Citation Nr: 1642453 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 10-05 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1972. This matter is before the Board of Veterans' Appeals ("Board") on appeal from a January 2009 rating decision of the Department of Veterans (VA) Regional Office (RO) in Detroit, Michigan. In November 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Board at the RO (Travel Board hearing). A transcript of the hearing is of record. In January 2015, the Board remanded the claim for further development, to include arranging for a VA medical examination for an opinion as to whether the Veteran had a current diagnosis of asbestosis, taking into account the Veteran's duties as a missile facilities specialist, the Veteran's lay statements and testimony, and the February 1972 (post-service separation period) medical examination report showing a possible abnormal chest x-ray and history of post-service asbestos exposure. In March 2016, the Board again remanded the claim, finding that the March 2015 VA examination and opinion, obtained pursuant to the Board's previous January 2015 remand, was inadequate to decide the claim because it failed to substantially comply with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Accordingly, the Board requested a VA medical addendum from the VA examiner who provided the March 2015 opinion to determine whether the Veteran currently had asbestosis, and if so, the nature and etiology of the disease. Accordingly, in April 2016, a medical addendum was provided, and the claim was then readjudicated in an April 2016 supplemental statement of the case (SSOC), which continued to deny the claim. The claim has since returned to the Board. This appeal was processed electronically using the Veterans Benefits Management System. Additionally, a review of the Virtual VA electronic case management system reveals additional documents pertinent to the present appeal. FINDING OF FACT The probative evidence of record demonstrates that the Veteran has a current diagnosis of asbestosis that is causally related to his exposure to asbestos during his active military service. CONCLUSION OF LAW The criteria for service connection for asbestosis have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties Since the Veteran's claim of entitlement to service connection for asbestosis is being granted, a discussion of whether VA has met its duties of notification and assistance under the Veterans Claims Assistance Act of 2000 ("VCAA") is not required, and deciding the appeal at this time is not prejudicial to the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). See also Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010) (observing that an error that does not affect the outcome of a case is not prejudicial); Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009). II. Service Connection for Asbestosis Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is granted when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); See 38 C.F.R. § 3.303(a). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other 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 been included in VA Adjudication Procedures Manual ("Manual"), M21-1, Part IV, Subpart ii, Chap. 1, Sec. I., Para. 3 (August 7, 2015) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The aforementioned provisions of M21-1 have been rescinded and reissued as amended in 2015. See M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, entitled "Service Connection for Disabilities Resulting from Exposure to Environmental Hazards or Service in the Republic of Vietnam (RVN):" VA must analyze the Appellant's claim of entitlement to service connection for asbestosis, under these administrative protocols using the specified 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. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2f. 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 insulation, mining, milling, demolition of old buildings, carpentry and construction, shipyard workers, and others including workers involved in the manufacture and servicing of friction products, such as clutch facings and brake linings. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2a-g. The Board has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board must assess the credibility and weight of the evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has considered the Veteran's statements and testimony pertaining to his relationship between asbestosis and his active service. Specifically, the Veteran asserts direct exposure to asbestos during his time in the Air Force as a missile facilities technician. See March 2002 Addendum to Statement in Support of Claim; See also November 2014 Board Hearing Transcript (indicating that his direct exposure to asbestos was a result of, among many factors, sleeping underneath a pipe that had asbestos in it and cleaning tools and equipment contaminated by asbestos). Significantly, the Veteran testified that he worked in and around manufacturing facilities and equipment, and his service personnel records confirm that his Military Occupational Specialty (MOS) was as a Missile Facilities Specialist. VA's Adjudication Procedures Manual expressly identifies the manufacture and installation of products, such as military equipment, as one of many listed occupational exposures to asbestos. See M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2.d. Moreover, the Veteran's particular MOS has been found by the VA to involve "probable" exposure to asbestos. See generally M21-1, Part IV, Subpart ii, Chap.1, Sec. I, Para. 3 (information on developing claims for asbestos-related diseases); see also "Asbestos MOS Handout," M21-1, Part IV, Subpart ii, Chap. 1, Sec. I, Para. 3.c, (listing missile technician as an MOS that is "probable" for asbestos exposure). Accordingly, the Board finds the Veteran's account of experiencing in-service asbestos exposure to be credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has also considered all of the Veteran's service treatment records, military personnel records, and VA examinations. Of particular significance, in February 1972, approximately a month after his separation from service, the Veteran was notified, through a March 1972 letter, of abnormal chest x-rays. See February 1972 Report of Medical Examination for Disability Evaluation. Subsequently, in August 2006, the Veteran was diagnosed with asbestosis, among other pulmonary diagnoses to include emphysema, dyssomnia (associated with sleep disordered breathing, depression and inadequate sleep hygiene). See August 2006 VA Clinical Polysomnograph Report. Subsequent VA treatment records also reference his history of asbestosis. See, e.g. June 2008 VA Pulmonary Consult Response (noting x-ray abnormalities and that "asbestosis cannot be ruled out"); February 2010 VA Medical Treatment Record (reflecting an active problem list that includes asbestosis); June 2011 VA Pre-Admission Testing Consult Response (listing asbestosis under "active problems"); September 2015 VA Ambulatory Care Outpatient Follow-Up Progress Note (indicating a diagnostic impression of "Asbestosis with some restriction physiology on the PFT (Pulmonary Function Test)"); March 2016 VA Pulmonary Progress Note (stating that the Veteran "is a 67 year old male patient with a history of asbestosis."). Therefore, the Board finds that the record is replete with evidence of a current diagnosis of asbestosis. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted for a disability that manifests at any point during the pendency of a claim). As noted, the Veteran was afforded a VA examination in March 2015 with an addendum opinion in April 2016. The VA examiner found against a relationship to service on the basis that asbestosis had not been definitively diagnosed. The VA examiner noted that the Veteran's previous November 2014 CT scan revealed findings including "small irregular opacities in the mid and lower lung fields"; "a fine reticular pattern in the left lower lobe, [which] may represent a combination of alveolitis and interstitial fibrosis"; and "pleural parenchymal thickening and scarring." Accordingly, the examiner determined that the Veteran's diagnosed "lung nodule, pleural effusion and other lung changes may be due to asbestosis," but also stated that "these changes can be due to other lung conditions also." See March 2015 VA Respiratory Conditions Disability Benefits Questionnaire (DBQ) and Medical Opinion. Accordingly, in the absence of a "confirmatory biopsy report of asbestosis," the examiner determined that he could not provide a definitive diagnosis of asbestosis without resorting speculation. See April 2016 VA Medical Opinion (echoing the previous examination report and opinion without additional analysis or comment). The Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 vet. App. 614 (1992). In this case, the Board declines to accept either the March 2015 VA examination report or the April 2016 addendum opinion, as they fail to account in any meaningful way for the repeated diagnoses of asbestosis throughout the Veteran's VA treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, in determining that the Veteran's lung pathology was unrelated to his active service, the VA examiner failed to offer any alternate etiology for the Veteran's identified lung pathology, simply stating that his identified pulmonary manifestations "can be due to other lung conditions also." See Nieves-Rodriguez, 22 Vet. App. at 304. Thus, the March 2015 VA examination report and April 2016 addendum lack probative value. See id. The Board acknowledges that the Veteran also had post-service exposure to asbestos working in a steel mill. See November 2014 Board Hearing Testimony. However, he testified that his post-service occupational exposure was mitigated by the fact that he was required to wear the proper protective equipment at all times. See id. By contrast, the Veteran reported that he never wore any protective equipment during his active military service. See id. The Board finds the Veteran's statements and testimony to be both competent and credible. See Washington v. Nicholson, 19 Vet. App. 363, 368 (2005) (holding that the appellant was competent to testify as to factual matters of which he had first-hand knowledge); See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) and Baldwin v. West, 13 Vet. App. 1 (1999) (reflecting that determinations concerning the credibility of the evidence are within the purview of the Board). In sum, the record reflects diagnostic impressions of asbestosis during the appellate period. Furthermore, the Veteran has additional lung pathologies identified on VA examination, including pleural effusion and pleural scarring that have been linked to exposure to asbestos fibers, according to the Manual. See M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2.b (reflecting that "[i]nhalation of asbestos fibers can produce . . . pleural effusions and fibrosis [and] pleural plaques (scars of the lining that surrounds the lungs)"). There is additionally competent and credible evidence that the Veteran was exposed to asbestos during his active military service, without any protective equipment, and pulmonary evaluation one month after his discharge produced "abnormal" lung radiographs. See February 1972 VA Report of Medical Examination for Disability Evaluation. Accordingly, given the evidence indicating that the Veteran had lung abnormalities immediately following his in-service exposure to asbestos, and in light of his VA treatment records reflecting a diagnosis of asbestosis manifested by lung pathologies including pleural effusion and pleural scarring, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); See also Gilbert, 1 Vet. App. at 55. Accordingly, the Veteran's claim of service connection for asbestosis is granted. ORDER Service connection for asbestosis is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs