Citation Nr: 1332143	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  11-16 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for asbestosis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and children


ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1951 to August 1959.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  

In June 2013, the Veteran and his witnesses testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's claims file.  At the hearing, the Veteran submitted evidence pertinent to the claims on appeal.  This evidence was accompanied by a waiver of RO consideration.  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) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran served as a machinists mate in the engine room on board a ship during his Navy service and was at least as likely as not exposed to asbestos during such service; he has credibly testified that his post-service occupations did not involve asbestos exposure. 

2.  Competent medical evidence establishes a diagnosis of asbestosis related to his prior asbestos exposure.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for establishing service connection for asbestosis have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board grants entitlement to service connection for asbestosis.  In light of this fully favorable decision on the issue of service connection, no discussion of VA's duty to notify or assist is necessary.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that 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).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Veteran contends that he was exposed to asbestos aboard the USS Tortuga, while in service.  At his hearing, the Veteran stated that he worked in the engine room and handled asbestos, "taking it off the pipes [and] working on the pumps."  He asserted that everything in the engine room was covered with asbestos.  The Veteran's discharge paper confirms he served as a machinist's mate.  His testimony of serving in an engine room is credible.  Moreover, he testified that following service, he worked for Congo and Can Company and then for an auto sales company.  He stated that neither of these occupations involved asbestos exposure.  There is no evidence of record to the contrary.  

Post service treatment records note the Veteran was diagnosed in November 1995 with asbestosis based on pleural calcifications on chest x-ray.  It was noted that he had worked with steam turbines in the engine room in service in 1951 to 1955.  A May 2006 x-ray showed calcified pleural plaques on each lung.  A March 2009 CT scan showed scattered calcified pleural plaques which likely represent changes of prior asbestos exposure.  Finally, the VA examiner in March 2012 also diagnosed asbestosis.  

Thus, the Veteran has credibly testified that he was exposed to asbestos during his service while working in the engine room.  He submitted an internet article noting the use of asbestos in piping, ceiling tiles and bulkhead insulation on the USS Tortuga.  In addition, there is no evidence establishing that he was exposed to asbestos following his service.  Medical evidence of record diagnosed asbestosis in 1995 due to prior asbestos exposure, and such diagnosis continues to be shown.  Objective findings of such condition are shown on radiographic studies.  The Board acknowledges that the Veteran also suffers from other pulmonary diagnoses that the VA examiner found are the more likely cause of his current symptomatology.  However, a grant of service connection is dependent upon the current presence of the claimed disability, not the extent of symptoms.  

Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for asbestosis is warranted.


ORDER

Entitlement to service connection for asbestosis is granted.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs