Citation Nr: 1318368	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  10-16 704	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for a lung disability, to include as due to exposure to asbestos in service. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Fetty, Counsel

INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002).  

The Veteran performed active naval service from May 1950 to March 1954. 

This appeal comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. 

When this case was most recently before the Board in February 2013, it was decided in part and remanded in part.  

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.


FINDING OF FACT

The Veteran's current lung disability is etiologically related to his exposure to asbestos in service.


CONCLUSION OF LAW

Lung disability was incurred during active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012).

Legal Criteria

Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime).  38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303 (2012).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

The Veteran contends that service connection is warranted for his lung disability because it is due to his exposure to asbestos during active service.  

There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary 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, 1988) (DVB Circular), 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, M21-1 (M21- 1), Part VI, 7.21.  The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under these guidelines.  Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) 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.  VA O.G.C. Prec. Op. No. 04-00.

Manual M21-1, Part VI, provides that asbestos fibers, when inhaled or swallowed, can produce fibrosis and tumors of the larynx, pharynx, lungs, gastrointestinal tract, and urogenital system.  They can produce pleural effusions and pleural plaques.  Persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer.  The risk of bronchial cancer is further increased in current cigarette smokers who have asbestos exposure.  About 50 percent of those with asbestosis will eventually develop lung cancer.

Paragraph 7.21b of M21-1, Part VI, provides that certain occupations such as work in shipyards, insulation work, demolition of old buildings, and installation of military equipment involve exposure to asbestos.  Significantly, the latent period between exposure and the development of disease varies from 10 to 45 or more years, and significant exposure may occur in as brief a period as a month or two, even for an indirect bystander.  

Paragraph 7.21c of M21-1, Part VI, provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  Symptoms and signs might include dyspnea on exertion, rales over the lower lobes, pulmonary function test impairment, and emphysema.  

Paragraph 7.21d.(1) of M21-1, Part VI, provides:

When considering VA compensation claims, rating specialists must determine whether or not military records demonstrate evidence of asbestos exposure in service.  Rating specialists must also assure that development is accomplished to determine whether or not there is preservice and/or post-service evidence of occupational or other asbestos exposure.  A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above.  

VAOPGCPREC 4-2000 includes the following guidance:

The determinative issues in an asbestos-related claim would generally include a medical diagnosis and medical causation.  For example, the asbestos-related diseases referenced in paragraph 7.21 of VBA Manual M21-1, Part VI, such as asbestosis, pleural effusions and fibrosis, pleural plaques, and mesothelioma of pleura or peritoneum, must first be medically diagnosed and then shown to be medically related to in-service exposure to asbestos.  See Nolen, 12 Vet. App. at 351 (finding no medical-nexus evidence between the veteran's asbestosis and his service exposure).  Therefore, although a claimant may provide competent evidence of a current disability and of in-service exposure to asbestos, the claimant would still need to present competent medical evidence of a nexus relating the current disability to in-service exposure to asbestos.  

In the present case, service records do not demonstrate evidence of asbestos exposure.  The Veteran's service treatment records (STRs) reflect that he underwent chest X-ray examinations several times during active service.  All chest X-rays were normal.  A March 1954 separation examination report reflects that the lungs and chest were normal.

The Veteran submitted a service connection claim in November 2007 and mentioned coughing at night.  In July 2009, a service comrade reported that they had all been exposed to asbestos fibers aboard ship.  

A July 2009 VA respiratory compensation examination report reflects that the diagnosis was, "No evidence of asbestos related conditions at this time."

In July 2009, the Veteran submitted an August 2005 private X-ray report and private computerized tomography.  The X-ray report notes possible pleural plaque, but the CT study showed no evidence of that.  Rather, the CT study showed four pulmonary nodules and prior granulotomous disease.

In March 2011, the Veteran testified at a videoconference before the undersigned Veterans Law Judge that during active service he inhaled a lot of dust from leather and linen work (he did not mention asbestos).

In an April 2011 Remand, the Board conceded that the Veteran was exposed to asbestos fibers during active service.  As noted above, in VAOPGCPREC 4-2000, VA's General Counsel suggested that a claimant may provide competent evidence of in-service exposure to asbestos.  

A May 2011 VA examination report contains a diagnosis of asbestos exposure with bilateral pulmonary nodules and chronic obstructive pulmonary disease.  The examiner opined that: (1) the pulmonary nodules were nonspecific for asbestos and other lung diseases and exposures (2) hyperinflation of the lungs would be secondary to obstructive lung disease-not asbestos; and (3) pulmonary nodules were unlikely to have been caused by exposure to asbestos.  No etiology of chronic obstructive pulmonary disease was offered.

In July 2012, a VA compensation examiner reported that the Veteran did not have, nor had he ever had, a respiratory disease.  Confusingly, the examiner then discussed respiratory abnormalities that were currently shown.  The examiner noted that hyperinflation was shown in 2010.  The examiner found evidence that was consistent with chronic obstructive pulmonary disease (COPD).  Current pulmonary function tests showed disabling spirometry results.  The physician then concluded that the Veteran likely had COPD and bronchitis.  The physician dissociated these from asbestos exposure. 

The Board remanded the case in February 2013 and asked the July 2012 examining physician to clarify the previous opinion concerning the etiology of the lung disorders shown.  The Board's remand instruction states, "...provide an opinion with respect to the Veteran's chronic pulmonary disease and bronchitis as to whether there is a 50 percent or better probability that the disorder is related to the Veteran's active service."  

In response, in April 2013 the VA examiner reviewed the case and provided this opinion: 

That the lung lesion have remained stable suggest that the cause is likely evidence of a quiescent granulatomous disease.  In addition, this author could locate no compelling entries concerning any chronic pulmonary disease and bronchitis.  Indeed, at most clinical encounters, his lungs are clear, he is physically active and offers no complaints RE the respiratory system thus, it is less likely as not (50% probability or less) that any of the respiratory complaints made by the Veteran are related to or incurred in military service.  

While the above examiner appears to have dissociated COPD and bronchitis from active service, the examiner also clearly acknowledged a 50 percent probability of association with active service.  Thus, the opinion, although confusing, is mildly favorable and another remand for clarification will not be needed.  

Concerning the weight to be afforded this opinion, in Reonal v. Brown, 5 Vet. App. 458, 461 (1993), the Court stressed that a medical opinion based upon an inaccurate factual premise has no probative value.  In April 2013, the VA physician made the following statement: "In addition, this author could locate no compelling entries concerning any chronic pulmonary disease and bronchitis."  While the physician could not locate a compelling entry in the claims file, such an entry does exist and the Board clearly identified that entry in the July 2012 VA compensation examination report.  In that report, although a physician indicated that the Veteran has never been diagnosed with a respiratory condition, the physician then explained that the Veteran should "follow up with his PCP for what I do believe is COPD issues associated with his history of tobacco use and the coughing which is most likely bronchitis."  The physician referenced recent pulmonary function test results as a basis for the diagnoses of COPD and bronchitis.  Therefore, the April 2013 opinion appears to be based on correct facts-the facts being that chronic pulmonary disease and bronchitis are clearly shown as diagnoses, notwithstanding the fact that the offeror of the April 2013 opinion does not find the evidence for such diagnoses to be compelling. 

The April 2013 medical opinion also appears to be supported by rationale.  Because the April 2013 medical opinion is based on correct facts and is supported by a rationale, it must be accorded weight in this matter.

After considering all the evidence of record, including the Veteran's testimony, the Board finds that the evidence is in relative equipoise.  Service connection for the Veteran's current lung disability is therefore in order.


ORDER

Service connection for lung disability is granted.



______________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs