Citation Nr: 1323280 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 12-29 834 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for asbestosis. 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). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, he was exposed to asbestos while in service. 2. The competent and probative evidence of record associates the Veteran's current diagnosis of asbestosis with associated bilateral pleural plaques to his exposure to asbestos during military service. CONCLUSION OF LAW The Veteran's current asbestosis was incurred during his military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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). The Board is granting in full the benefit sought on appeal. As a result, any error committed with respect to either the duty to notify or the duty to assist was harmless. II. Service Connection for Asbestosis Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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 - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2008). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran is seeking service connection for asbestosis. He essentially contends that this disability was caused by exposure to asbestos during his military service. The record reflects that the Veteran underwent a VA examination in October 2011. The examiner noted a diagnosis of asbestosis with associated pleural plaques. This diagnosis is consistent with the findings of a private physician in an October 2010 report. As a result, element (1) is satisfied. With regard to element (2), the Veteran alleges that he was exposed to asbestos while in service. The United States Court of Appeals for Veterans Claims (previously the United States Court of Veterans Appeals before March 1, 1999) has observed that there has been no specific statutory or regulatory guidance with respect to claims for service connection for asbestos-related diseases. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, the Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides guidance for asbestos related compensation. The DVB circular was included verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. These provisions have since been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The DVB Circular and the Manual M21-1MR do not create a presumption of exposure to asbestos solely from a particular military occupation specialty. They provide adjudicators with information regarding asbestos exposure and the resulting diseases. Here, the Veteran served as a welder. While there may be no presumption, the Board finds that it is not inconceivable that he was exposed to asbestos during the course of performing his duties. As a result, the Board concedes exposure to asbestos during service. Consequently, element (2) is met. Regarding element (3), the nexus, the competent and probative evidence shows that the Veteran's in-service exposure to asbestos at least as likely as not contributed to his current diagnosis. The Manual M21-MR acknowledges that inhalation of asbestos fibers and/or particles can result in a wide array of medical issues, most commonly interstitial pulmonary fibrosis, or asbestosis. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). VA must determine whether there is evidence of exposure before, during, or after service; and whether the disease is related to exposure in service. See Dyment, 13 Vet. App. 141; Nolen, 12 Vet. App. 347. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and the development of the disease. Additionally, an asbestos related disease may develop due to brief exposure. The 2011 VA examiner found that the Veteran had a history of exposure to asbestos during service, which is consistent with the Board's conclusions herein. The VA examiner also found radiographic evidence of bilateral pleural plaques with associated calcification, which the examiner noted to be in keeping with asbestos-related pleural disease. Based on these findings, the examiner concluded that it is at least as likely as not that the current diagnosis was a result of in-service exposure to asbestos. The Board recognizes that the Veteran continued work as a welder for a long period of time after service, which raises the possibility of substantial asbestos exposure after discharge. However, given the potentially long latency period between asbestos exposure and the development of a disease, the Board concedes that it would be virtually impossible to disassociate to what degree his current disease is a result of post-service exposure rather than in-service exposure, particularly given that even brief exposure can lead to related disease. Therefore, having afforded the Veteran the benefit of the doubt, the Board concludes that the Veteran's in-service exposure to asbestos is related to the Veteran's present disability, satisfying element (3). Thus, service connection for asbestosis is granted. ORDER Service connection for asbestosis is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs