Citation Nr: 1541690 Decision Date: 09/28/15 Archive Date: 10/05/15 DOCKET NO. 10-14 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1943 to December 1945. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a July 2009 rating action of the Department of Veterans Affairs (VA) Regional Office (RO), located in Montgomery, Alabama that denied entitlement to service connection for hearing loss and asbestosis. In April 2015, the Veteran submitted a claim for "Housebound status based on my permanent need for Aid and Attendance." In July 2015, the RO denied entitlement to special monthly compensation based on being housebound or in need of aid and attendance. The Veteran's claim could also be construed as one for special monthly pension on account of being housebound or in need of regular aid and attendance. This issue is referred to the RO for initial adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The asbestos-related lung disease (asbestosis) is the result of a disease or injury in service. 2. Current bilateral hearing loss is the result of a disease or injury in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for asbestosis have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2014). In order to establish service connection for the claimed disorder, there must be: (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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2015). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2015). Establishing continuity of symptomatology under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link current disability to service. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system, including sensorineural hearing loss, are chronic diseases for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b) (2015), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a) (2015), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d) (2015). Asbestosis The Veteran contends that he now had asbestosis as a result of being stationed aboard the USS Nevada (BB-36), where he was exposed to asbestos particles. He recalls observing asbestos particles falling into his bunk. He has further written that while he worked for the Tennessee Valley Authority (TVA) as a chemical analyst and in a smelting company, he was not as severely exposed to asbestos as he was in the US Navy. In 1988, VA issued a circular on asbestos-related diseases that provided 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 were subsequently included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The provisions of M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. outline how to address claims of service connection for disabilities resulting from exposure to environmental hazards. According to those provisions common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard fire-proofing materials, and thermal insulation. It further notes that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis tumors pleural effusions and fibrosis pleural plaques mesotheliomas of pleura and peritoneum cancers of the lung bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. The biological actions of the various fibers differ in some respects, in that chrysotile products have their initial effects on the small airways of the lung cause asbestosis more slowly, and result in lung cancer more often, and crocidolite and amosite have more initial effects on the small blood vessels of the lung, alveolar walls, and pleura, and result more often in mesothelioma. M21-1 further notes that disease-causing exposure to asbestos may be brief, and/or indirect. Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. Mesotheliomas are not associated with cigarette smoking. The M21-1 also notes that the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. 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. M21-1 further indicates that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. It further notes that when deciding a claim for service connection for a disability resulting from exposure to asbestos the adjudicator should determine whether service records demonstrate the veteran was exposed to asbestos during service, ensure that development is accomplished to determine whether the veteran was exposed to asbestos either before or after service, and determine whether a relationship exists between exposure to asbestos and the claimed disease, keeping in mind latency and exposure factors. The Veteran's service records confirm his service aboard the USS Nevada and served as a seaman. His service medical records do not reveal any findings of lung disease. In October 1990, the Veteran underwent a private medical examination. At the exam, it was noted that he had chronic obstructive pulmonary disease (COPD), shortness of breath, and cough. The examiner noted that the Veteran's first exposure to asbestos was in 1943 while aboard the USS Nevada and that after service he worked around boilers for the Tennessee Valley Authority and then for an aluminum smelting company. The physician opined that his first asbestos exposure was in 1943 and his last in the 1960s. A pulmonary function test was performed which produced "normal" results; X-ray films showed irregular densities in the lungs. Upon completion of the examination, the doctor, a specialist in pulmonary medicine, provided the impression that the Veteran had asbestosis. Although the finding of asbestosis was made prior to the current appeal period, it is at least as likely as not that the disease remained in the interim between 1990 and the current claim. Given the age of the USS Nevada, the Veteran's statements, and the private physician's reports; it is also as likely as not that the Veteran had in-service asbestos exposure. It is likely that he also had prolonged post-service exposure; but the 1990 report seems to attribute the current asbestos to in-service and post-service exposures. The Board finds that the evidence is, at the very least, in equipoise. Accordingly, the benefit of the doubt in resolving the issue on appeal shall be given to the Veteran, and service connection for asbestosis is granted. Hearing Loss The Veteran attributes his current hearing loss to the acoustic trauma he endured while aboard the USS Nevada. He maintains that when the USS Nevada unleashed her guns in support of the Allied-war-effort, he was directly exposed to the noise that her weapons produced. Service personnel records show that the Veteran was involved in combat operations in the Pacific and European Theaters of Operations. A further review of the Veteran's records reveals that the Veteran sought treatment through the VA after he left service and until 1950. There are no other records showing treatment for any type of disorder until the Veteran submitted his claim for service connection for bilateral hearing loss and asbestosis. In other words, there is a lack of medical records for nearly fifty-nine years. The Veteran has indicated that he has received treatment for unknown disorders through his local VA medical treatment office. Because these records are not in the claims file, and since these records may provide more information concerning the Veteran's bilateral hearing loss, the claim will be remanded so that these records may be obtained and included in the file for review. The file shows that the Veteran underwent a VA audiological examination in June 2009. The examiner found a current hearing loss as defined by VA, but did not record any history as to when it began. Upon completing the examination, the examiner conceded that the Veteran may have been exposed to acoustic trauma while on active duty. However, the examiner also noted that the Veteran may have been exposed to loud noises after service. As such, per the examiner, the current hearing disability was not related to service. In January 2015, the Veteran underwent another VA audiology examination focused on his claim for service connection for tinnitus. The examiner noted that the Veteran reported that tinnitus had been present for many years, although he could not recall the date of onset. The examiner opined that the tinnitus was associated with the Veteran's hearing loss. Later in January 2015, the RO granted service connection for tinnitus as directly related to service. The Veteran clearly had in-service noise exposure and has current hearing loss disability. The question is whether there is a nexus between the current disability and service. The 2009 opinion is of limited probative value, because the examiner does not appear to have considered when the disability began. The January 2015 opinion indicates that the hearing loss preceded the now service connected tinnitus, and lends support to the conclusion that the hearing loss is related to service. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hearing loss are met. ORDER Entitlement to service connection for asbestosis is granted. Entitlement to service connection for bilateral hearing loss is granted. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs