Citation Nr: 1339903 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-17 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for idiopathic pulmonary fibrosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1963 to December 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Salt Lake City, Utah Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's idiopathic pulmonary fibrosis is reasonably shown to have been caused by his exposure to asbestos in service. CONCLUSION OF LAW Service connection for idiopathic pulmonary fibrosis is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies in this case. However, as the benefit sought is being granted, there is no need to belabor the impact of the VCAA on this matter as any VCAA-mandated notice or duty to assist omission is harmless. Factual background, legal criteria and analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence received 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 record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's service treatment records are silent for complaints or findings concerning a lung disability. The lungs and chest were evaluated as normal on service separation examination in December 1966. A chest X-ray was normal. Service personnel records reflect the Veteran served aboard the USS Whetstone and the USS Alamo. He was a fireman's apprentice, fireman and damage controller. Private medical records disclose that when the Veteran was seen in July 2002, when it was reported he was in his usual state of health until two weeks earlier when a rapid onset of symptoms began. He was found to have mediastinal adenopathy on a CT scan. A lung biopsy the following month demonstrated no granulomatous inflammation. Later in August 2002, a mediastinoscopy with biopsy was performed. The frozen section diagnosis was end stage fibrotic lung. In a September 2002 letter, a private physician stated the biopsy demonstrated significant interstitial lung disease with evidence of honeycomb lung. The Veteran was seen in a VA outpatient treatment clinic in July 2004. It was noted that interstitial pulmonary fibrosis was diagnosed in "2000." There was a possible history of asbestos exposure. He was seen for a pulmonary consultation in August 2009. It was indicated he had been treated for respiratory symptoms for the previous seven years, and that the presumed etiology was either idiopathic or possibly hypersensitivity to an undefined antigen. The examiner noted the Veteran brought private medical records with him which he reviewed. The Veteran reported he was exposed to asbestos in service, and that following service, he had worked in construction, heavy labor and for the railroad. The diagnosis was pulmonary fibrosis of unclear etiology. The examiner stated the Veteran's disease had remained remarkably stable over the years, which made him suspect it might be due to an insult that had resolved. Possibilities included reflux/aspiration and occupational exposure. The examiner stated it was possible it was idiopathic pulmonary fibrosis. The Veteran was again seen in a VA pulmonary clinic in July 2010. The examiner noted that with a stable disease and no significant progression over time, the most recent notes implied that the Veteran's lung disability was likely a result of exposure. It was indicated the Veteran had documentation that he served aboard ships in service that were later noted to have asbestos. It was further noted the Veteran worked in damage control, likely resulting in exposure to asbestos. The assessment was interstitial lung disease. The examiner commented that while it was impossible to ensure the Veteran's interstitial lung disease was a result of asbestosis, it was a very strong possibility given the Veteran's documentation supporting likely exposure. This note was co-signed by the Chief, pulmonary section. In October 2010, the assessment was interstitial lung disease of unclear etiology. The examiner stated an outside biopsy showed evidence of lymphocytic inflammation, but was read as usual interstitial pneumonitis. He added the Veteran had a history of asbestos exposure in service and metal grinding and welding in the railroad. There was also concern about possible aspiration resulting in fibrotic lung disease as well. He commented that all that could be said is that it was idiopathic. It was difficult to say more without review of the outside pathology, slides and images. In March 2011, the Veteran's claims folder was referred to an examiner for an opinion as to whether the Veteran's idiopathic pulmonary fibrosis was due to asbestos exposure in service. The examiner noted he reviewed the claims folder and the VA medical records. He noted the Veteran had pulmonary fibrosis diagnosed in August 2002 following a surgical lung biopsy. It was reported that staining on the biopsy was positive for iron, and that the Veteran did not stain positive for any asbestos fibers. It was indicated the Veteran had been seen by two VA pulmonologists, including the Chief of the pulmonary section, who diagnosed the Veteran as having non-specific pulmonary fibrosis. The VA reviewing provider observed the Chief did not give a diagnosis of asbestosis. The diagnosis was idiopathic pulmonary fibrosis. The provider concluded the Veteran's lung disorder was not caused by or a result of asbestos exposure in service. The VA examiner explained that the Veteran's chest X-ray findings did not show the typical features of asbestos exposure or findings of asbestosis. He pointed out the CT scans did not show typical features of asbestosis or the pleural calcifications seen with asbestos exposure. He also observed the pulmonary function tests showed an obstructive pattern and asbestosis has a restrictive pattern. He stated he relied on the opinions of three pulmonologists at the VA, to include the chief of the pulmonary section. He agreed with the pulmonologists that all that could be said was that the fibrotic lung disease is idiopathic and of unknown etiology. Finally, he reiterated that the 2002 lung biopsy with staining did not show asbestos fibers, which led him to believe the Veteran's current lung condition was not caused by asbestos exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). There are no laws or regulations that specifically address the adjudication of claims seeking service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. VA Manual at Subsection (h). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidence of asbestos exposure: 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 sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). VA has conceded that the Veteran was exposed to asbestos in the course of his duties in service. It is not in dispute that his idiopathic pulmonary fibrosis was initially manifested many years after service. The sole question before the Board is whether the disease is related to his service/ exposure to asbestos therein. The Board acknowledges the March 2011 VA medical opinion against the Veteran's claim. That provider noted that the findings were atypical of asbestos exposure features, and opined that the pulmonary fibrosis was unrelated to service. However, the provider specifically indicated that the etiology of the pulmonary fibrosis was unknown (weighing against certitude that there is no nexus to service).. Notably, the opinion expressed reliance on several VA pulmonologists, including the Chief of the pulmonary section. The Board observes that that very Chief co-signed a statement to the effect that there is a "very strong possibility" the Veteran's interstitial lung disease is due to asbestosis. The Board finds, therefore, the evidence regarding a nexus between the Veteran's pulmonary fibrosis and his exposure to asbestos in service to be in equipoise. Resolving remaining reasonable doubt in the Veteran's favor (as mandated by law; see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102) the Board concludes that the idiopathic pulmonay fibrosis is related to his exposure to asbestos in service, and that service connection for such disease is warranted. ORDER Service connection for idiopathic pulmonary fibrosis is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs