Citation Nr: 18126875 Decision Date: 08/16/18 Archive Date: 08/15/18 DOCKET NO. 17-04 178 DATE: August 16, 2018 ORDER Entitlement to service connection for lung disorder associated with asbestos exposure is denied. FINDING OF FACT No currently diagnosed lung disorder was first manifested during active duty or is shown to be etiologically related to any injury or event in service. CONCLUSION OF LAW The criteria for service connection for lung disorder associated with asbestos exposure are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army on active duty from October 1952 to September 1954. The Veteran testified before the undersigned Veterans Law Judge during an April 2018 videoconference hearing; a transcript is of record. Entitlement to service connection for lung condition associated with asbestos exposure The Veteran maintains that he is entitled to service connection for his lung condition because he was exposed to asbestos in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory guidance about asbestos-related claims, nor has the Secretary of VA promulgated any regulations regarding such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, 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 IV, Subpart ii, Chapter 2, Section C, 9 (b). 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 IV, Subpart ii, Chapter 2, Section C, 9 (f). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Here, the medical evidence demonstrates that the Veteran has calcified pleural plaque due to asbestos exposure without asbestosis as of 2017. See April 2017 VA examination. The issue is thus whether it is at least as likely as not that the Veteran’s lung condition was caused or related to his active service. For the following reasons, the Board finds that the weight of the evidence demonstrates that the Veteran’s lung condition is not related to his active service. In his November 2013 asbestos questionnaire, the Veteran reports that he had never smoked. And he submitted a statement along with the asbestos questionnaire that provides detailed description of his work history and tasks before, during, and after service. According to the Veteran’s November 2013 statement, the Veteran worked as a laborer at Mare Island Naval Shipyard between 1951 and 1952 before his military active service, where he cleaned and scaled the deck of ships and worked in boiler rooms in proximity to boilermakers as they opened boilers to remove tubes and asbestos containing refractory material. See November 2013 statement. The Veteran states that he used a chipping gun and hammer to remove asbestos containing insulation from pipes and bulkheads and that he worked in proximity to insulators as they cut and installed asbestos containing gaskets. Id. DD 214 confirms that the Veteran served in the Army between October 1952 to September 1954, to include service overseas for one year and three months. In the November 2013 statement, the Veteran states that he slept beneath asbestos insulated pipes and recalls asbestos containing dust falling from the pipes onto his blanket while he was on a ship from California to Korea for approximately two weeks and also on a ship from Korea to Washington for approximately 9 days. Otherwise, while he stationed in Fort Ord for his training and also while he served in Korea as infantryman, he was not aware of asbestos exposure. After discharge from active service, the Veteran worked at Mare Island Naval Shipyard as a laborer between October 1954 and August 1956. He worked during overhauls and stripped asbestos containing insulation from pipes and carried asbestos containing refractory debris from boiler rooms. See November 2017 Statement. Between August 1956 and 1987, the Veteran worked at Alameda Naval Air Station. He worked on maintenance of aircrafts. In particular, he removed degraded airplane brakes and installed brakes, which contained asbestos. It appears that various tools and materials such as clamps and adhesives he used for his work contained asbestos. Id. Additionally, the Veteran reports that he performed automotive repair work from late 1950s through 1990s. Id. The Veteran reported his work history and tasks before, during, and after service, as summarized above, during his April 2017 VA examination and April 2018 Board hearing. Based on the evidence summarized above, the Board finds that the Veteran did not have an occupation that has higher incidents of asbestos exposure as in M21-1 while he served in the Army, but he had such occupations listed in M21-1 before and after service while he worked at a Navy shipyard and a Navy Air Station. Moreover, the April 2017 VA examiner opined that the Veteran’s current asbestos-related lung condition is caused by civilian exposure to asbestos because by the Veteran’s account, he was potentially exposed environmentally on the ship to possible asbestos for only 14 days, whereas he had 32 years of asbestos exposure as a civilian. The Veteran submitted a statement from his treating physician, where the physician stated his opinion that the pleural plaques are more likely than not a consequence of the Veteran’s military service, “in that this is where he received exposure to asbestos.” The physician continued that he based this opinion on the information given to him by the Veteran, as well as the radiographic findings on chest CT scans. See June 2018 Letter by Dr. G. No further rationale was provided and there was no discussion of the Veteran’s exposure in civilian occupations. The Board finds that the April 2017 examination report to be the more probative evidence of record than the June 2018 opinion. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the April 2017 examination report is based on more comprehensive information available through the Veteran’s claims file in addition to the interview, but the June 2018 opinion is based on the medical evidence and the Veteran’s history. Moreover, the Board finds that the April 2017 opinion is fully articulated with reasons, whereas the June 2018 opinion is conclusory with no evaluation of potential exposures before and after service. Based on the above, the Board finds that the preponderance of the evidence is against the claim. The claim for entitlement to service connection for lung condition must be denied. There is no reasonable doubt to be resolved. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel