Citation Nr: 1530991 Decision Date: 07/21/15 Archive Date: 08/05/15 DOCKET NO. 11-04 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a lung disability, to include asbestosis and asbestos-related bilateral interstitial fibrosis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran later testified before the undersigned in May 2015. A transcript of that hearing is of record. FINDING OF FACT 1. The Veteran was exposed to asbestos in service. 2. Affording him the benefit of the doubt, the Veteran's currently diagnosed asbestosis is causally related to asbestos exposure during active service. 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. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (West 2002 & Supp. 2014); 38 C.F.R. § 3.303(a) (2014). "To establish a right to compensation for a present disability, a Veteran must show: '(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'- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). VA has issued a circular on asbestos-related diseases, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, (1) that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; (2) that VA is to develop any evidence of asbestos exposure before, during and after service; and (3) that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors; 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. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. As noted above, high exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions 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. VAOPGCPREC 4-00. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran served in the Army. His military occupation (MO) was amphibian operator and maintenance mechanic. He asserts that he suffers from asbestosis due to asbestos exposure in service. According to the May 2015 hearing testimony, he contends that he was exposed to asbestos in conjunction with his duties as a vehicle mechanic. His work included changing break shoes on various vehicles, rebuilding engines, and rebuilding injectors. He also packed vehicle exhaust systems with asbestos insulation, and he insulated exhaust pipes with sheets of asbestos. Although asbestos exposure is not confirmed by the record, the Board finds that the weight of the evidence indicates that the Veteran was exposed to asbestos. Importantly, according to M21-1, Part VI, para. 7.21(b), a major occupation involving exposure to asbestos is the manufacture and servicing of friction products such as clutch facings and brake linings. The Veteran's Military Occupational Specialty was that of a motorized vehicle mechanic. As the Veteran was a mechanic for large and small vehicles, which likely included the servicing of friction products (to which he testified during the May 2015 hearing), the Board concludes that he was exposed to asbestos. The Veteran was diagnosed with asbestosis and with asbestos-related bilateral interstitial fibrosis by multiple physicians on multiple occasions (January 2000, August 2000, April 2008, and March 2009). All diagnoses were based on the Veteran's history of occupational exposure and subsequent latency period of the disease. An August 2010 VA examiner opined that the Veteran's testing was negative for asbestos, and that no pathology existed which would support such a diagnosis. The examiner also related that since no evidence supported the Veteran's in-service asbestos exposure, the Veteran must have been exposed to the asbestos in his post-service career as a dump truck driver. The examiner did acknowledge that the Veteran had multiple opinions from other physicians acknowledging an asbestosis diagnosis. The Board may assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Veteran underwent one VA examination. The August 2010 VA examination did not result in a diagnosis of asbestosis. The Board finds that the VA examiner's opinion regarding the Veteran's diagnosis has low probative value, as it does not adequately account for the Veteran's reported lay accounts of the in-service asbestos exposure, for the descriptions of the onset of his symptoms, and for his reports of present symptomology. Lastly, the Board notes that the examination was performed by an orthopedist who was a spine specialist, and thus, there is also no indication that this examiner's opinion is entitled to any greater weight based on any special familiarity with lung diseases. As such, the Board finds that the examiner's opinion is no more persuasive than any other opinion in the record. Thus, in consideration of the medical and lay evidence of record, the Board finds that the question of whether the Veteran has asbestosis that are related to his active service is at least in relative equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for asbestosis is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2014). The Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER Entitlement to service connection for a lung disability, to include asbestosis and asbestos-related bilateral interstitial fibrosis, is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs