Citation Nr: 1751697 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-26 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a respiratory disability, claimed as asbestosis. REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1976 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California. In September 2017, the Veteran participated in the Board's Pre-Hearing Conference (PHC) program, at which time he requested that his case be advanced on the docket due to financial hardship. 38 U.S.C. § 7107 (2012); 38 C.F.R. § 20.900(c) (2017). The Board grants the request. Regarding his appeal of the service connection claim for obstructive sleep apnea, service connection for sleep apnea was granted in a November 2016 rating decision. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Similarly, regarding the appeal for service connection for depressive disorder, the Board notes that a December 2015 rating decision granted service connection for posttraumatic stress disorder (PTSD). A subsequent November 2016 rating decision granted depressive disorder as noted by the DRO decision which indicated that the evaluation of PTSD, with depressive disorder and alcohol dependence, was increased to 70 percent. It further assigned an earlier effective date to the date of the claim for depressive disorder which was received in October 2012. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). To the extent to which the Veteran disagreed with the evaluation of the PTSD with depressive disorder and alcohol dependence, a Statement of the Case was issued in November 2016. The Veteran did not perfect his appeal by submitting a substantive appeal. Accordingly, the Board does not have jurisdiction of that claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). FINDING OF FACT The Veteran has a current diagnosis of asbestosis resulting from in-service exposure to asbestos. CONCLUSION OF LAW The criteria for the award of service connection for asbestosis are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2107). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a respiratory disability, claimed as asbestosis. He asserts this disability results from exposure to asbestos while serving as a vehicle mechanic in service. Specifically, the Veteran has stated he regularly worked on vehicle brake systems during service, and was exposed to asbestos dust from brake pads and brake linings. 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. §§ 1110, 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). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9, and Part IV.ii.1.H.29.a, incorporates earlier agency guidance, which the Court of Appeals for Veterans' Claims has held the Board must discuss in assessing a claim to service connection for asbestos-related disease. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Adjudication Procedure Manual indicates that inhalation of asbestos fibers 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). Even brief or indirect exposure to asbestos can cause disease. Per the Manual, VA must determine whether military records demonstrate evidence of asbestos exposure in service; 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. In the present case, the Veteran asserts this disability results from exposure to asbestos while serving as a vehicle mechanic in service. His DD 214 confirms his military occupational specialty as a track vehicle specialist. Significantly, the M21-1 lists servicing of friction products, such as brake linings, as an occupation that involves exposure to asbestos. The Veteran has been diagnosed with asbestosis and asbestos-related pleural disease. According to an October 2012 statement from P.J., M.D., Dr. J. examined the Veteran in July 2012. Based on his personal examination of the Veteran and clinical testing, to include chest X-rays, asbestosis was confirmed in the Veteran's lungs. Dr. J. further opined that the Veteran's asbestosis was the result of occupational exposure, to include during service. Also received in support of the Veteran's claim was the June 2015 statement of L.M.G., M.D., a private physician and Board-certified pulmonologist. Dr. G. reviewed the claims file and noted the Veteran's occupational specialty as a vehicle mechanic during service. Further, Dr. G. noted the X-ray and other clinical findings supporting a current diagnosis of asbestosis. Regarding the etiology of this disability, Dr. G. opined that asbestosis was likely the result of the Veteran's exposure to vehicle brake systems and related asbestos particles during service. Upon review of the entire record, the Board acknowledges that negative medical opinion evidence is also of record. The Board also acknowledges that the Veteran may have had post-service exposure to asbestos. Nevertheless, as with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. Therefore, the Board finds the evidence to be in relative equipoise, and the grant of service connection for asbestosis is therefore warranted. ORDER Service connection for asbestosis is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs