following: the U.S.S. Ault underwent an overhaul; the Veteran's reported duties of stripping down the entire hull to bare metal, stripping pain, primer and tread with a knuckle buster and needle gun, and sleeping with asbestos insulated pipes above his deck while onboard the ship; the Veteran reported duties of tearing off the insulation of leaking pipes for repair; and the Veteran reported a history of smoking 10 cigarettes per day in service. Dr. B. also noted that further review of the Veteran's medical records indicates he later reported smoking for 20 to 40 years, with admission of continuous smoking. Dr. B. also reported on the Veteran's in-service clinical history, which reflected that he required care for a bronchitis event described as viral in nature. In addition, service treatment records report that the Veteran stated he had episodes of dyspnea and an episode of "spitting up blood" in an environment that was reported to have poor ventilation. His discharge records reported respiratory related symptoms, including sinusitis, hay fever and chronic cough, including an episode of having "coughed up blood." Dr. B. also reported findings from pertinent post-service clinical studies, to include pulmonary function tests from 2003 and 2005, which revealed both obstructive and restrictive components, respectively. FVC and FEV1 were decreased compared to the percent predicted; however, there was significant responsiveness to bronchodilators on the 2003 test, which was not as evident on the 2005 test. Total lung capacity was within the predicted range. Diffusion was decreased but returned to predicated values when adjusted for alveolar volume (DLVA). The ratio of respiratory volume to total lung capacity with a normal total lung capacity suggested air trapping. Findings on the report of a May 2003 chest x-ray included cardiomegaly, chronic obstructive pulmonary disease, fibrotic changes, and pleural plaques. The report of a September 2003 CT scan documented emphysema and pleural thickening with calcified pleural plaques. Findings on the report of a December 2007 CT scan showed pleural plaques. Findings in January 2009 included pleural effusion, fibrin and rare white and mesothelial cells. It was Dr. B's opinion that it is at least as likely as not that the Veteran's respiratory disability, to include asbestosis, was related to both his military service and his pre-military occupational exposure to asbestos. This opinion was based on the duration of exposure in both the military and pre-military environments, the Veteran's report that he had close contact with potential asbestos materials both within his sleeping deck and in the working duties he performed during service, and the Veteran's work in an insulation and steel environment. It was Dr. B's opinion that it was impossible to quantify the intensity of the exposure that could be attributed to his service-related exposure versus his non-service exposure. Both environmental surroundings may have attributed enough cumulative exposure throughout the Veteran's time spent within each respective location. It was Dr. B's opinion that the post-military years (based on the Veteran's reported related occupational duties of assuming a more administrative capacity) decreased the risk of a potential post-military exposure. It was also Dr. B's opinion that the Veteran's emphysema is not related to his asbestos exposure. Dr. B. explained that although asbestos exposure is often, but not always, associated with a restrictive respiratory pattern of impairment, and a mixed picture of restrictive and obstructive component may exist in the various stages of the fibrotic lung, it is far more likely that the Veteran's smoking contributed to the emphysema component appreciated on the pulmonary function tests and radiographic reports. The expert medical opinion provided by Dr. B. is afforded more probative value than the opinions rendered by the VA examiner and the Veteran's private physician, because the expert considered all pertinent and relevant facts related to the Veteran's reported exposure, or non-exposure, prior to, during, and after military service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Given the expert's opinion that it is at least as likely as not that the Veteran's respiratory disability, to include asbestosis, was related to both his military service and his pre-military occupational exposure to asbestos, and that it was impossible to quantify the intensity of the exposure that could be attributed to his service-related exposure versus his non-service exposure because both environmental surroundings may have attributed enough cumulative exposure throughout the Veteran's time spent within each respective location, the Board resolves reasonable doubt in the Veteran's favor by finding that service connection for asbestosis is warranted as etiologically related to the reported in-service exposure to asbestos. 38 C.F.R. §§ 3.102, 3.303. While service connection is warranted for asbestosis as etiologically related to the reported in-service exposure to asbestos, it is not warranted for the Veteran's diagnosed emphysema. This is so because the expert determined that it is far more likely that the Veteran's smoking contributed to the emphysema component appreciated on the pulmonary function tests and radiographic reports than his exposure to asbestos. This is the only probative opinion regarding the etiology of the Veteran's emphysema. See Prejean, 13 Vet. App. at 448-9. In the absence of any competent and probative evidence that establishes an etiological relationship between the Veteran's emphysema and active service, to include the reported exposure to asbestos, service connection is not warranted and the claim is denied. 38 C.F.R. § 3.303. ORDER Service connection for asbestosis is granted. Service connection for a respiratory disorder other than asbestosis, to include emphysema as due to exposure to asbestos, is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs