Citation Nr: 1327943 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-19 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a respiratory disorder, to include asbestosis, claimed as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to August 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The Board has recharacterized the issue on appeal, which was formerly listed as entitlement to service connection for chronic obstructive pulmonary disease (COPD), to more accurately reflect both the Veteran's actual diagnosis and the Veteran's contentions as presented at his February 2013 Board hearing. The record reflects that, following his February 2013 Board hearing, the Veteran submitted additional evidence to the Board for which he had waived initial review by the agency of original jurisdiction during his hearing. See 38 C.F.R. § 20.1304 (2012). 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 It is at least as likely as not that the Veteran has asbestosis that is related to his in-service asbestos exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the Veteran's asbestosis is due to his in-service asbestos exposure. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It appears in this case that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that records on file are sufficient to resolve the matter in the Veteran's favor. Any defect regarding VCAA must be considered harmless given the favorable action taken herein below. II. Service Connection The Veteran has claimed entitlement to service connection for an acquired respiratory disorder, to include asbestosis. He essentially contends that this disability occurred as a result of in-service asbestos exposure. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea; end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is preservice or post service occupational or other asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9.f. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the Court also indicated that, while the veteran, as a lay person, is not competent to testify as to the cause of his disease, he is competent to testify as to the facts of his asbestos exposure. See McGinty, 4 Vet. App. at 432 (1993). In the case at hand, the Veteran reported on his April 2010 substantive appeal that he "was exposed to asbestos dust from wheel brakes on aircraft" during service. The Veteran's service personnel records reflect that he served as a special vehicle repairman during service. Given these duties, the Board will presume for purposes of this decision that the Veteran was exposed to asbestos in service. The evidence also reflects that the Veteran has a current diagnosis of asbestosis that is based on x-ray evidence of interstitial lung disease. Private medical records from February 2000, December 2002, and April 2009 opine with a reasonable degree of medical probability that the Veteran has asbestosis, with the April 2009 report expressly finding "bilateral interstitial fibrosis asbestos related lung disease." The February 2000 and December 2002 records note a January 2000 chest x-ray report that, although "[f]ilm quality [was] grade 3 due to overexposure, sub-optimal contrast and right scapular overlay," "demonstrates interstitial changes in the mid and lower lung zones bilaterally." The April 2009 physician cited separate chest x-ray findings from a physician and Board Certified Radiologist showing "bilateral interstitial fibrosis, which is causally related to asbestosis, provided the patient's exposure history and period of latency are appropriate." The Board notes that the Veteran did undergo a VA examination in February 2010 and that COPD, but not asbestosis, was diagnosed based, in part, on chest x-ray findings. The Board finds, however, that the April 2009 private medical record, in particular, contains an asbestos diagnosis that satisfies the proper development protocol of the M21-1MR. The Board thus finds that the record contains probative medical evidence of a current asbestosis for purposes of adjudicating this claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). The only remaining question is whether there is an etiological relationship between the Veteran's asbestosis and his verified in-service asbestos exposure. The record reflects that, in addition to his work with asbestos as a mechanic and around fire-proofing equipment in service, the Veteran has reported (such as in the December 2002 private medical record) that he "has a history of exposure to asbestos materials while working in the textile industry from 1954 to 1955 and again from 1964 to 1998. He states he ran drawing, laid up roping, blew off machines, and he was a production worker and supervisor." The December 2002 physician opined that, "[b]ased on [the Veteran's] history of asbestos exposure with a latency period of 48 years, abnormal chest x-ray, and decrease in diffusion capacity, I have determined within reasonable medical probability that he has asbestosis." A February 2001 private medical record notes that the Veteran "did work in Hogansville asbestos plant, worked as a mechanic in the Air Force and blew off brake shoes on heavy equipment." The April 2009 physician noted the same medical history as was reported in the December 2002 record and opined that, "[b]ased upon the medical history given by this patient, the abnormal chest x-ray, the patient's asbestos exposure, and adequate latency, it is my opinion to a reasonable degree of medical probability that this patient suffers from bilateral interstitial fibrosis asbestos related lung disease." A February 2013 private physician's letter notes the Veteran's "significant asbestos exposure through his job in the military where he had to change brake shoes for large industrial vehicles" and opined "that some of his respiratory dysfunction could be attributable to asbestos exposure." Resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for asbestosis as a result of in-service asbestos exposure is warranted. In doing so, the Board acknowledges that the record indicates that the Veteran may have had significant and lengthy asbestos exposure outside of service. The Board notes, however, that the nature of the Veteran's duties as a special vehicle repairman during his four years of military service has led VA to concede that the Veteran was, in fact, exposed to asbestos in service. The Board further notes that several of the Veteran's private physicians, in arriving at the asbestosis diagnosis, have alluded to the timing of the Veteran's in-service asbestos exposure as supporting an asbestos diagnosis. Based on the above, the Board finds it reasonable to conclude that the Veteran's four years of in-service asbestos exposure have at least contributed to his current asbestosis. In short, the Board finds that the evidence is at least in relative equipoise with respect to whether the Veteran has a current diagnosis of asbestosis that is related to in-service asbestos exposure. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for asbestosis is warranted. ORDER Entitlement to service connection for asbestosis, claimed as due to in-service asbestos exposure, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs