Citation Nr: 20022547 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-55 921 DATE: April 1, 2020 ORDER Entitlement to service connection for pleural plaques due to asbestos exposure is granted. FINDING OF FACT The evidence is at least evenly balanced as whether the Veteran’ was exposed to asbestos during active military service and whether the Veteran’s currently diagnosed pleural plaques are related to such exposure in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for pleural plaques due to asbestos exposure are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to September 1978. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision that denied service connection for a respiratory condition to include lungs. 1. Entitlement to service connection for pleural plaques due to asbestos exposure The Veteran contends that he has a current respiratory disorder that is caused by asbestos exposure during active military service. In this regard, he asserts that he was exposed to asbestos while on board the USS Charleston and USS Raleigh, as well as, while he was stationed at Camp Pendleton and Camp Lejeune. The Board concludes that the Veteran has a current diagnosis of a respiratory disorder, pleural plaques, that is at least as likely as not related to in-service exposure to asbestos. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, VA treatment record dated in December 2015 reveals that the Veteran is diagnosed with asbestos-induced pleural plaques. VA treatment records dated in November 2017 documents that a CT scan of the Veteran’s thorax revealed stable bilateral calcified pleural plaques compatible with asbestos related pleural disease. Furthermore, a September 2019 CT scan of the chest reveals calcified pleural plaques suggestive of prior asbestos exposure. Thus, the evidence shows that the Veteran’s current diagnosis of pleural plaques is at least as likely as not caused by exposure to asbestos. Regarding the issue of whether there is evidence of an in-service disease or injury, the service treatment records do not reveal any complaints of respiratory symptoms or a diagnosis of a chronic respiratory or lung disorder to include calcified pleural plaques. The Veteran’s separation examination dated in August 1978 documents that his lungs and chest were normal. No abnormality was seen on his chest x-ray. With respect to the Veteran’s claim that his respiratory disorder is related to asbestos exposure in service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations concerning such claims. However, VA has 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 information and instructions from the DVB Circular have been included in the Department of Veterans Affairs, Veteran’s Benefits Administration, Adjudication Procedure Manual (Manual), M21-1 (M21- 1), Part VI, 7.21. The United States Court of Appeals for Veterans Claims (the Court) has held that VA must analyze an appellant’s claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Asbestos fiber masses tend to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, Subpart ii, Chapter 2, Section C.2.b. The Manual also notes that common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. M21-1, Part VI, Subpart ii, Chapter 2, Section C.2.a. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21-1, Part VI, Subpart ii, Chapter 2, Section C.2.d. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. M21-1, Part VI, Subpart ii, Chapter 2, Section C.2.e. Many people with asbestos-related diseases have only recently come to medical attention because of the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, Subpart ii, Chapter 2, Section C.2.f. Also, of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See M21-1, art VI, Subpart ii, Chapter 2, Section C.2.c. The Court has held that provisions in the Manual, do not create a presumption of exposure to asbestos. See Dyment v. West, 13 Vet. App. 141, 145 (1999). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). Turning to the evidence of record, the Veteran’s service personnel records show that his military occupational specialty (MOS) during service was field artillery battery man. The Veteran’s MOS indicates that it is not likely he would have come in contact with asbestos as part of duties as a field artillery battery man. Nonetheless, the Veteran asserts that he was exposed to asbestos during active duty service while aboard the USS Raleigh and USS Charleston. The Veteran contends that he was exposed to materials aboard the ships containing asbestos. He submitted pictures from when he was in USS Raleigh noting that the pictures shoe asbestos insulation all of the ship. He noted that a lot of the insulation was busted open throughout the ship especially in the aisle ways and living quarters. The Veteran’s service personnel record confirms that the Veteran was aboard the USS Raleigh from January 6, 1976 to January 22, 1976, February 26, 1976 to May 1, 1976, May 15, 1976 to July 14, 1976 and he was aboard the USS Charleston from January 22, 197 to February 26, 1976 and from May 1, 1976 to May 15, 1976. Asbestos on ships were located in insulation, piping, deck flooring, ceiling tiles. The Veteran also submitted an article that provides a list of amphibious warships that were known to have been constructed with asbestos containing products. This list included the USS Charleston and USS Raleigh. Accordingly, the Board finds that the Veteran’s statements are competent and credible and are consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, his statements combined with the evidence in his service personnel record provide probative evidence in support of his claim of asbestos exposure in the U.S. Marine Corp, notwithstanding that his MOS in service, alone, indicates a low probability of asbestos exposure. Based on the above evidence, the Veteran was most likely exposed to asbestos in service and the Veteran has a lung condition that has been attributed to asbestos exposure by several medical professionals. Resolving any reasonable doubt in favor of the Veteran, the Veteran’s asbestos related pleural plaques is at least in part related to active military service. Thus, the Veteran’s claim is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.