Citation Nr: 1334316 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-07 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE 1. Whether new and material evidence has been submitted to reopen claims for entitlement to service connection for lung disabilities, to include chronic obstructive pulmonary disease and lung fibrosis, as a result of asbestos exposure. 2. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease and pleural disease, as a result of asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran. ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active military service from January 1955 to January 1959. The case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified before the undersigned at a September 2013 video hearing. A transcript of the hearing has been associated with the file. Evidence has been received subsequent to the final consideration of the claim by the RO and the Veteran has waived RO consideration of that evidence. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c) (2012). 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). FINDINGS OF FACT 1. An unappealed January 2005 rating decision, of which the Veteran was notified in January 2005, denied the Veteran's claim for entitlement to service connection for chronic obstructive pulmonary disease and lung fibrosis. 2. Additional evidence received since the January 2005 rating decision is neither cumulative nor redundant and raises the possibility of substantiating the Veteran's claim for service connection for a lung disability, to include chronic obstructive pulmonary disease and pleural disease, as a result of asbestos exposure. 3. The Veteran's current lung disabilities are etiologically related to his active military service. CONCLUSIONS OF LAW 1. The January 2005 rating decision, which denied the claims for entitlement to service connection for lung disabilities to include chronic obstructive pulmonary disease and lung fibrosis, is final. 38 U.S.C. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the January 2005 rating decision is new and material to the claims for entitlement to service connection for lung disabilities to include chronic obstructive pulmonary disease and lung fibrosis. 38 U.S.C. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for a lung disability, to include chronic obstructive pulmonary disease and pleural disease, as a result of asbestos exposure have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100 , 5102, 5103A, 5107, 5126, prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. Because the Board is granting the Veteran's request to reopen his claim and is granting his claim for service connection for a lung disability, the Board need not discuss compliance with the VCAA's duty to notify and assist provisions. The Veteran could not obtain a better outcome in this matter and, therefore, any error could only be nonprejudicial, i.e., harmless. 38 C.F.R. § 20.1102 (2013); see also Shinseki v. Sanders, 556 U.S. 396, 407-11 (2009). There simply is no such possibility of prejudicial error with respect to VCAA notice and duty to assist requirements given the granting, rather than denial, of the claim. II. Merits: Reopening the Claim In August 2004, the Veteran filed a claim seeking entitlement to service connection for chronic pulmonary obstructive disease. The RO denied the claim in January 2005. The Veteran did not appeal that rating decision. Also, no new and material evidence was received within the year following the decision. Therefore, the 2005 rating decision became final. 38 U.S.C. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See Shade v. Shinseki, 24 Vet. App. 110, 113 (2010). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. See Shade, 24 Vet. App. at 119-20. Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Board finds that new and material evidence has been received and that the criteria to reopen the claim have been met. The claim was previously denied because it was not shown that the Veteran was actually exposed to asbestos and suffered from a disease usually associated with asbestos exposure. See January 2005 Rating Decision. The Veteran, in connection with his May 2011 claim, proffered additional medical records containing updated diagnoses and verification of continued treatment for his lung conditions, including COPD, pleural disease and asbestosis, as well as more detailed lay assertions of exposure to asbestos. See, e.g., August 2013 Report on CT Exam ("evidence of asbestosis with multiple calcified pleural lesions"); March 2013 Statement of the Veteran (providing specifics regarding times, places, and circumstances of exposure to asbestos and reporting a medical diagnosis of an asbestos-related disease). The evidence submitted by the Veteran has not been previously submitted to agency decision makers and, therefore, is "new" for purposes of a claim to reopen. 38 C.F.R. § 3.156(a). Also, the evidence shows, when presumed to be credible, that the Veteran was exposed to asbestos while in the U.S. Navy and currently suffers from an asbestos-related lung condition. Thus, the new evidence relates to unestablished facts necessary to substantiate the claim, specifically exposure to asbestos during active military service and a current asbestos-related lung disability. See Shade, 24 Vet. App. at 122-23. For these reasons, the Board finds the newly submitted evidence material. Because the Board finds that the evidence received since the last final denial is both new and material, the requirements to reopen the claim have been met. The Board grants the Veteran's request to reopen his claim for entitlement to service connection for a lung disability. III. Merits: Service Connection for a Lung Disability In establishing his claim, the Veteran need only demonstrate that there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. The benefit of the doubt is afforded the claimant with respect to each issue material to the determination. Id. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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 adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate that the Veteran was exposed to asbestos during service; (2) development has been accomplished to determine whether or not 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. See Adjudication Manual Rewrite, M21-1MR, Part IV.ii.2.C.9(h). The record establishes that the Veteran was exposed to asbestos during service. Specifically, the Veteran contends and the evidence confirms that the Veteran was exposed to asbestos during his active service on a naval ship and in a navy shipyard. For instance, the Veteran's military occupational specialty (MOS) was "Boiler Operator", an MOS that is considered to have a high probability of exposure to asbestos. See January 1959 DD-214. The Veteran has stated that the pipes carrying steam from the boiler were covered in asbestos insulation, that part of his duties included mixing asbestos fiber powder to form a paste to insulate those lines, and that he also removed leaking gaskets made of asbestos by grinding them off. He further explained that, due to the presence of so much asbestos and his manipulation of asbestos-containing materials, "the dust from all of these and other duties was constantly floating through the air." See March 2013 Statement by the Veteran. The Veteran also asserts that, while assisting in the overhaul of the USS Willard E. Keith and the decommissioning of the USS Horace A. Bass, he helped replace the boilers and "all the asbestos insulation for the steam lines for the whole boiler room" in those ships. He has indicated that he was treated for breathing problems multiple times during his active service and his service treatment records confirm that. See, e.g., Chronological Record of Medical Care (January 1956 - difficulty breathing and coughing at night; November 1958 - tightness in chest and difficult respiration presumed to be due to "working in closed dusty area"). The Board also notes that, according to the Adjudication Manual Rewrite, U.S. Navy ships from the World War II era were built using asbestos-containing materials and, as a result, millions of shipyard workers and U.S. Navy veterans were exposed to those materials. M21-1MR, Part IV.ii.2.C.9(g). The Veteran's assertions of exposure to asbestos are strongly supported by the fact that he served on World War II era ships with an MOS of "Boiler Technician" whose duties put him in frequent proximity to and contact with asbestos-containing insulation and other materials and he participated in overhauling and decommissioning World War II era ships that, again, involved working with and around asbestos-containing materials. Finally, as discussed in more detail elsewhere, the Veteran's post-service medical records indicate changes in the lungs indicative of asbestos exposure. See, e.g., August 2013 Report on CT Exam. In summary, the Board finds the Veteran's testimony regarding his in-service exposure to asbestos to be credible and concludes that the Veteran was, in fact, exposed to asbestos during his active military service. The Board also finds credible the Veteran's statements that he was not exposed to significant amounts of asbestos after he was honorably discharged from military service. His post-service occupations are not indicative of exposure to asbestos. See January 2013 Report on VA Examination (listing post-military work history and noting no exposure to asbestos). Therefore, the Board finds that the Veteran was primarily, if not exclusively, exposed to asbestos during his active military service. The Board also notes that the Veteran has consistently reported that he is a non-smoker and the Board finds his testimony credible. The remaining issue, then, is whether the Veteran's lung disabilities are related to the in-service asbestos exposure. The record indicates that, at least as early as July 1999, the Veteran suffered from mild COPD with mild chronic interstitial disease. See October 1999 Radiology Report. By October 2002, the Veteran's COPD had been upgraded to "moderate" and mild chronic interstitial disease was again noted. The Veteran's private treatment records reflect the same diagnosis through January 2010. A November 2010 CT scan found "[m]ild chronic interstitial disease involving both lungs in association with bilateral pleural thickening and a few pulmonary calcifications." The examining physician concluded: "This could be the result of asbestos exposure although other pathological processes could also produce this appearance." A March 2012 CT scan revealed "[f]indings consistent with asbestos related pleural disease", but no findings of mesothelioma or asbestosis. In connection with his pending claim, the Veteran was afforded a VA examination in October 2012. The examiner concluded that, while the Veteran's lung condition was at least as likely as not related to his service, the Veteran did not, at that time, suffer from asbestosis or asbestos-induced interstitial disease. The examiner did note pleural plaques that "could well be related to [the Veteran's] asbestos exposure", but concluded that the plaques were "unlikely to cause impairment of lung function." The report on a subsequent, January 2013 VA examination again indicated that the Veteran did not suffer from interstitial disease to his lungs, asbestosis, or pleural disease "per se". The examiner did note, again, that the Veteran had pleural plaques that were likely the result of asbestos exposure. On the basis of these VA examiner opinions, the RO denied the claim in a January 2013 Statement of the Case. The Veteran, thereafter, submitted a February 2013 letter from his treating physician in which the physician opined that the Veteran "has had multiple x-rays and ct scans that show lung disease consistent with exposure to asbestos." The physician noted that the Veteran's condition would likely continue to deteriorate. The RO determined, in a Supplemental Statement of the Case, that the letter opinion was not sufficient to outweigh the contrary opinion of the VA examiner. The Board does not need to determine whether that decision was correct because the Veteran has subsequently provided additional testimony and medical records that support his claim. Treatment records from August 2013, which consist of the results of a CT scan of the Veteran's chest and a physician's interpretation of those results, provide probative and convincing evidence that the Veteran currently suffers from a lung disability that is the result of exposure to asbestos during his active military service. Specifically, the Veteran's treating physician found that "[t]here is evidence of asbestosis with multiple calcified pleural lesions." While the report indicates that these findings are "unchanged since 2010", the August 2013 report is the first medical record to specifically indicate that the Veteran presently suffers from asbestosis. As noted above, however, prior medical records, including the March 2012 report on a CT scan and the February 2013 letter opinion from the Veteran's treating physician, did indicate the Veteran had lung abnormalities that were attributable to asbestos exposure. The Board finds the opinion expressed in the August 2013 treatment records to be persuasive. This latest opinion, while different from the January 2013 VA examiner's opinion, is not inconsistent with that earlier opinion. The VA examiner noted in his January 2013 report that the Veteran could develop asbestosis and that the Veteran's lungs already had changes caused by asbestos exposure. Thus, the Board finds that the totality of the evidence, including the newly-submitted August 2013 treatment records, establishes that the Veteran now suffers from a lung disability that is the result of in-service exposure to asbestos. Gilbert, 1 Vet. App. at 53-56 (holding that the Veteran prevails where the evidence supports the claim or is in relative equipoise). Because the evidence credibly establishes that the Veteran was exposed to asbestos during his military service and that the Veteran has a current lung disability which is etiologically related to the in-service asbestos exposure, the Board will grant the Veteran's claim of entitlement to service connection for a lung disability as the result of asbestos exposure. ORDER 1. The Veteran's request to reopen claims for entitlement to service connection for lung disabilities, to include chronic obstructive pulmonary disease and lung fibrosis, as a result of asbestos exposure is granted. 2. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease and pleural disease, as a result of asbestos exposure is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs