Citation Nr: 1315644 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 12-19 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for mesothelioma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from April 1951 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 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). FINDING OF FACT The Veteran has mesothelioma that is as likely as not related to his active duty. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, he has mesothelioma that was incurred in his military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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 issue of service connection for mesothelioma. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the appellant, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Analysis The Veteran contends that he has mesothelioma due to in-service asbestos exposure. See, e.g., February 2010 notice of disagreement. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Regarding asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases; nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include 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, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). 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 id. at 7.21(b)(2). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999). See also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. The Board observes that with the exception of the Veteran's April 1953 discharge examination, his service treatment records (STRs) are among those thought to have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC). The Veteran's discharge examination revealed clinically normal lungs and chest. A chest X-ray was reportedly negative. According to the Veteran's DD 214, his military occupational specialty (MOS) was that of a pigeon fancier. In response to the RO's request for records of in-service asbestos exposure, the NPRC responded in February 2009 that such records were fire related. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. See Russo v. Brown, 9 Vet.App. 46 (1996). According to post-service treatment records, the Veteran was diagnosed with mesothelioma in December 2007. The December 2007 operative report indicates that the mesothelioma was located in the pleura. In a statement dated in August 2008, the Veteran reported in-service exposure to asbestos by working on brakes in the motor pool while waiting to be deployed to New Jersey after completing basic training. He reported that the brake linings were made of asbestos. In a statement received in September 2008, the Veteran reported that before service he worked as a tool maker for six years; after service, he worked as an inspector, superintendant and in road construction. Additional in-service asbestos exposure was reported in his February 2010 notice of disagreement. The Veteran reported being stationed in Canada and that the quarters he was stationed in had heaters with asbestos pads. He also reported asbestos exposure from boiler pipes when quartered in New Jersey. Private nexus opinions from J.W., M.D. were submitted in April 2010 and July 2012. Dr. J.W. opined that the Veteran's mesothelioma was due to asbestos exposure. At his March 2013 hearing, the Veteran reiterated his in-service asbestos exposure from brake work, heaters and boiler pipes. March 2013 Hearing Transcript (T.) at 4-6. He was not aware of confirmed asbestos exposure before or after service. Id. at 7-8. Based on a review of the evidence, the Board concludes that service connection for mesothelioma is warranted. The evidence indicates that the Veteran was exposed to asbestos in service and his mesothelioma is related to in-service asbestos exposure. As such, the evidence supports a finding of service connection. In this case, the Veteran is competent to report his in-service asbestos exposure. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran credible. The Veteran reported having exposure from working on brakes; as discussed above, one of the major occupations involving exposure to asbestos includes manufacture and servicing of friction products such as clutch facings and brake linings. Furthermore, as noted above, service records pertaining to in-service asbestos exposure are among those believed to have been destroyed in a fire. In keeping with the Board's heightened duty to consider the applicability of the benefit of the doubt doctrine, the Board concludes that the Veteran's statements alone are sufficient to establish in-service asbestos exposure. Therefore, the Board concedes that the Veteran was exposed to asbestos while in service. His contentions throughout this appeal, to include his March 2013 testimony, indicate that he had no confirmed asbestos exposure before or after service. The Veteran has not been shown to have engaged in employment either before or after service in any of the major occupations involving exposure to asbestos discussed above. As such, after reviewing all of the evidence of record, the Board concludes that the Veteran's only confirmed asbestos exposure took place in service. The only medical opinions of record, that of Dr. J.W., indicate that the Veteran's mesothelioma is due to asbestos exposure. These opinions are uncontradicted. Such opinions are also consistent with the Adjudication Procedure Manual M21-1 showing that asbestos fibers may produce mesotheliomas of pleura. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). As noted above, the operative report suggests that the Veteran had a mesothelioma of pleura. Since the Board has determined that the Veteran only had in-service asbestos exposure, Dr. J.W.'s opinion establishes a nexus between the Veteran's mesothelioma and his military service. Therefore, in considering the Veteran's competent and credible reports of in-service asbestos exposure, the post-service diagnosis of mesothelioma, as well as the positive nexus opinions from Dr. J.W., and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has mesothelioma related to his military service. The evidence is in favor of the grant of service connection for mesothelioma. Service connection for mesothelioma is, therefore, granted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for mesothelioma is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs