Citation Nr: 18154681 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-18 692A DATE: December 4, 2018 ORDER Entitlement to service connection for asbestosis is granted. FINDING OF FACT 1. The competent and probative evidence of record is at least in relative equipoise as to whether the Veteran was exposed to asbestos inservice. 2. The Veteran’s asbestosis is related to his exposure to asbestos in service. CONCLUSION OF LAW The criteria for entitlement to service connection for asbestosis have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from December 1952 to December 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, OH. The Veteran timely filed a Notice of Disagreement (NOD) and perfected the appeal in June 2015. This appeal was advanced on the Board’s docket in April 2017. 38 U.S.C. § 710.7(a)(2) (2012); 38 C.F.R. § 20.900(c) (2017). The Board remanded the appeal to comply with the Veteran’s, VA Form 9, request for a Board hearing. 38 C.F.R. § 20.704(a) (2017). However, in April 2018 the Veteran withdrew his Board hearing request; consequently, the appeal returned to the Board’s advanced docket for the present adjudication. The Veteran’s representative submitted an Informal Hearing Presentation (IHP) and draws the Board’s attention to the evidence of record and posits the lay and medical evidence of record support a finding of service connection for in-service asbestos exposure and points to the medical opinions proffered by the Veteran’s private physician, Dr. E. (See Informal Hearing Presentation, October 2018). 1. Entitlement to service connection for asbestosis The Veteran seeks entitlement to service connection for asbestosis. He maintains that his pulmonary asbestosis is a result of exposure to asbestos while serving aboard the U.S.S. Deuel. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Veteran has a current diagnosis of asbestosis. (See February 1987 Medical Report, noting a clinical evaluation of the Veteran showed bilateral pleural thickening and an abnormal chest x-ray). The Veteran’s DD Form 214 and service personnel records verify his service on the U.S.S. Deuel (APA-160) in 1953, 1954 and 1955, as well as his duty assignments as first as a seaman, subsequently reassigned as Boatswain. The Board notes that the U.S.S. Deuel was a Navy Haskell-class attack transport launched in 1944. A review of the Veteran’s service treatment records does not contain a complete record of the Veteran’s enlistment physical examination; however, the record contains evidence of a negative chest x-ray in May 1953 and a copy of a release from active duty exam dated December 1955 showing normal lungs, and notation that a chest x-ray revealed no abnormalities. The Veteran did not undergo a VA medical examination. Nonetheless, the Board finds that the medical evidence of record and lay evidence of record are adequate to evaluate and proceed with the adjudication of this claim without prejudice. Post-service, private medical reports from Dr. E. delineates the Veteran’s reported occupational history to date and asbestos exposure history. Particularly, Dr. E. remarked that while in the Navy, the Veteran cleaned-up asbestos pipe covering and debris which had been removed. As to his civilian occupational history, Dr. E. details that the Veteran worked as an assembly worker with unknown exposure from 1956 to 1958; worked as a clerk packaging and shipping orders out at Hill-Chase Steel, with unknown exposure from 1960-1969; worked as a surveyor at Bethlehem Steel shipyard from 1969-1981, noting the Veteran was around persons who were installing asbestos insulation and where asbestos insulation was stored overhead in the maintenance shop and noticed constant while flaky material in the air in the shop; worked multiple part-time construction jobs without exposure doing metal stud work, sheetrock and ceiling work for new construction wearing a respirator from 1981 to 1984; and thereafter worked as a bartender. (See private medical treatments, February 1987; March 2006; July 2007; June 2008; and October 2009). A March 2006 private medical treatment record denotes that the Veteran is followed by the Fort Howard CBOC and has a history of asbestosis. In a July 2007 record, Dr. E. denoted the asbestosis progression. Specifically, he stated that the Veteran’s chest x-ray showed bilateral interstitial fibrosis and bilateral pleural plaques, both of which were caused by the Veteran’s asbestos exposure to a reasonable degree of medical certainty. Expounding that the findings, when compared to the previous B-readings going back to 1987, showed a substantial progression of the interstitial fibrosis and pleural fibrosis. A June 2008 treatment record notes the Veteran’s asbestosis as asymptomatic and under no current medical therapy. Records from October 2009 continue to note the asbestosis diagnosis. In December 2009, Dr. E. opined that the Veteran’s exposure to asbestos began during his Navy service, which contributed to his condition as it was found on that date. Then, in October 2010, in a second opinion he indicated that the Veteran has asbestosis which was caused and contributed to by his asbestos exposure while in the U.S. Navy. Dr. E. went on to opine that his assessment of the Veteran’s disability was based on his knowledge of past examinations, and pulmonary function testing, as well as his own recent examination and function testing. The basis for his opinion is a significant reduction in the single breath diffusion capacity from 1986 through December 2009, and is based on comparison of present pulmonary function with prior pulmonary function of the patient, as opposed to comparing him with a population norm. Records of a medical exam in October 2012 indicates that the Veteran was exposed to asbestos in the Navy, on insulated pipe, where he worked as surveyor on board ships with exposure to asbestos. Dr. E remarked that the Veteran first worked with asbestos at age 17, establishing an estimated total number of asbestos exposure as of the date of that examination to 25 years plus. The Veteran claims that he cleaned asbestos all of the time he was on the USS Deuel, and claims that he was very much exposed to it. He clarifies that he was employed as a surveyor at Bethlehem Steel (1969-1981) and points that 90 percent of his work was performed outside; he also points that when he worked in construction, it was all new work, which contained no asbestos. (See Notice of Disagreement, January 2013). In September 2010, the Veteran submitted a Statement in Support of Claim, averring that during his service on the U.S.S. Deuel, he was in the deck force, where his job was to help keep the ship clean, including to clean the troop compartments, where the bunks and decks were covered with asbestos which had fallen of the pipes that ran through the ship. He claims he did not have a mask to wear, and avers that asbestos was present in his own sleeping compartment. The Veteran is competent to report these experiences as he has personal knowledge of the situations. The Board finds that the Veteran’s lay statements are competent and credible regarding his asbestos exposure in-service, since nothing directly contradicts his assertions and he reported the claimed disability many years prior to submitting his claim for VA benefits. 38 C.F.R. § 3.303(a) (2017). Furthermore, the Veteran’s claims regarding his duties and exposure on the Deuel are corroborated by a Buddy Statement from a fellow Boatswain mate. Specifically, the Buddy said that after troops disembarked the ship, one of their jobs was to clean the troops compartment. Stating that while onboard, the transported troops would disturb the asbestos on the pipes and other stuff, which they breathed in as they performed their cleaning duties. (See September 2011, Statement in Support of Claim). The Board further notes that the Veteran’s military occupational specialty (MOS) duties assigned to Seaman and Boatswain suggests asbestos exposure during service. Moreover, based on the evidence of record, including the history of the USS Deuel and the credible and competent lay testimony, affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s report of exposure to asbestos is consistent with the place, type and circumstances of his active service. 38 U.S.C. § 1154(a) (2012). As such, the Veteran meets the in-service incurrence criterion for service connection. Therefore, the claim turns on whether there is a nexus between the Veteran’s service and his current disability. Regarding the question of nexus, Dr. E. stated in December 2009, and October 2010 letter that based his assessment of the Veteran since 1986, pulmonary functioning testing, and in consideration of the Veteran’s occupational history, it was his opinion to a reasonable degree of medical certainty that the Veteran’s asbestos exposure while in the Navy, caused and contributed to his asbestosis. After considering Dr. E.’s opinion from December 2009 and October 2010, and in the context of the record, the Board finds that the examiner’s conclusion provides probative value as it addresses the relevant medical issue in this case and was based on the doctor’s history of caring for the patient, analysis of the Veteran’s pertinent medical history, and current medical understanding. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner’s journey from facts to a conclusion,”); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole in the context of the evidence of record). Notably, there is no negative opinion to weigh against Dr. E.’s conclusion. Moreover, the Veteran’s credible lay testimony provides greater clarity as to the possible level of post-service asbestos exposure, which appears to be minimal in nature, when compared to the daily exposure during his Navy service. (Continued on the next page)   In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that is at least as likely as not that the Veteran’s pulmonary asbestosis stems from his exposure to asbestos during service rather than to the potential asbestos exposure after service. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board finds that the criteria for service connection for pulmonary asbestosis have been met and service connection is granted. 38 C.F.R. § 3.303(a) (2017). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel