Citation Nr: 1601559 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 12-30 729A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his caretaker ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from February 1956 to September 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is now with the RO in St. Petersburg, Florida. In October 2015, the Veteran appeared for a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's asbestosis is a result of in-service asbestos exposure. 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 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. In the instant decision, the Board grants the benefit sought. Therefore, any failure to meet these duties is harmless error and need not be discussed further. 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 (West 2014); 38 C.F.R. § 3.303(a) (2015). "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). The Veteran filed a claim of service connection for asbestosis in April 2009. The Veteran described being exposed to asbestos while he served in the Navy aboard the USS Shangri-La. The Veteran also described being exposed to asbestos while his ship was in dry dock in Washington during 1957, when he worked in overhaul duties removing pipe lines. Last, he described sleeping under asbestos wrapped pipes for two years on the USS Shangri-La, inhaling and swallowing asbestos fibers which fell daily because the Veteran slept directly below the flight deck. At the outset, the Board finds that the Veteran has satisfied the first element of service connection, present disability. March 2009 VA treatment notes document a diagnosis of asbestosis. The VA examination conducted for the Veteran's claim in January 2010 documents a diagnosis of pleural asbestosis. This diagnosis is repeated numerous times throughout the Veteran's VA treatment records. Accordingly, the Board finds that the first element of service connection is met. Next, the Board finds that the Veteran was exposed to asbestos during his active service, satisfying the second element of service connection. In this case, VA treatment records and the VA examinations of record acknowledge that the Veteran was exposed to asbestos while he was in active duty. Further, the Veteran has competently and credibly described the circumstances during his service that lead to his exposure. Accordingly, the second element of service connection is met. Thus, to show entitlement to service connection, the Veteran must establish a causal link between his asbestosis and in-service exposure to asbestos. In this regard, the Board notes that there are conflicting medical opinions of record. The VA examiner who rendered opinions in January 2010 and April 2010 opined that the Veteran's asbestosis was most likely related to the post-service exposure to asbestos. As rationale, the examiner focused on the fact that the Veteran had a much greater civilian exposure to asbestos than his service exposure. However, in his October 2015 hearing before the Board, the Veteran testified that he was never permitted to be close to asbestos during his post-service construction career without protective equipment. This tends to rebut the January 2010 and April 2010 VA examiner's opinion that the Veteran's civilian employment post-service was the more likely cause of asbestosis. In contrast to the January 2010 and April 2010 VA opinions, the Veteran's VA physician who treated the Veteran for the first few years of his claim and appeal period provided a favorable nexus opinion in March 2010. Specifically, the examiner found that the Veteran's Navy asbestos exposure was a certain component of the Veteran's total asbestos damage. Thus, the record contains medical opinions from physicians supporting and opposing the Veteran's claim. The Board finds that the opinion given by the VA physician in March 2010 in favor of the Veteran's claim is more probative than the negative opinions from January and April 2010. The negative opinions were based on an assumed fact that was rebutted by the Veteran in his October 2015 hearing. Specifically, the Veteran wore protective equipment when working with asbestos while working in construction, which tends to rebut the January and April 2010 VA opinions. The favorable opinion from March 2010 acknowledges the Veteran's in-service exposure to asbestos, reflects knowledge of the Veteran's medical history, to include when the Veteran initially was diagnosed with asbestosis, and provided adequate rationale for its conclusion. Given the above, and resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran has shown that his present diagnosis of asbestosis is related to his in-service exposure to asbestos. Accordingly, service connection must be granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for asbestosis is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs