Citation Nr: 1328710 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 13-05 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for asbestosis. ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1974 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Following the May 2013 Supplemental Statement of the Case, the Veteran submitted additional medical opinion evidence, which was not accompanied by a waiver of RO review. However, since the Veteran's substantive appeal was received after February 2, 2013, the Board no longer is required to obtain a waiver of initial review by the agency of original jurisdiction (AOJ). See § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence.) The Board has not only reviewed the Veteran's physical claims file, but also the electronic record maintained in the Virtual VA system to ensure total review of the evidence. FINDING OF FACT The Veteran's currently diagnosed asbestosis is related to in-service asbestos exposure. CONCLUSION OF LAW Asbestosis was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). II. Service Connection for Asbestosis The Veteran contends that his currently diagnosed asbestosis is a result of his exposure to asbestos during service. For the reasons that follow, the Board finds that service connection for asbestosis is warranted. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may 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). 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). 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, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9; see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1MR contains guidelines for the development of asbestos exposure cases. The Manual acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). M21-1 MR, Part IV, Subpart II, Chapter 2, Section C, para. 9 (b). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1 MR, Part IV, Subpart II, Chapter 2, Section C, para. 9 (c). M21-1 MR, Part IV, para. 9 (f) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. M21-1 MR, Part IV, Subpart II, Chapter 2, Section C, para. 9 (d). Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1 MR, Part IV, Subpart II, Chapter 2, Section C, para. 9 (c). M21-1, Part IV, para. 9 (e) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part IV, para. 9 (h) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. Some of the major occupations involving exposure to asbestos include 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos-related claim. See VAOPGCPREC 04-00. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 9) of VBA Manual M21-1 MR, Part IV, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 04-00. The Board finds that the Veteran has a current diagnosis of a lung disorder, specifically asbestosis. After separation from military service, the Veteran was examined by a private physician who opined that the Veteran's chest x-rays revealed interstitial lung disease compatible with asbestosis. See June 2010 Dr. M.K. Chest X-Ray Interpretation. Specifically, Dr. M.K. indicated that he reviewed the lateral chest radiograph for a "B reading interpretation," and found "parenchymal abnormalities consistent with pneumoconiosis." Id. Dr. M.K. noted the Veteran's military history and the Veteran's self reporting of exposure to asbestos. Dr. M.K. is a pulmonologist. In contrast, the Veteran was afforded a VA examination (VAX) which did not yield a diagnosis of asbestosis. In this regard, at the June 2011 VAX, the examiner noted the impression on a CT of the chest without contrast of "unremarkable evaluation of the chest, specifically no evidence of pleural effusion, pleural thickening or calcified plaques in patient with asbestosis per clinical history." See June 2011 VAX. The examiner found that the Veteran "likely has shortness of breath due to progressive weakness and neuropathy of Charcot-Marie Tooth disease." Id. Following the June 2011 VAX, the RO requested clarification of the conflicting VA opinion and private opinion by a "respiratory specialist" instead of a physician's assistant. See August 2011 Deferred Rating Decision. Subsequently, a VA examiner provided an opinion without re-examination of the Veteran. See October 2011 VA Opinion. The examiner noted that the case file was reviewed and commented that the Veteran's private physician failed to conduct a chest CT. The examiner opined that in light of the Veteran's "normal CT scan and normal pulmonary function studies [results]," he could not make a diagnosis for asbestosis. Id. Most recently, the Veteran submitted medical evidence from Dr. M.K. who indicated that he had reviewed the Veteran's case file and x-rays and stands by his original diagnosis of asbestosis. See June 2013 Dr. M.K. letter. Dr. M.K. opined that based on the Veteran's exposure to asbestos during his service in the Navy and his chest x-rays, chest CT scans and PFTs, the Veteran suffers from asbestosis. Dr. M.K. acknowledged the negative CT scans but opined that they "do not rule out the diagnosis." Id. He further explained that "[American Thoracic Society] ATS guidelines for diagnosis are a significant exposure, a latency period of 20 years and an x-ray show[ing] irregular opacities predominately in the mid and lower lung zones." Id. Dr. M.K. opined that the Veteran "has all of these findings [and] restriction on PFTs, rales on exam, clubbing is not required to make the diagnosis." Id. Finally, the examiner stated that a "B reader assessment using comparison films produced by the [International Labour Organization] ILO is the known standard for making the determination of, grading and scoring the presence and profusion of small opacities." Id. The evidence is in equipoise as to whether the Veteran has asbestosis. Dr. M.K.'s opinion was based on a review of the history, an examination and he provided a well-supported rationale for his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Opinions obtained by VA were negative and the reports also included rationale. In that regard, the June 2011 examiner reviewed the history, including chest x-ray results, and determined that the Veteran's shortness of breath was due to progressive weakness and neuropathy of Charcot-Marie Tooth disease. The October 2011 VA opinion found it significant that asbestosis could not be diagnosed in light of a normal CT scan and PFTs. However, Dr. M.K. opined that "all pulmonologists recognize [high resolution computed tomography](HRCT) as the preferred method for assessing the lung parenchyma . . . [and] neither of the 2 CT scans that were done [at the VA facility] w[ere] performed as [a] HRCT algorithm." See June 2013 Dr. M.K. letter. Indeed, the VA facility noted that the Veteran did not undergo a HRTC because he is allergic to the contrast dye and was only evaluated using a non-contrast CT of the chest. See October 2011 VA Opinion. Dr. M.K. reported that x-ray testing showed irregular opacities predominantly in the mid and lower lung zones and opined that the Veteran has asbestosis. As noted previously, the Board finds that the Veteran was exposed to asbestos during service. The Veteran's DD-214 and service personnel records show that he served in the Navy from June 1974 to June 1979, with service onboard the U.S.S. Okinawa. The Veteran's military occupational specialty (MOS) was a hull maintenance technician. See Veteran's DD 214; see also Veteran's September 2010 Statement in Support of Claim. The Veteran stated that "during [his exit interview from the Navy . . . [he] was told that [he] had been exposed to asbestos and it takes 20 years to show up." See Veteran's September 2010 Statement in Support of Claim. He further stated that he was exposed to asbestos when he "[tore] down and re[built] the ship incinerator" and was exposed to Agent Orange "during the evacuation of Cambodia (Operation Eagle Pull) and [Vietnam] (Operation Frequent Wind)." Id. What is more, the RO noted that M21-1MR lists the MOS of hull maintenance technician as having a highly probable exposure to asbestos. See May 2011 RO Request for Examination. Post service, the Veteran worked in a variety of fields, including as a contractor, welder's helper, packing airplane parts and truck driver. See Veteran's September 2010 Statement in Support of Claim. There is no evidence of record that employment in those fields is consistent with exposure to asbestos. Although the Veteran stated that he may have been exposed to asbestos when he worked as an airplane parts packer, the evidence does not affirmatively show such exposure, and Dr. M.K. opined that the Veteran's asbestosis is related to military exposure to asbestos. See June 2013 statement of Dr. M.K. Therefore, applying the doctrine of the benefit of the doubt, the Board finds that service connection for asbestosis is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for asbestosis is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs