Citation Nr: 1332499 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-47 389 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for residuals of a neck fracture. 4. Entitlement to service connection for arthritis. REPRESENTATION Appellant (the Veteran) is represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from February 1947 to February 1950. This appeal comes before the Board of Veterans' Appeals (Board) from September 2008 and December 2009 rating decisions of the RO in Denver, Colorado. In August 2013, the Veteran presented testimony at a Board hearing, which was chaired by the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. On the record of the hearing, the Veteran withdrew his appeal regarding the issues of entitlement to service connection for a dental condition, hypertension, a heart condition, and alcohol abuse. Those appeals having been withdrawn, the Board has no jurisdiction to address them. 38 C.F.R. § 20.204(c) (2013). In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for bilateral hearing loss, residuals of a neck fracture, and arthritis are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT With resolution of all reasonable doubt in the Veteran's favor, the Veteran was actually exposed to asbestos in service, and he currently has asbestosis that is related to the in-service asbestos exposure. CONCLUSION OF LAW Asbestosis was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for asbestosis. He asserts that he was exposed to asbestos during his naval service and that he currently has asbestosis that is related to the in-service exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 included guidelines for adjudicating claims involving asbestos exposure in the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The United States Court of Appeals for Veterans Claims (Veterans Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M 21-1MR. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Manual notes that asbestos particles 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. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). The Manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the Manual guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that any Veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. The Board notes initially that, as explained in more detail in the Remand below, the Veteran's assertions regarding the dates of his service and the branches of service have not been consistent. In addition, he reports exposure to asbestos both in service and in civilian employment. Notably, he has reported that he was exposed to asbestos during his service in the Merchant Marine from 1955 to 1956. Service in the Merchant Marine after August 15, 1945 is not considered active duty and does not qualify him for VA compensation or pension benefits. See Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50 (Nov. 23, 1977); 53 Fed, Reg. 2775 (1998); see also 38 C.F.R. § 3.7(x)(15) (2013); Pacheco v. West, 12 Vet. App. 36, 37 (1998). Nevertheless, it is uncontested that the Veteran had at least one period of active service, from February 1947 to February 1950, in the Marine Corps, and that this period of service involved his presence aboard ship. The RO apparently conceded in-service exposure to asbestos in the October 2009 rating decision. The claim was denied based on a finding by a VA examiner that there was no evidence of current asbestos-related lung disease. The Veteran has provided competent testimony that spent considerable time aboard ship in the Marine Corps and that he was exposed to dust aboard ship. The Board finds that the evidence in favor of actual exposure to asbestos has attained equipoise with the evidence against exposure. The benefit of the doubt is accordingly given to the Veteran on this question. The Board notes that the record contains numerous opinions regarding whether the Veteran has an asbestos-related lung disease. There are several opinions that favor a diagnosis of asbestos-related lung disease, and most of these opinions are based on a June 2000 X-ray. An August 2000 report by a physician at Pulmonary Medicine Associates interprets the June 2000 X-ray as showing irregular opacities in the lower lung zones bilaterally of category s/t with 1/1 profusion. The physician opined that, in the presence of a significant occupational exposure history to asbestos dust, these findings are consistent with the diagnosis of bilateral interstitial fibrosis due to asbestosis. A December 2000 examination by South Jersey Chest Diseases makes note of November 2000 spirometry showing a mild restrictive defect. The physician opined that, on the basis of the medical history, which indicates a significant occupational exposure to asbestos dust along with physical examination, abnormal spirometry, and radiographic findings, there is a reasonable degree of medical certainty that the Veteran has asbestos-related interstitial pulmonary fibrosis. An April 2002 report by A.J.S D.O. notes the June 2000 X-ray results and the Veteran's occupational history. A.J.S. opined that, given the Veteran's history of significant exposure to asbestos in the workplace associated with an appropriate latency, and given the roentgenographic findings (June 2000 x-ray), I feel with a reasonable degree of medical certainty that he is diagnosed as having interstitial fibrosis caused by bilateral pulmonary asbestosis. The Veteran was seen by E.S. M.D. in March 2010 to confirm the diagnosis of asbestosis. E.S. noted that the time frame regarding asbestos exposure would fit the Veteran's clinical symptomatology; however, she also noted that the Veteran has a history of prior tobacco use. She referred the Veteran to a specialist in pulmonary occupational environmental medicine for an opinion. A May 2010 occupational/environmental consultation report reflects that a comprehensive examination was conducted for the purpose of determining whether the Veteran has service related asbestosis. The Veteran's service history and post service history were noted. A high-resolution CT scan was conducted. The report indicated diffuse moderate bronchial wall thickening, mild cylindrical bronchiectasis at the bases with mild bibasilar linear scarring. No pleural thickening was identified. Expiratory images showed moderate air trapping. The examiner opined that the Veteran's exposure to asbestos over the course of his three years about ship would be sufficient to contribute to the development of asbestos-related lung disease on a more likely than not basis. A VA examination was conducted in July 2009. An X-ray was taken for the examination in April 2009. The X-ray was interpreted as showing moderately increased lung volumes, flattened hemidiaphragms and suggestion of biapical vascular attenuation most consistent with COPD. There was no pleural effusion. There was minimal right apical pleural thickening without evidence for frank pleural thickening/calcification. The impression was no evidence of asbestos-related pleural disease or lung fibrosis; moderate COPD. The July 2009 VA examiner found early COPD secondary to smoking, and a history of asbestos exposure. The examiner opined that, although the Veteran was diagnosed with asbestosis in the past, there is no evidence on current x-rays for asbestosis. While additional inquiry and development could certainly be conducted in the interest of greater certainty regarding the presence of asbestos-related lung disease, the Board finds that this is not necessary. Although a VA X-ray did not, in the opinion of the examiner, demonstrate findings consistent with asbestosis, there is a considerable body of evidence to the contrary. Indeed, the VA examiner acknowledged that prior X-rays had shown asbestosis without accounting for this discrepancy. For the Board to assign greater probative weight to the VA opinion in comparison to the private opinions, there would need to be some explanation as to how evidence of asbestosis could be present at one time and absent at a later time, and whether this is interpreted as an improvement in the disease or simply a problem with the X-ray itself. There is no meaningful discussion of these matters. Rather, the examiner simply noted the different findings. In summary, the Board finds that, although there is competent evidence indicating no asbestos-related lung disease, there is equally competent evidence indicating that there is asbestos-related lung disease. The evidence has attained the point of relative equipoise, and the benefit of the doubt regarding the existence of asbestos-related lung disease must be resolved in favor of the claim. Having determined that the Veteran was likely exposed to asbestos during his service in the Marine Corps and that he has current asbestos-related lung disease, the next question is whether there is an etiological relationship between the Veteran's asbestos exposure in service and the current asbestos-related lung disease. Again, additional inquiry and development could certainly be conducted in the interest of greater clarity regarding asbestos exposure in the Veteran's civilian occupations. His reported occupational history is extremely inconsistent, and even at his hearing before the undersigned, he demonstrated confusion over dates and events in his lifetime. The December 2000 South Jersey Chest Diseases report indicates he stated his first exposure to asbestos was in 1947 and that he was exposed until 1996. The April 2002 report by A.J.S. indicates a reported history of working as a welder from 1948 to 1975 - an occupation associated with a high risk of asbestos exposure. The May 2010 consultation report reflects a history of serving two years aboard naval ships while in the Marines, civilian work as a welder after active service until 1955, and then asbestos exposure while in the Merchant Marines from 1955 to 1956. Again, his Merchant Marine service is not considered active duty under the law. So there is certainly a question here whether any asbestos related disease is more likely related to the exposure that occurred during the Veteran's active military service or the exposure during his civilian occupations. However, the May 2010 report includes a competent opinion that relates the current asbestos-related lung disease at least in part to in-service asbestos exposure. There is no directly contradictory opinion. Therefore, the nexus to service is arguably established. As the elements necessary for service connection are met, the Board concludes that service connection for asbestos-related lung disease is warranted. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the claim, it is substantiated, and there are no further VCAA duties with respect to it. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). ORDER Service connection for asbestosis is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the issues of entitlement to service connection for bilateral hearing loss, residuals of a neck fracture, and arthritis. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Records While the RO has made extensive efforts to verify service dates and obtain treatment records from a second period of service claimed by the Veteran, the Board finds that an additional attempt should be made. The Board acknowledges that the Veteran has not been consistent in describing his service. The Veteran's initial period of service in the Marine Corps is documented and treatment records from that period are of record. There is no indication that any are missing. The Veteran has reported that, subsequent to his service separation in February 1950, he worked in the civilian ranks as a welder. He initially reported that he returned to service in 1955 in the Navy; however, he later reported that he joined the Merchant Marine in 1955. He submitted documentation of his service in the Merchant Marine from October 1955 to approximately July 1956. The Board notes that service in the Merchant Marine after August 15, 1945 is not considered active duty for the purposes of laws administered by the Secretary of Veterans Affairs. See Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50 (Nov. 23, 1977); 53 Fed, Reg. 2775 (1998); see also 38 C.F.R. § 3.7(x)(15); Pacheco v. West, 12 Vet. App. 36, 37 (1998). Because the Veteran's Oceangoing Merchant Marine service began after August 15, 1945, his period of service is not considered active duty under the provisions of Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50. Accordingly, as service connection cannot be based on any injury or disease incurred during this period, no additional efforts to obtain records are necessary. On the original claim form, the Veteran reported that he sustained a neck fracture in a motor vehicle accident in July 1957, which we now can determine was after his period of Merchant Marine service. On the VA Form 9, he reported that the accident occurred in August 1957, and that this was just prior to his discharge from the Coast Guard. The Veteran had never previously reported any service in the Coast Guard, but reported on the claim form that he had undertaken an uninterrupted period of service in the Navy from October 1955 to October 1957. The Board notes that no attempt has been made to obtain service records from the Coast Guard. A September 2009 deferred rating indicates that the specific branch of service must be included in a request for service records. It is therefore reasonable to conclude that Coast Guard records would not be expected to have been located during the RO's searches for records from the Marine Corps and Navy. As the Veteran's Coast Guard records, if they exist, might be pertinent to each of the service connection claims, an effort should be made to obtain these records. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 U.S.C. §5103A(b); 38 C.F.R. § 3.159(c)(1). Hearing Loss The Veteran was afforded a VA examination in conjunction with the hearing loss claim in August 2008. The examiner diagnosed bilateral sensorineural hearing loss and reported audiometric findings that constitute hearing loss for VA purposes. Although the examiner was asked for an opinion regarding etiology, he declined to provide one, stating that he could not resolve the issue without resort to speculation. The stated rationale for this conclusion was the absence of service records. Subsequently, in August 2009, the Veteran's service treatment records were obtained; however, there appears to have been no subsequent attempt at obtaining a medical opinion. In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is competent evidence of a current hearing loss disability that may be related to in-service noise exposure. As such an opinion is necessary. Where VA has a duty to obtain a medical opinion, the failure of a particular examiner to provide such opinion does not absolve VA of its duty. Before the Board can rely on the August 2008 examiner's conclusion that an etiology opinion is not possible, the examiner must adequately explain the basis for such a conclusion, or the basis must otherwise be apparent in the Board's review of the evidence. Cf. 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"). The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Furthermore, the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Finally, VA must ensure that any medical opinion, including one that states no conclusion can be reached is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves, supra. When the record leaves this issue in doubt, it is the Board's duty to remand for further development. See Jones (cited above). Here, the examiner's stated basis for not being able to answer the question was the absence of service records. Those records have since been obtained, at least in part, and include a hearing test at service separation. Therefore, clarification, at a minimum, is necessary. Should the examiner still conclude that the question cannot be answered, further reasoning is required. Accordingly, these issues are REMANDED for the following action: 1. Undertake all necessary development to verify claimed service in the Coast Guard from (approximately) October 1956 to October 1957 and obtain and associate with the VA claims folder all pertinent records from the Veteran's period of service in the Coast Guard, if verified. If any requested records are not available, or the search for such records otherwise yields negative results, that fact should be noted in the claims file, and the Veteran and his representative should be so notified. 2. Obtain a supplemental opinion from the examiner who conducted the August 2008 examination. If the examiner is not available, obtain an opinion from another VA clinician. If the clinician determines that additional examination of the Veteran is necessary to provide a reliable and conclusive opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the clinician. The clinician is asked to provide an opinion as to whether the Veteran's current hearing loss disability is related to in-service noise exposure. If the evidence does not establish a 50 percent or better probability of such relationship, then the clinician should state this. The clinician is advised that absolute certainty is not required. If the clinician determines that a conclusive or non-speculative opinion cannot be rendered, the clinician should precisely state the reasons for this conclusion, addressing what facts cannot be determined, whether all procurable and assembled data have been considered, and whether additional research, examination, or testing might facilitate a conclusive opinion. 3. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs