Citation Nr: 1341041 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 12-04 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for asbestosis REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to October 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, denied the current appellate claim. 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). The Veteran provided testimony at a hearing before a Decision Review Officer (DRO) at the RO in June 2012, and before the undersigned Acting Veterans Law Judge (AVLJ) in July 2013. Transcripts from both hearings are of record. The Veteran contended at his July 2013 hearing that he had renal cancer due to in-service asbestos exposure. However, this issue is not on appeal. Therefore, the matter is REFERRED to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT The competent and credible evidence of record reflects it is at least as likely as not the Veteran currently has asbestosis as a result of his acknowledged in-service asbestos exposure. CONCLUSION OF LAW The criteria for a grant of service connection for asbestosis are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, as discussed in greater detail below, the Board finds that service connection is warranted for asbestosis. As this represents a complete grant of the benefit sought on appeal regarding the appellate claim, no discussion of VA's duty to notify and assist is necessary with respect to this issue. 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). In this case, the Veteran essentially claims he has a current respiratory disorder due to in-service asbestos exposure. With asbestos related claims, VA must determine whether military records demonstrate asbestos exposure during service, and if so, determine whether there is a relationship between asbestos exposure and the claimed disease. The most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(b). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). In this case, the RO has conceded in-service asbestos exposure. The Veteran's service personnel records reflect that his military occupational specialty (MOS) was that of an aviation structural mechanic. A 2002 VA memorandum indicated that for the military specialty of aviation structural mechanic, exposure to asbestos "was probable." The Board acknowledges that a July 2011 VA examination, which included chest X-rays and pulmonary function tests (PFTs), concluded that there was no diagnosis for the Veteran's claimed pleural lung condition because there was no pathology to make a diagnosis. The examiner stated the Veteran did not have any complication such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension or chronic respiratory failure with carbon dioxide retention. Despite the foregoing, the Board notes that a March 2009 private medical evaluation from a Dr. Johnson, which also included chest X-ray and PFTs, reached the opposite conclusion. Specifically, Dr. Johnson stated that, based on the Veteran's history of significant exposure to asbestos with a latency period of 54 years, abnormal chest X-ray, and consideration of other plausible conditions, it was his current opinion, to a reasonable degree of medical probability, that the Veteran has asbestos-related pleural disease. In addition, private medical records dated in July 2013 show a diagnosis of asbestosis. There is competent medical evidence which both supports and refutes a finding of asbestosis. However, the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. In view of the foregoing, the Board finds that the competent medical evidence reflects the Veteran currently has asbestosis. In determining whether the current asbestosis is related to the Veteran's exposure to asbestos in service, the Board notes that Dr. Johnson, in his March 2009 statement, refereed to a "latency period of 54 years" in diagnosing the current asbestos-related disability, which would be consistent with his in-service exposure. Although Dr. Johnson may have been referring to the total exposure, the fact that such exposure began during active service intimates Dr. Johnson believed this exposure contributed at least in part to the current disability. The Board further notes that the law mandates 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. 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 the Veteran currently has asbestosis as a result of his acknowledged in-service asbestos exposure. Therefore, service connection is warranted for this disability. ORDER Entitlement to service connection for asbestosis is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs