Citation Nr: 1307957 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-31 347 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by which the RO, in pertinent part, denied the Veteran's claim of entitlement to service connection for asbestosis. In July 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran was exposed to asbestos in service. 2. Affording him the benefit of the doubt, the Veteran's currently diagnosed asbestosis is causally related to asbestos exposure during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for asbestosis are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations 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; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Service connection may also 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 condition at issue, asbestosis, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012), therefore 38 C.F.R. § 3.303(b), which pertains to continuity of symptomatology, does not apply. See Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). VA has issued a circular on asbestos-related diseases, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, (1) that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; (2) that VA is to develop any evidence of asbestos exposure before, during and after service; and (3) that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of the pleura and peritoneum; and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. As noted above, high exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran served in the Navy. His Military Occupational Specialty was that of a motorized vehicle mechanic. He asserts that he suffers from asbestosis due, at least in part, to asbestos exposure in service. According to the hearing testimony, he contends that he was exposed to asbestos in conjunction with his duties as a light/heavy vehicle mechanic. The Veteran described the type of repairs he made. Unfortunately, that portion of the testimony was partially inaudible to the transcriber and not fully recorded in the hearing transcript. The Veteran also testified that he was involved in the clean-up effort after Hurricane Camille in August 1969, which hit the Gulf Coast. The Board notes that a cursory Internet search reveals that Hurricane Camille struck the Gulf Coast in August 1969, and service personnel records show that the Veteran was stationed in Gulfport, Mississippi in August 1969 and that he did not leave the area for several months thereafter. The Veteran testified that he cleared and loaded construction materials to include siding and insulation, which contained asbestos. Although asbestos exposure is not confirmed by the record, the Board finds that the weight of the evidence indicates that the Veteran was exposed to asbestos. Importantly, according to M21-1, Part VI, para. 7.21(b), a major occupation involving exposure to asbestos is the manufacture and servicing of friction products such as clutch facings and brake linings. The Veteran's Military Occupational Specialty was that of a motorized vehicle mechanic. As the Veteran was a mechanic for large and small vehicles, which likely included the servicing of friction products, the Board concludes that he was exposed to asbestos. Beyond this exposure, the Board finds no reason to question the Veteran's testimony regarding clearing construction debris after Hurricane Camille because it is consistent with the magnitude of the disaster coupled with his presence in Gulfport. Wensch, supra; Caluza, supra. Because, according to M21-1, Part VI, para. 7.21(b), a major occupation involving exposure to asbestos is carpentry and construction, the Board finds that the clearing of construction debris entailed asbestos exposure. However, the Board notes that the record reflects post-service occupational asbestos exposure as well as a long history of smoking, providing evidence against this claim. A December 2005 computed tomography scan showed bilateral chest wall pleural plaque characteristic of asbestos related pleural disease. In June 2006, SLA, M.D. opined that the Veteran's bilateral asbestos-related pleural disease, with a reasonable degree of medical certainty, was due to asbestos fiber inhalation in the workplace and that each and every exposure to asbestos constituted a specific and substantial factor in causing the Veteran's asbestos-related disease. In November 2007, Dr. SLA reiterated the foregoing opinion and noted the Veteran's service and post-service asbestos exposure history. In May 2008, the Veteran was afforded a VA medical examination wherein asbestosis was diagnosed. The examiner did not specifically opine regarding the etiology of that asbestosis. The examination report, however, cites clear cut evidence of asbestos exposure in service. The VA examiner mentioned the Veteran's smoking history as well. The Veteran has a current diagnosis of asbestosis along with a history of asbestos exposure in service. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), asbestosis, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board cannot rely upon the Veteran's representations regarding the origins of his asbestosis. However, a close review of the competent medical evidence permits the Board to infer a nexus between present asbestosis and service. Both the VA examiner and Dr. SLA noted in-service asbestos exposure when opining that asbestos exposure was responsible for the Veteran's current asbestosis. Furthermore, in an uncontroverted statement, Dr. SLA indicated that each and every exposure to asbestos constituted a specific and substantial factor in causing the Veteran's present asbestosis. Accordingly, the competent medical evidence is at least in relative equipoise as to whether the Veteran's asbestosis resulted from asbestos exposure in service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. There being a nexus between the Veteran's currently diagnosed asbestosis and service, service connection for asbestosis is granted. 38 C.F.R. § 3.303; Shedden, supra. The nature and extent of the problem related to service is not before the Board at this time. In this regard, problems associated with smoking would not be associated with this grant. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for asbestosis is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs