Citation Nr: 1332200 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-36 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic respiratory disorder, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from May 1955 to July 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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). This case was previously before the Board in January 2013 and June 2013. In January 2013, the Board remanded this case for further development to include a VA medical examination which was accomplished in February 2013. In June 2013, the Board requested a medical expert opinion from a member of the Veterans Health Administration ("VHA opinion") in accord with VHA Directive 20006-019 (April 3, 2006), 38 U.S.C.A. §§ 5103A, 7109 and 38 C.F.R. § 20.901; and the requested opinion was received by the Board in October 2013. For the reasons discussed in greater detail below, the Board finds that this evidence is sufficient for resolution of this case in the Veteran's favor. FINDINGS OF FACT The competent and credible evidence of record reflects it is at least as likely as not that the Veteran currently has a chronic respiratory disorder due to in-service asbestos exposure. CONCLUSION OF LAW The criteria for a grant of service connection for chronic respiratory disorder due to in-service asbestos exposure are 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 CONCLUSIONS In this decision, the Board finds that service connection is warranted for a chronic respiratory disorder due to in-service asbestos exposure. As this represents a complete grant of the benefit sought on appeal with respect to this claim, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran seeks service connection for a respiratory disorder due to asbestos exposure during the performance of his duties as an aircraft mechanic in service. From May 1955 to July 1974 he served aboard multiple Navy vessels and worked in shipyards. He asserts that in-service exposure to asbestos contributed to his current lung disability. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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, the VA Adjudication Procedure Manual, M21-MR, Park IV, Subpart ii, Chapter 2, Section C, provides information concerning claims for service connection for disabilities resulting from asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). In this case, VA has already conceded exposure to asbestos during service. However, the issue is whether he has a current respiratory disorder as a result of this in-service asbestos exposure. Of note, the evidence of record also shows that the Veteran smoked tobacco for approximately 20 years until 1972. Further, the service treatment records included an August 1966 diagnosis of bronchitis. Reenlistment examinations dated in November 1963, August 1969, May 1971, and July 1972 mark the Veteran's lungs and chest as normal. Given this history, as well as the complex nature of asbestos-related claims as discussed by the aforementioned M21-1 provisions above, the Board finds that competent medical evidence is required to resolve this case. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Veteran's post-service medical records include a September 1986 diagnosis of mild restrictive disease secondary to asbestos exposure and asbestosis. During the examination, the Veteran reported that he had some asbestos exposure while he worked on jet engines in service. He indicated that he worked for a number of years at a local chemical plant in construction that dealt with insulation of various kinds and also pipes. As the clinician noted that the Veteran had not held a similar job for the previous 10 years, his post-service asbestos exposure was determined to not be recent. The conclusion was that the Veteran's pulmonary function was consistent with mild asbestosis and asbestos associated pulmonary fibrosis. Pursuant to this report and consistent with the Veteran's statements, it appears that the Veteran's post-service exposure to asbestos working at a chemical plant was limited to approximately 3 years. An October 1987 note reflects a diagnosis of mild asbestosis in the past. A January 1989 VA examination revealed no apparent respiratory difficulty. The diagnosis included a history of asbestos exposure. A private pulmonary function testing report in January 1989 revealed mild restrictive lung defect with no obstructive lung defect. An August 1989 private treatment record noted radiographic findings of interstitial fibrosis and pleural changes consistent with asbestosis. Subsequent VA and private treatment records show a past medical history of asbestosis and chronic obstructive pulmonary disease (COPD). A December 2005 chest X-ray revealed chronic periobronchial thickening in the perihilar regions. In December 2006, a private clinician noted extensive unprotected asbestos exposure in the 1960's and 1970's while serving in the Navy. Reportedly, he worked around asbestos as it was being cut and the fibers were in the air. He also reported that he worked in shipyards around asbestos. Based on pulmonary function testing results, the clinician diagnosed definite asbestosis. In December 2007 the Veteran had a VA respiratory examination. A chest X-ray revealed minimal obstructive, mild restrictive defects. The diagnosis was "no objective evidence of asbestosis." A December 2007 private treatment reflects a diagnosis of definite asbestosis, roentgenographically and physiologically stable. A chest X-ray and pulmonary function testing were noted as unchanged and consistent with moderate restrictive impairment and mild to moderate diffusion impairment. In January 2013, the Board determined that while the VA examiner in December 2007 found no evidence of a current diagnosis of asbestosis, private medical records dated during the course of the appeal, recorded a diagnosis of asbestosis and remanded the claim for a VA examination to determine the nature and likely etiology of the Veteran's claimed lung disorder, to specifically include the diagnosis of asbestosis. The Veteran had a VA respiratory disorders examination in February 2013. Following a review of the claims file and an examination of the Veteran, to include pulmonary function testing and chest X-rays that showed mild restriction with moderate diffusion, the examiner diagnosed asbestosis, after service in 1986, with no functional limitations. The examiner noted the Veteran's in-service and post-service exposure to asbestos and indicated that service treatment records contained no objective evidence of asbestosis. The examiner also diagnosed COPD, emphysematous type, on inhalers with no functional limitation. The examiner opined that it was less likely than not that his COPD was etiologically related to service, to include asbestos exposure therein. The examiner based the opinion on the fact that the Veteran was first diagnosed with COPD in 2002 and asbestos was not recognized as a cause of COPD. The examiner opined that the Veteran's COPD was more likely due to the Veteran's 20 year history of smoking tobacco. The examiner, however, did not address the etiology of the Veteran's asbestosis, nor did she provide an opinion as to whether the Veteran's in-service asbestos exposure contributed to any currently diagnosed pulmonary disorder. In view of the deficiencies in the February 2013 VA examiner's opinion, the Board requested a VHA opinion in June 2013. The Board requested, in pertinent part, that the medical expert indicate whether it is at least as likely as not that any current pulmonary disorder, to include COPD and/or asbestosis, is related, at least in part, to the Veteran's active service, and in particular, to the conceded in-service asbestos exposure from May 1955 to July 1974. The subsequent VHA opinion received in October 2013 was completed by a pulmonologist and stated, in pertinent part, that the Veteran has COPD and in addition he also has pulmonary function tests and chest X-rays consistent with a diagnosis of asbestosis. Moreover, the VA pulmonologist stated that most likely the Veteran's asbestosis is related to his working aboard the ships and in the shipyards. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the VA pulmonologist who promulgated the October 2013 VHA opinion was familiar with the Veteran's medical history from review of his VA claims folder. Further, the VHA opinion was not expressed in speculative or equivocal language, and is consistent with the fact the Veteran had in-service asbestos exposure. Although the Veteran also had a 20-year smoking history, the VA pulmonologist was aware of and referenced this history in the VHA opinion. Therefore, the Board finds that this opinion is persuasive and entitled to significant probative value in the resolution of this appeal. The Board also notes that the law states that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Moreover, in Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects it is at least as likely as not that the Veteran currently has a chronic respiratory disorder due to in-service asbestos exposure. Therefore, service connection is warranted for this disability. ORDER Service connection for a chronic respiratory disorder due to in-service asbestos exposure is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs