Citation Nr: 1501326 Decision Date: 01/12/15 Archive Date: 01/20/15 DOCKET NO. 11-17 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from July 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran has asbestosis due to exposure to asbestos during active service. CONCLUSION OF LAW The criteria for service connection for asbestosis have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § § 3.303. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 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 Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The above mentioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers or particles can result in fibrosis and tumors, and produce 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. Occupational exposure to asbestos has been shown in insulation and shipyard workers and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Evidence and Analysis Service treatment records show no indications of any pulmonary problems in service. At his July 1969 examination prior to release from active duty, the evaluation for lungs and chest was normal. In an April 1999 statement, Mark S. Klepper, M.D., noted that he had reviewed a chest x-ray of the Veteran dated in October 1998. He noted findings of pleural abnormalities of parenchymal opacities consistent with pneumoconiosis, "namely right chest wall plaques seen in profile..." In a May 2001 letter, John D. Hughes, M.D., stated that earlier that month he had evaluated the Veteran, who was with consistent dyspnea on exertion with strenuous exertion. The Veteran had a daily cough, mostly associated with a postnasal drip and sinus. The Veteran occasionally coughed up blood and brown blood from the nose, implying a sinus etiology. The Veteran had had one episode of pneumonia. He was a nonsmoker. Dr. Hughes noted that the Veteran had a history of asbestos exposure that began in 1960 when he did brake work while working at a gas station. From 1965 to 1969 the Veteran was in service and was stationed on a ship that had asbestos pipes and insulation, and he worked on aircraft with asbestos insulation on the afterburner mechanism. From 1969 to the present, the Veteran worked at a can making plant. From 1969 to 1980 he worked around asbestos used as an insulating agent on the ovens. Dr. Hughes indicated that the Veteran did not have any associated past medical history. Review of systems was positive for chest pain with exertion. Lung examination revealed: no dullness to percussion; normal tactile fremitus; no egophony; and nonclearing rales isolated to the posterior to lateral lung base on the left and to the lateral aspect of the right lung base. Pulmonary functions were normal. Chest x-ray showed bilateral, irregular, small, parenchymal opacities that were mild to moderate in abundance. The Veteran had no pleural thickening and no diaphragm calcifications. Dr. Hughes diagnosed asbestosis without physiologic impairment; and no evidence of a respiratory tract malignancy. The report of a June 2010 VA examination shows that the Veteran reported he worked as an aircraft mechanic on the USS Intrepid. His civilian occupation for 34 years was as a mechanic at a canning company, which apparently ended nine years before the examination date. Since then he had worked part-time as a camp ground supervisor. He had lost no work time over the last year due to medical reasons or had any work accommodations or restrictions. The report noted that due to his age the Veteran does not run; and he had no restrictions of activities of daily living. The Veteran reported he had exposure to asbestos due to brake work in the 1960s, and had asbestos exposure also during his Navy service aboard the USS Intrepid from working on aircraft with asbestos in the afterburner mechanism. He also had asbestos exposure after service working in a canning plant that used asbestos in the pipes exiting from ovens. The examiner discussed the findings contained in the letters from Dr. Klepper and Dr. Hughes. The Veteran reported that he continues to notice occasional mild shortness of breath only with strenuous exertion; he had never been hospitalized or otherwise treated with medication for asbestosis; and never had bronchodilators or other such therapy. He reported he had no cough or chest pains, and that he had never been a smoker. On examination the lungs were clear with no rubs, rales or wheezes. Radiographs showed that the lungs were clear without consolidation, effusion, or pneumothorax; and there was no evidence of pleural plaque/calcification. The impression was "no cardiopulmonary abnormality as above." The examiner concluded the report with an opinion that the diagnosis of asbestosis is the correct diagnosis as opposed to a diagnosis of pneumoconiosis. The examiner further opined that he could not resolve the issue of whether there was an etiology related to asbestos exposure during service, without resort to mere speculation: the "Veteran has had multiple separate episodes of exposure to asbestos both prior to active duty, during active duty, and after active duty. Any one of these or all of these could have contributed to his present diagnosis of asbestosis." VA treatment records on file dated from August 2010 to August 2013 show no indications of treatment for pulmonary abnormalities. The Veteran asserts that he developed asbestosis as a result of exposure to asbestos during service while serving on the USS Intrepid, including associated with aircraft maintenance duties. The Veteran's service records do not expressly show that he was exposed to asbestos during military service. However, personnel records reflect service aboard the USS Intrepid from June 1968 to February 1969; and that he had duties in service associated with aircraft maintenance in close proximity to aircraft. The USS Intrepid was constructed during World War II. Notably, according to VA's Adjudication Procedure Manual varieties of asbestos were used extensively in military ship construction during World War II. See M21-1MR, Part IV, Subpart ii, Ch. 2, sec. C(9)(g). The Veteran has credibly reported he had in-service exposure to asbestos aboard the USS Intrepid. Given his service aboard the USS Intrepid, there is a likelihood (greater than 50 percent probability) that the Veteran was exposed to asbestos during his active military service. Although the Veteran apparently did not seek treatment for respiratory complaints until 1998, over 29 years after his separation from military service, this is not inconsistent with the latent period for asbestosis. 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. See M21-1MR, Part IV, Subpart ii, Ch. 2, sec. C(9)(d). Diseases associated with exposure to asbestos are fibrosis, the most commonly occurring such disease is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and genitourinary system, except the prostate. M21-1MR, Part IV, Subpart ii, chapter 2, section C.9.b. As reflected in the June 2010 VA examination report, the Veteran has been diagnosed with asbestosis; and although that examiner noted the Veteran's reports of exposure both during and outside of service, the examiner opined essentially that the cause of the Veteran's asbestosis is as likely as not linked to his exposure to asbestos in service. This evidence of diagnosis and etiology linked to service is probative as it is based on a valid medical analysis of the significant facts of the case in reaching the conclusions as to the diagnosis and nexus opinion. After reviewing the evidence of record, the Board finds that the VA examiner's opinion has probative value, and there is no countervailing opinion or other material evidence. On applying the benefit of the doubt doctrine, where all reasonable doubt is resolved in favor of the Veteran when the evidence is in relative equipoise, the Veteran's claim for service connection for asbestosis is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for asbestosis is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs