Citation Nr: 1311950	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  10-09 761	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a respiratory disorder, claimed as asbestosis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1942 to November 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2011, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a video-conference hearing.  In April 2011, the Board remanded the case for additional development.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Resolving all doubt in favor of the Veteran, the evidence shows that currently diagnosed asbestosis is related to military service.


CONCLUSION OF LAW

Asbestosis was incurred in service.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


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.  

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).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his 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 at 1316; 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); Jandreau, supra. 

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, 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 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, 7 Vet. App. at 511.  

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.").  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that his currently diagnosed asbestosis is related to asbestos exposure during service.  Therefore, he asserts service connection is warranted.

The relevant evidence of record, which includes private treatment records, hearing transcript, lay statements, and a March 2012 VA medical examination report with addendum, establishes that the Veteran has a current respiratory disability.  Specifically, during the appeal period he has been diagnosed with both chronic obstructive pulmonary disease (COPD) and asbestosis.

The Veteran testified at hearing and in documents of record that he had exposure to asbestos over an 18-month period during military service.  He reports that although his official military occupational specialty was a telephone switchboard operator, after three months of basic training for that specialty, he was moved to the 140th Field Artillery of the 37th Infantry Division, A Battery.  He reports that while attached to the 140th Field Artillery he was regularly assigned to remove hot shells from 105-millimeter artillery after discharge, using asbestos gloves.  He states that the heat from the artillery shells, and the fact that the gloves were worn from extensive use, caused the asbestos fibers to be released into the air and inhaled.  In multiple lay statements he described visible asbestos fibers floating in the air around him.  He contends, therefore, that he was exposed to asbestos during service.

Regrettably, in February 1999 and September 2011 the National Archives and Records Administration and National Personnel Records Center, respectively, indicated that the Veteran's service administrative personnel records were destroyed in the July 12, 1973 fire in St. Louis, Missouri, and were therefore unavailable.  Any exposure to asbestos during service was therefore not officially confirmed.  However, when there is evidence that a Veteran's service personnel records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions.  Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). 

As a lay person, the Veteran is competent to testify with respect to facts and symptoms that are capable of lay observation.  Layno, supra.  The Veteran is therefore competent to testify to events that he experienced during service, including the regular use of asbestos gloves to remove hot shells and inhalation of fibers over an 18-month period.  His numerous lay statements, reports to medical personnel, and testimony have been consistent throughout the appeal period.  As such, the Board considers his assertions to be credible.  Caluza, 7 Vet. App. at 506.  There is no evidence contradicting the Veteran's use of asbestos gloves.  Moreover, in light of his unavailable service personnel records, the Board has a heightened duty to consider the benefit of the doubt rule.  The Board finds that the Veteran was regularly exposed to asbestos for 18 months during service.

As a current disability and an in-service event have been established, the only remaining requirement is a causal nexus between the two.

The claims file includes private treatment records from the Veteran's treating pulmonologist, Dr. L.  In a September 2008 treatment record, he stated that the Veteran had "CT proven asbestos-related lung disease with both calcified pleural plaques and interstitial lung disease."

After service, the Veteran worked for 30 years as a pipe-fitter.  He reported that he did not have any direct contact with or exposure to asbestos in this occupation, but he was present from time to time when other workers were applying asbestos insulation on a job and may therefore have had indirect exposure.  The Veteran testified that he only had direct contact with asbestos when he wore the gloves during service.

Based on review of the claims file, physical examination, interview, and chest x-ray, the March 2012 VA examiner diagnosed asbestosis and COPD, stating that the asbestosis was predominantly responsible for the limitation in the Veteran's pulmonary function.  The examiner stated that the asbestosis was at least as likely as not incurred in or caused by the in-service asbestos exposure.  However, his rationale was: "I am unable to state, without undue speculation, when this Veteran was exposed to asbestos, or, if there was more than one exposure, which one was the source of the asbestosis."  In an addendum dated July 2012, the examiner stated that his previous opinion was an error that it "should have been marked as LESS likely as not...because the exposure to asbestos could not be objectively proven."

The Board does not find this medical opinion probative.  The examiner does not appear to have given due consideration to the Veteran's lay report of his exposure in service, relying solely on the absence of objective evidence of exposure.  As discussed earlier, when the Veteran's service personnel records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule and to explain its findings and conclusions.  The VA examiner's opinion conflicts with the Board's finding that the Veteran was exposed to asbestos in service.  Therefore the Board cannot attribute probative weight to the negative nexus opinion.

Based on the Veteran's credible report of in-service exposure and the medical evidence that his current lung disease is asbestos-related, and resolving doubt in favor of the Veteran, the Board finds service connection for such disability is warranted.  38 U.S.C.A. § 5107(b); 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