Citation Nr: 1311307	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  10-13 593	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for asbestosis.

2.  Entitlement to service connection for asbestosis.


REPRESENTATION

Appellant represented by:	John F. Dowd, Attorney At Law


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

A. M. Clark, Counsel


INTRODUCTION

The Veteran served on active duty from June 1968 to June 1970.
  
These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In January 2013, the Veteran testified before the undersigned during a Board videoconference hearing.  A transcript of the hearing has been associated with the claims file.

Recently, in Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) vacated and remanded an earlier effective date claim because the Board did not discuss the application of § 3.156(b) in its decision, but instead focused on the question of whether statements submitted within the appeal period following a rating decision satisfied 38 C.F.R. § 20.201 and were notices of disagreement. Buie, Vet. App. at 252.  Essentially, the Court indicated that, because the statements were submitted within one year of the corresponding RO decision, the Board should have considered whether the statements included the submission of new and material evidence.  Id.

With respect to his claim for asbestosis, the Veteran initially filed a claim for service connection in August 2005.  The RO, in a May 2006 rating decision, denied his claim on the basis that a nexus between his current disorder and service had not been demonstrated.  The Veteran did not appeal the rating decision and it became final.  

The Veteran subsequently filed another claim for service connection in March 2008.   His claim to reopen was denied in a July 2008 rating decision.  However, a November 2008 private treatment record, dated within 1 year of the rating decision, was subsequently associated with the claims file.  This letter reflects a relationship between the Veteran's current asbestos lung disease and service.  The Board finds this medical record is "new" and "material" to his claim filed in March 2008.  38 C.F.R. § 3.156(b) (2012).

This evidence is thus considered to have been filed in connection with the March 2008 claim.  It is reasonable to conclude that the pending claim would have then remained open until the RO readjudicated the issue in August 2009.  He had one year from the readjudication to submit a notice of disagreement.  As such, his September 2009 notice of disagreement is timely, and the rating decision on appeal, with respect to his asbestos claim, is the one dated in July 2008.  See Buie.  


FINDINGS OF FACT

1.  In a final decision dated in May 2006, the RO denied the Veteran's claim of entitlement to service connection for asbestosis.

2.  New evidence associated with the claims file since the May 2006 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for asbestosis, or raises a reasonable possibility of substantiating that claim.

3.  The Veteran was exposed to asbestos in service.

4.  The competent and credible evidence demonstrates it is at least as likely as not that the Veteran's asbestosis lung disease was caused by his asbestos exposure during active duty service.  



CONCLUSIONS OF LAW

1.  The May 2006 RO rating decision that denied entitlement to service connection for asbestosis final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

2.  As evidence received since the RO's May 2006 denial is new and material, the criteria for reopening the Veteran's claim of entitlement to service connection for asbestosis have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  Asbestosis was incurred or aggravated as a result of in-service exposure to asbestos.  38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Assist and Notify

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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this case, the Board is reopening and 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.  

II. New and Material Evidence

Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002).  When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is 'new' and 'material.'  Smith v. West, 12 Vet. App. 312 (1999).

Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).  When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

VA regulation defines 'new' as not previously submitted and 'material' as related to an unestablished fact necessary to substantiate the claim.  If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In this regard, the Board notes that, in a recent case, the Court clarified that the phrase 'raises a reasonable possibility of substantiating the claim' is meant to create a low threshold that enables, rather than precludes, reopening.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id.

Historically, the Veteran filed a claim for entitlement to service connection for asbestosis in August 2005.  In a May 2006 rating decision, the RO denied service connection for asbestosis, noting that the evidence did not show a relationship between his current disorder and service.  The Veteran did not initiate an appeal.  He also did not submit any new and material evidence with respect to his claim within the applicable one year period.  See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010).  As such, the decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

In March 2008 the Veteran filed his current claim seeking service connection for asbestosis.  This appeal arises from the RO's March 2008 rating decision that denied service connection for asbestosis because new and material evidence had not been submitted. 

The evidence added to the record since the May 2006 rating decision includes a November 2008 statement from the Veteran's private treating physician indicating that the Veteran's reported radiographic findings, in addition to his military occupational history, are certainly consistent with asbestos exposure.  He opined that it was more likely than not that much of this exposure occurred while he was in the Naval Service.  The statement is presumed credible.  Given that the November 2008 VA treating physician has indicated that there is a relationship between the Veteran's current asbestosis and service, a reasonable possibility of substantiating his claim for asbestosis is raised.  

The Board finds that the evidence submitted since the May 2006 RO decision is new in that it was not associated with the claims folder prior to the May 2006 RO decision and material because it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.  The Veteran's claim of entitlement to service connection for asbestosis will be reopened.

III.  Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §  1110 (West 2002).  Generally, the evidence must show:  (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, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that he is entitled to service connection for asbestosis.  He attributes his lung condition to in-service exposure to asbestos.

There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims.  VA has, however, 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 DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.)  See also VAOPGCPREC 4-00 (Apr. 13, 2000).

The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not 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.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h).

In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract.  See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b).

The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f).

Even if a Veteran is found not to be entitled to service connection as due to asbestos exposure, the claim must still be reviewed to determine if service connection can be established on a direct basis.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In terms of his present disability, the Board notes that VA treatment records confirm that the Veteran has a diagnosis of asbestosis.  See November 2009 VA examination.  As such, the evidence demonstrates the existence of a current disorder, meeting the first requirement for the establishment of service connection.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
	
In considering in-service incurrence, the Board has considered that the service treatment records do not confirm that the Veteran suffered from asbestosis.  Post-service records first reflect treatment associated with asbestosis in June 2002. Radiographic studies at that time reflected interstitial fibrosis at the lung bases typical of previous asbestos exposure indicating asbestosis.  See June 2002 private treatment record. 

The Veteran essentially asserts that his asbestosis is the result of exposure to asbestos while serving aboard ships in the Navy.  The Veteran's service records reflect that he served aboard the USS Springfield during his period of active duty.  The Veteran stated in a letter received in January 2006 that he was exposed to asbestos when it would fall onto his bunk.  He indicated that it was on all the piping.  He also reported having to chip it off pipes.  The Veteran acknowledged that he was also exposed to asbestos after the Navy.  See January 2006 statement.   In a letter dated March 2006, the Veteran once again reported asbestos exposure in service.  He indicated that pipes directly above his cot would at times drop white powder on his blanket during ship movements.  He reported having to remove insulating materials from piping, tanks, vessels, etc. while working as a hull tech. Similar contentions were made in a November 2009 statement.

The Veteran testified at his January 2013 BVA hearing that although his Military Occupation Specialty (MOS) was listed as bosun's mate, his actual duties included that of a ship fitter/hull technician.  He indicated that his duties included chipping off old asbestos insulation and installing new asbestos material.  The Veteran is competent to report the presence of asbestos, and there is nothing in the record which diminishes the credibility of these assertions.  The Board finds that the Veteran was exposed to asbestos during service due to the time, place and circumstances of service.  See 38 U.S.C.A. § 1154 (a).

Although there is a several decade gap between discharge and when the available post-service records first reflect a diagnosis of asbestosis, the weight of the competent evidence of record shows that his currently-diagnosed asbestosis was incurred in active service. 

The Board notes that various statements have been submitted by the Veteran's private physician proffering opinions as to the etiology of the Veteran's asbestosis.  In a November 2008 letter, the private treating physician noted that the Veteran had been employed as a ship fitter in the Navy from 1968 to 1970 during which time he did extensive work removing asbestos from pipes.  He noted that the Veteran subsequently did further work as a pipe fitter in civilian life.  The physician stated that the Veteran's reported radiographic findings, in addition to his military occupational history, are certainly consistent with asbestos exposure.  He opined that it was more likely than not that much of this exposure occurred while he was in the Naval Service.  A similar statement was written in June 2009 by his private treating physician.  

In an April 2010 statement, the private treating physician indicated that he had reviewed the Veteran's military service and medical records.  He noted the Veteran's exposure to asbestos in service.  He indicated that presently the Veteran was recovering from an upper respiratory infection and he continued to note chronic cough.  The private physician noted that the Veteran's radiographic findings in addition to his military occupational history are certainly consistent with asbestos exposure and more likely than not the majority of his exposure occurred while in the naval service.  The private examiner's statements essentially link the Veteran current symptomatology to his asbestos exposure in service.  There are no contradictory opinions of record. 

Based on the Veteran's credible testimony, in conjunction with the April 2010 private physician's opinion the Board finds that a grant of service connection for asbestosis is warranted.  Having resolved reasonable doubt in the Veteran's favor, the claim is granted.  








      
      
      
      
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ORDER

New and material evidence has been received in order to reopen a claim of entitlement to service connection for asbestosis.

Service connection for asbestosis is granted.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs