Citation Nr: 1808430 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-11 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for pleural plaques of the lungs, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from October 1961 to February 1966. His DD 214 shows that his military occupational specialty (MOS) was "electronics mechanic field" and that he had completed a basic surface sonar maintenance course. This matter comes before the Board of Veterans' Appeals (Board) from a June 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT The Veteran's pleural plaques of the lungs are reasonably demonstrated to be due to inservice asbestos exposure. CONCLUSION OF LAW The criteria for service connection for pleural plaques of the lungs are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The Veteran's August 1961 examination for enlistment in the Navy revealed no abnormality, and a chest X-ray was negative. In an adjunct medical history questionnaire he reported having or having had "whooping cough." The Veteran's February 1966 examination for separation from the Navy revealed no abnormality, and a chest X-ray was negative. In August 1972 the Veteran filed a claim for service connection for migraine headaches and loss of vision. A March 1973 rating decision granted service connection for migraine headaches with visual aura, which was assigned an initial 10 percent disability rating, effective August 1, 1972, but denied service connection for loss of vision. On VA examination in January 1978 for evaluating the Veteran's service-connected headaches, his lungs were clear to auscultation. Of record are radiology reports from 2010 to 2013. Chest X-rays in January 2010 reveal that historically the Veteran had no complaints. X-rays revealed not evidence of acute infiltrates or effusions but his lungs were mildly overinflated. There was a discrete amorphous calcification in each hemithorax which appeared to represent calcified pleural plaques "seen en face." The impression was mildly overinflated lungs with no acute infiltrates or effusions. The apparent discrete calcified pleural plaques in each lung were of undetermined etiology. A CT scan in February 2012 revealed that the Veteran's lung bases appeared to be free from active disease. It was noted that there were calcified pleural plaques which was "a finding which can be seen with exposure to asbestos." An April 2013 CT scan of the Veteran's chest was compared to a January 2010 chest X-ray. The pulmonary vascular structures showed no evidence of filling defects. There were no significant hilar or mediastinal masses or lymphadenopathy. His airway was in the midline and there were no filling defects. There were no suspicious pulmonary parenchymal masses. There were calcified nodular densities in the lung fields consistent with healed granulomatous disease changes. There were bilateral calcified pleural plaques. There was no pneumothorax or pleural effusions, and no acute infiltrates. The relevant impressions were bilateral calcified pleural plaques, "most likely on an exposure related basis," and calcified nodular densities in the lung fields consistent with healed granulomatous disease changes. In a typed statement accompanying the Veteran's December 2013 claim for service connection, VA Form 21-526EZ, he reported that during service in the Navy he had served on the USS Renshaw, DD499, and the USS Walke, DD723, both of which were destroyers known to contain asbestos for insulation. As a surface sonar technician he had been exposed to asbestos, without the use of facemasks, which had been used as a heat insulator in some of the sonar equipment. Following service he practiced law and was never exposed to asbestos. Private radiology studies now revealed that he had bilateral pleural plaques, nodular densities in his lungs, and abnormal thickening of the walls of the cardia of his stomach. Two radiologists had identified the pleural plaques as being due to asbestos exposure. In the last few years he had noticed a shortening of breath, while exercising and at rest. Of record is a May 2002 VA Memorandum relating to "Asbestos MOS List" which reflects that an MOS of sonar technician, including surface sonar technician, made potential exposure to asbestos "highly probable." On VA respiratory examination in April 2014 the Veteran's VA electronic records were reviewed, including past private medical records, and the Veteran brought with him a recent CT scan. It was reported that the Veteran had been diagnosed as having bilateral pleural plaques but had not been diagnosed with chronic obstructive pulmonary disease (COPD) or any lung cancer. The results of past radiological studies were noted, and pulmonary function testing was performed. It was noted that the Veteran had a remote history of tobacco abuse, having smoked from age 16 until 44 "1.5ppd." He now exercised and walked on a routine basis without dyspnea. His lungs were negative for wheezes or rales. The examiner opined that it was at least as likely as not that the Veteran's bilateral pleural plaques due to his conceded asbestos exposure in the Navy. Because the opinion did not provide a rationale, an addendum opinion was requested. The May 2014 addendum opinion by a VA physician concluded that the Veteran's pleural plaques bilateral, claimed as lung damage due to asbestos exposure, were less likely than not (less than 50 percent) caused by, or as a result of, the asbestos exposure while in military service, serving as a sonar technician (surface). The rationale was that the information in the Veteran's VA electronic records showed his description of his naval duties as a sonar technician and it did demonstrate that the Veteran was exposed to asbestos during the service. The opinion further provided that while asbestos exposure had been conceded, a more important point is the duration and the intensity of the exposure. In the medical literature (the Helsinki criteria), an occupational history, the only means whereby latency can be evaluated, of 1 year of heavy exposure to asbestos (e.g., manufacture of asbestos products, asbestos spraying, insulation work with asbestos materials, demolition of old buildings) or 5-10 years of moderate exposure(e.g., construction or shipbuilding) would be considered significant. It was commented that in this Veteran, he did not meet either criterion for having a significant exposure to asbestos in view of what he actually did and that his term of service was little more than four years. Thus, it would be unlikely that he would develop complications from asbestos exposure while performing his military duties. Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). A showing of an in-service chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic. A showing of continuity of symptoms is not required when disease identity is established but is required when in-service chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Certain chronic conditions will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). However, pleural plaques are not listed as such a chronic condition under 38 C.F.R. § 3.309(a) (2017). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (demonstrating a continuity of symptomatology since service or within the presumptive period after service only applies to the chronic diseases listed under 38 C.F.R. § 3.309(a)). As for the Veteran's respiratory claim, a medical nexus of a relationship between the condition and service is required. Walker v. Shinseki, supra. In this regard, service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Board must find whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C. § 5107 (2012); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis The Veterans Claims Assistance Act of 2000 (VCAA) amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. VA is to notify a claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide. 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696. Also, the Board notes that in the Veteran's VA Form 9 he stated that he did not desire a hearing but that in subsequent pleadings his service representative indicated that the Veteran had requested a hearing. Here, the Veteran was not provided the required VCAA notice and was not provided the opportunity to testify at a hearing. Nevertheless, in light of the favorable outcome of the appellate adjudication of his claim, such errors are harmless and nonprejudicial. Turning to the merits of the Veteran's claim, as to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). M21-1 does not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); see also Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Thus, in claims of service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000), it was held as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. Here it is undisputed that the Veteran had a high probability of exposure to asbestos. It is also undisputed that he now has some over-inflation of the lungs as well as pleural plaques. While the over-inflation of his lungs may be due to his past long history of smoking, and it is not contended or shown that such over-inflation is due to his past asbestos exposure, there is no evidence that his current pleural plaques are due to his past long history of smoking. With respect to whether the Veteran's current pleural plaques are due to his past exposure to asbestos, there are two VA opinions, in April and May 2016, which are in conflict. The April 2016 opinion concluded that his pleural plaques were likely due to his past asbestos exposure, while the second, in May 2016, concluded that his pleural plaques were not likely due to his past asbestos exposure because his past asbestos exposure was not of sufficient duration and his military duties likely would not have exposed him to significant amounts of asbestos. It is noteworthy that the second and negative opinion, in May 2016, did not otherwise suggest an etiology as to the cause of the Veteran's current pleural plaques, including not suggesting that the Veteran's past history of smoking was the cause of his pleural plaques. In this case, there is no evidence of respiratory symptoms or disability until many years after service. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that generally the absence of evidence of contemporaneous complaints or treatment for relevant symptoms and disability does not constitute substantive negative evidence to be weighed against a claim. VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded in that record. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). On the other hand, it must also be noted that the guidance cited above, in DVB Circular 21-88-8 and M21-1, reflects that certain diseases have a latency period such that they may not be first detected or cause impairment until many years after any asbestos exposure. Consequently, the fact that the Veteran did not develop respiratory signs, symptoms, and disability until many years after service is not a factor which weighs against his claim. In this regard, the February 2012 CT scan found that the Veteran's pleural plaques were consistent with exposure to asbestos. Similarly, the April 2003 chest CT scan found that his pleural plaques were "most likely on an exposure related basis." While the 2003 chest CT scan did not specify that the "exposure" was necessarily a past history of exposure to asbestos, it is reasonable to conclude that asbestos was the type of exposure to which this clinical record was referring. When these private radiology studies are considered in the weighing of the two, contradictory, VA medical opinions, and taking into consideration the matter if the potential latency in developing respiratory disability years after asbestos exposure, the favorable and unfavorable evidence is in approximate balance. Under such circumstance, the claim must be allowed. See 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. ORDER Service connection for pleural plaques of the lungs is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs