Citation Nr: 1515333 Decision Date: 04/09/15 Archive Date: 04/21/15 DOCKET NO. 13-05 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for prostate cancer, to include as the result of herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1960 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied entitlement to the benefits currently sought on appeal. The Board has reviewed the Veteran's claims folder as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). The issue of entitlement to service connection for prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was exposed to asbestos while in service. 2. The Veteran's currently diagnosed asbestosis is related to his in-service exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for asbestosis have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed in more detail below, sufficient evidence is of record to grant the claim of entitlement to service connection for asbestosis. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. Service connection for asbestosis In general, entitlement to VA disability benefits ("service connection") may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). 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 Hickson v. West, 12 Vet .App. 247, 253 (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2014). The Board must assess the credibility and weight of evidence. See 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 claimant will be given the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). The Board must determine, on a case by case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). A layperson is competent to report on the onset and continuity of symptoms of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish a disability's 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 that describes symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran seeks service connection for asbestosis. See December 2014 Appellant's brief. While there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases, a 1988 VA circular on asbestos-related diseases 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 that circular were included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997). In addition, an opinion by the VA discussed the development of asbestos claims. See VAOPGCPREC 4-2000 (April 13, 2000). The relevant 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." The Board must analyze the Veteran's claim of entitlement to service connection for asbestosis under the criteria of these administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). They provide, in part, that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and the development of the disease. Moreover, the exposure may be direct or indirect, and the extent or duration of the exposure is not a factor. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manuals also acknowledge that the inhalation of asbestos fibers or particles can cause 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). Individuals who smoke cigarettes and have had prior asbestos exposure have an increased risk of bronchial cancer. Occupational exposure to asbestos has been shown in insulation and shipyard workers and others. In addition, the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. Relevant to an asbestosis claim are records showing asbestos exposure in service and pre- or post-service exposure. A determination must be made as to the relationship between the asbestos exposure and the claimed diseases, with consideration of the latency and exposure information relevant to the veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. With regard to Hickson element (1), current disability, the Veteran's private treating physician has diagnosed the Veteran with "chronic obstructive pulmonary disease and restrictive lung disease consistent with asbestosis of the lung." See May 2013 record of Dr. M. It is the doctor's opinion that "his lung disease is due to asbestosis [sic] exposure while working in the Navy." In this he concurs with the Veteran's pulmonologist, who found that the "pleural plaques on ct chest since 2009 [are] consistent with h/o asbestos exposure." See April 2013 record of Dr. P. In May 2012, the Veteran underwent a VA medical exam for respiratory conditions. The diagnostic testing performed included chest x-rays, computed tomography (CT), and pulmonary function testing. On the report, the examiner checked the box diagnosing the Veteran as having "interstitial lung disease," which was specified as "asbestosis." In August 2012, the report of a VA disability benefits questionnaire (DBQ) found that the Veteran did not have asbestosis. This opinion was based the clinician's review of the Veteran's medical record. The report noted that a May 2012 chest x-ray showed a mild left basilar fibrosis/segmental atelectasis; that a March 2009 x-ray showed mild blunting and increased density in the left lateral sulcus consistent with pleural thickening due to prior surgery;" and that "no pleural plaques were seen[,] which is significant since plaques are pathoneumonic for asbestosis disease." It was further noted that "a pulmonary function test pre and post May 2, 2012, for his last C & P here . . . showed basically normal diffusion capacity and only a mild restrictive ventilatory defect." The clinician noted that the "pulse oxygen was normal at 96%" and that "again there was really no indications [sic] of asbestosis on that test result." As reflected in the private medical reports of April and May 2013 and the VA medical exam of May 2012, the Veteran has been diagnosed with asbestosis. Given the finding of no asbestosis by the VA's DBQ clinician in August 2012, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is in equipoise as to whether Veteran currently has asbestosis. Hickson element (1) is therefore satisfied. As for Hickson element (2), an injury or disease during active military service, the Veteran maintains that he was exposed to asbestos while working as a pipefitter in the Navy. See Veteran's June 2013 statement. He claims to have worked with asbestos daily. See Veteran's September 2011 statement. While on board, he constantly welded and soldered pipes. Asbestos, according to the Veteran, was "everywhere" during the course of his work of installing and removing asbestos in boiler rooms and pump rooms. See Veteran's July 2011 statement. The Veteran's service personnel records confirm the Veteran's work as a shipfitter and a fireman apprentice. The Veteran has credibly reported that he had in-service exposure to asbestos while working aboard a vessel. Giving the benefit of the doubt to the Veteran, the Board finds that the Veteran was exposed to asbestos during his active military service. Hickson element (2) is therefore satisfied. With regard to Hickson element (3), nexus, the Veteran's private physicians have provided positive nexus opinions. They find that his asbestosis is due to asbestos exposure while working in the Navy. See May 2013 record of Mr. M. The Veteran's pleural plaques were described as "consistent with a history of asbestos exposure working as a pipe fitter during service years." See April 2013 record of Dr. P. These private treatment records of April and May 2013 diagnose the Veteran as having asbestosis caused by exposure to asbestos during military service. This conclusion is probative of the nexus element, as it is based on a valid medical analysis of the facts of the Veteran's history. Giving significant weight to the more recent nexus opinions of the Veteran's private treating physicians, the Board finds that Hickson element (3) is satisfied. There is no evidence of pre-service or post-service occupational or other asbestos exposure. See May 2013 record of Dr. M. Upon application of the benefit-of-the-doubt doctrine, by which where all reasonable doubt is resolved in favor of a 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) (West 2014); 38 C.F.R. § 3.102 (2014). ORDER Entitlement to service connection for asbestosis is granted. REMAND Service connection for prostate cancer The Veteran seeks service connection for prostate cancer. He alleged exposure to herbicides while on the USS Kitty Hawk and that the exposure caused his prostate cancer. See Veteran's statements of June 2013 and July 2011. Furthermore, he has indicated that he had contact with aircraft that returned from Vietnam which carried herbicides. According to the Veteran, the planes aboard the USS Kitty Hawk "were leaving with ordinance daily and returning empty; we were there when they were spraying [A]gent [O]range to the max." See Veteran's June 2013 statement. He has stated, "I know we were flying into Vietnam and operating there for at least a month. We breathed the air not knowing what was in it. I believe we did a lot of classified things." See Veteran's July 2011 statement. The Veteran does not claim to have set foot on the land mass of Vietnam or to have traveled along its inland waterways. The Board notes that the claims file documents that the USS Kitty Hawk was in the official waters of Vietnam on December 20, 1962 during the Veteran's service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The United States Court of Appeals for the Federal Circuit has held that 38 C.F.R. § § 3.307(a)(6)(iii) was reasonably interpreted by VA as requiring that a service member had actually set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection. Haas v. Peake, 525 F.3d 1168 (2008), cert denied, 129 S. Ct. 1002, 173 L.Ed. 2d 315 (2009). The Board does not find a basis on the current record to find that the Veteran had presumed exposure to herbicides. However, it does not appear that the AOJ has investigated his claim that he was directly exposed to herbicides as a result of contact with the aircraft aboard ship that had returned from Vietnam. In this regard, VA's Adjudication Procedures Manual (M21-1MR) provides that, in all cases where a Veteran claims that he served on a ship that stored or transported herbicides, the AOJ should place a copy of the U.S. Army and Joint Services Records Research Center's (JSRRC's) memorandum shown in M21-1MR, IV.ii.2.C.10.m, which addresses such contentions, in the Veteran's record. Therefore, such should be accomplished on remand. Additionally, it appears that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. As those records may be potentially relevant to the prostate cancer issue on appeal, the Board finds that a remand is necessary to obtain those records as well. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from any VA medical facility where the Veteran may have received treatment for his prostate cancer since June 2011 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his prostate cancer which is not already of record. After securing the necessary release forms, attempt to obtain and associate those identified treatment records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Obtain from the Social Security Administration, or other state agency administering disability benefits, the records pertinent to the Veteran's claim for disability benefits as well as the medical records relied upon in considering that claim. Any negative search should be noted in the record and communicated to the Veteran. 4. Through appropriate sources, attempt to obtain all relevant documents, specifically including deck logs, that pertain to the USS Kitty Hawk's location in Vietnamese waters during the time the Veteran was on board. Those documents should be associated with the claims file. If records cannot be obtained and further attempts would be futile, such should be noted in the claims file, and the Veteran should be notified. 5. Associate with the claims file the May 2009 JSRRC Memorandum noted in the Veterans Benefits Administration Adjudication Procedure Manual (M21-1MR), Part IV, ii, 2, Section C, 10, m. The Veteran should be so notified of this memorandum. 6. Following the above development, review the claims file and readjudicate the Veteran's claim of entitlement to service connection for prostate cancer, to include as the result of herbicide exposure. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ ARIF SYED Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs