Citation Nr: 1332080 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-37 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for respiratory disability, to include pleural plaques, to include as due to exposure to asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from April 1948 to April 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of this case belongs to the RO in Montgomery, Alabama. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The record contains competent and credible evidence that the Veteran was exposed to asbestos during his active Naval service. 2. A private examiner has indicated that the Veteran has pleural plaques likely caused by exposure to asbestos. CONCLUSION OF LAW Service connection for pleural plaques is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran was notified via a letter dated in February 2008 of the criteria for establishing service connection (including for disability claims based on exposure to asbestos), the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. VCAA notice was completed prior to the initial AOJ adjudication of the claim. Pelegrini. Duty to Assist Service treatment records are associated with the claims file, as are identified private medical records. No outstanding records have been indentified that have not otherwise been obtained. The Veteran's representative has essentially indicated that the Veteran should be scheduled for a VA examination with a medical opinion regarding a possible relationship between the disability on appeal and the Veteran's military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds, however, that such an examination is not necessary to decide this claim as the evidence of record contains sufficient competent medical evidence to decide the claim. In this regard, the Board notes that the Veteran's private physician performed a contemporaneous examination of the Veteran and provided an opinion that addressed the medical matters raised by this appeal. As such, the Board finds that affording the Veteran an examination for the purpose of obtaining an opinion is not appropriate in this case. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). To establish a right to compensation for a present disability, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). VA is required to evaluate 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. 38 U.S.C.A. § 1154(a) (West 2002). The Board notes that although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The Veteran asserts that he has a respiratory disability related to exposure to asbestos during his active service. The Veteran contends that he acquired a respiratory condition during his military service in the Navy, when he worked as a Machinist's Mate aboard ship and was exposed to asbestos. The Veteran's service treatment records do not reflect any complaints or diagnoses of respiratory disability. The Veteran's March 1952 service separation examination revealed no respiratory disability. A November 2006 private examination report (LP, MD) revealed that the Veteran had dyspnea on exertion; the Veteran's chest was clear without rales, rhonci, or wheezing. There was also no history of chronic obstructive pulmonary disease (COPD). A computed tomography (CT) scan report showed pleural plaques, but no interstitial disease. Pulmonary function tests (PFTs) showed small airways obstruction and diminished DLCO but no evidence of restrictive lung disease. The impression was as follows: My impression is that [the Veteran] certainly has evidence of asbestos exposure in that he has pleural plaques. He does not have evidence of asbestosis in that he does not have intestinal lung disease, restrictive lung disease, or respiratory symptoms consistent with asbestosis. In the clear sense of the word he has asbestos injury manifested by pleural plaques, but not clear cut asbestosis as defined by interstitial lung disease. In a hand-written addendum the Veteran's private physician (Dr. LP) "does not have asbestosis and will not develop" into it. The VA Adjudication Procedure Manual, M21-1 (M21-1), provides guidance on how to adjudicate claims based on exposure to some environmental hazards, and specific guidance in adjudicating asbestos-related claims. See M21-1, Part IV, Subpart ii.1.H.32, ii.1.H.29 and ii.2.C.9 (October 20, 2012). As the M21-1 notes, asbestos was commonly used in some areas of the military during World War II and shortly thereafter. This was particularly the case in the U.S. Navy, where "several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction" See M21-1, Part IV, Subpart ii.2.C.9.g. Given the nature of the Veteran's service, one can reasonably expect that airborne particulates were present. Exposure to asbestos is not in dispute in this case, as VA has conceded that the Veteran was quite likely exposed to asbestos during his service as a Machinist's Mate. While the Veteran's private examiner has indicated that the Veteran does not have a current diagnosis of a specific respiratory disorder, including asbestosis, pleural plaques have been shown, and such has been attributed to the Veteran's exposure to asbestosis during service. Further, the Board does not find that symptoms such as dyspnea and findings from the PFTs have been explicitly dissociated from the Veteran's pleural plaques. The Veteran's private examiner has indicated that the Veteran has pleural plaques likely caused by exposure to asbestos (during service), and there is no contrary opinion of record. Accordingly, based on all of the foregoing and giving the Veteran the benefit of the doubt, the Board finds that service connection for pleural plaques (as analogous to pleural lung scarring) is warranted. ORDER Service connection for pleural plaques is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs