Citation Nr: 1538461 Decision Date: 09/09/15 Archive Date: 09/18/15 DOCKET NO. 13-33 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory disability, to include asthma and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1979 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A transcript of the hearing is of record. FINDINGS OF FACT 1. During service, the Veteran was exposed to asbestos and other hazardous chemicals while performing his duties as a hull technician in the Navy. 2. Symptoms of asthma and COPD were manifested during service. 3. Symptoms of asthma and COPD have recurred since service. 4. The Veteran currently has asthma and COPD. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for asthma and COPD are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). For reasons explained below, the Board is granting service connection for asthma, to include COPD. Given the favorable outcome of the appeal, which is a full grant of the benefits sought, the appeal has been substantiated, obviating the need for discussion of how VA fulfilled the duties to notify and assist in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is variously diagnosed with asthma and/or COPD. Neither diagnosis is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 were later included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (M21-1). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000. The aforementioned 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 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 and/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. As to occupational exposure, exposure to asbestos has been shown in manufacturing and servicing of friction products such as clutch facings and brake linings, and other occupations. 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. The applicable section of Manual M21-1 also notes that 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. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because 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). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21(b). The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service, and 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. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). Service Connection Analysis for Respiratory Disability The Veteran contends that the current respiratory disability, variously diagnosed as asthma and COPD, was either caused or aggravated by exposure to asbestos, welding fumes, and chemicals during service. He asserts that he first became aware of a respiratory problem during service and has had breathing problems since service, which have progressively worsened over time. See May 2013 Notice of Disagreement. After review of all the lay and medical evidence of record, the Board finds that there was a respiratory "injury" (i.e., exposure to asbestos) during service. Despite some evidence suggesting that a respiratory disability existed prior to service, the service treatment records, which are complete, show no respiratory disability noted at service entrance, and there is no clear and unmistakable evidence of a respiratory disability prior to service; therefore, the lungs and respiratory system are presumed sound at service entrance. The DD Form 214 and service personnel records show that the Veteran served as a hull technician aboard the U.S.S. Samuel Gompers (AD-37) during his naval service. Exposure to asbestos and other hazardous chemicals is consistent with the conditions, circumstances, or hardships of the Veteran's service as a hull technician. A June 1983 service health record entry reveals that the Veteran was exposed to asbestos during service and was part of the Asbestos Medical Surveillance Program; therefore, the evidence demonstrates exposure to asbestos during service. The Board finds that symptoms of respiratory disability were manifested during service. The service treatment records show treatment for various respiratory complaints, to include chest congestion, wheezing, and coughing throughout service. In June 1983, the Veteran demonstrated abnormal pulmonary function tests and received treatment for asthma. On the June 1983 Periodic Health Evaluation Respiratory Questionnaire, he reported a cough, episodes of cough and phlegm lasting three weeks or more, wheezing, and shortness of breath; therefore, the evidence demonstrates symptoms of respiratory disability during service. The evidence is at least in equipoise on the question of whether symptoms of the current respiratory disability such as chest congestion, wheezing, coughing, and shortness of breath have recurred since service separation. The evidence in favor of a finding of recurrent post-service symptoms since service includes the Veteran's June 2015 Board hearing testimony and the May 2013 statement reporting that respiratory symptoms, including wheezing and shortness of breath, recurred and progressively worsened since service. The Veteran is competent to report the respiratory symptomatology he has experienced since service, and there is no evidence of record that contradicts the account of recurrent symptomatology since service; therefore, the statement is deemed credible and of significant probative value. The Board notes that the June 2012 VA examiner opined that it was less likely as not that asthma was incurred in or caused by exposure to asbestos during service; however, the VA examiner reasoned that the Veteran had asthma as a young child. As explained above, no respiratory disability was noted at service entrance, and a pre-existing respiratory disability has not been established by the high evidentiary standard of clear and unmistakable evidence; therefore, the June 2012 VA medical opinion is based on the inaccurate factual premise of pre-existing respiratory disability, so is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). Resolving reasonable doubt in favor of the Veteran, the Board finds that there was exposure to asbestos during service, symptoms of respiratory disability were manifested during service, and symptoms of respiratory disability have recurred since service separation, to warrant direct service connection for asthma, including COPD, under the provisions of 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for asthma, to include COPD, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs