Citation Nr: 1342182 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 09-12 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for chronic myelogenous leukemia (CML), to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to March 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the claims file. In July 2013, the Veteran's representative submitted additional evidence relevant to the claim on appeal. Although no waiver was received, the Board will consider it in the first instance, as the outcome is favorable to the Veteran. The issues of entitlement to service connection for a thumb disability, a finger disability, tooth and gum trouble, sea sickness, hearing loss, diabetes due to Agent Orange exposure, and a left knee disability, as secondary to right knee, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See February 1995 VA Form 21-4138; November 1994 (received December 1994) VA Form 21-528; July 2013 VA Form 21-526EZ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The competent and credible evidence of record establishes that the Veteran was exposed to asbestos during active service. 2. The competent and credible evidence of record establishes that the Veteran's CML is causally related to his in-service asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for CML due to asbestos exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103(A), 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In the present case, the grant of service connection for CML constitutes a complete grant of the benefit sought on appeal. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). Generally, to establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (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) (2013). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board recognizes that lay evidence concerning onset and a history of symptoms during or after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that his CML is a result of in-service asbestos exposure while aboard the USS Kansas City. As an initial matter, the evidence of record shows that the Veteran has a current diagnosis of CML sufficient to meet the first element required for a service connection claim. See McClain v. Nicholson, 21 Vet. App. 319, 321. Next, the evidence of record additionally supports a finding that the Veteran was exposed to asbestos in service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1998) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The Court of Appeals for Veterans Claims (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. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. The manual lists some of the major occupations involving exposure to asbestos, including mining, milling, work in shipyards, 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 roofing and flooring materials, asbestos cement, pipe products, and military equipment. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 of VBA Manual M21-1 did not created a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA OGC Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must first determine whether military records demonstrate evidence of asbestos exposure during service and develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure. Then, it must determine whether there is a relationship between asbestos exposure and the claimed disease. The Veteran's service personnel and medical treatment records confirm service aboard the USS Kansas City, as well as service duties as a radioman and maintenance man. Given the nature of the Veteran's duties, the Board recognizes that it is as likely as not that the Veteran worked in close proximity to asbestos while serving aboard a naval vessel. Furthermore, the Veteran has provided credible lay statements in which he recalls being exposed to heat and fire resistant products containing asbestos aboard the USS Kansas City. Thus, the Board finds that the Veteran was exposed to asbestos during his active service. Lastly, the competent medical evidence of record supports a finding that the Veteran's diagnosed CML is related to his in-service asbestos exposure. In a July 2013 opinion, Dr. M.R., a VA oncology physician at the Atlanta VA Medical Center where the Veteran receives treatment for his CML, stated that the Veteran's CML "could be as likely as not directly related to [a]sbestos exposure," and additionally attached a medical journal article detailing findings of a relationship between malignancies and asbestos exposure. In addition, a July 2013 VA treatment record provides that in rendering her opinion, Dr. M.R. specifically relied on the article's finding that "five out of ten cases of leukemia were related to asbestos exposure." There are no negative medical opinions of record. There is no evidence of any other intercurrent cause for the Veteran's CML or of any pre-service or post-service asbestos exposure. The Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is not refuted. It is not permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board finds Dr. M.R.'s opinion to be of probative weight, and thus finds that the preponderance of the evidence of record is in favor of a grant of entitlement to service connection for CML, to include as due to asbestos exposure. ORDER Entitlement to service connection for chronic myelogenous leukemia, to include as due to asbestos exposure, is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs