Citation Nr: 21014273 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-52 929 DATE: March 11, 2021 ORDER Service connection for a respiratory condition, variously diagnosed as asbestosis and asbestos pleural disease (claimed as pleural scarring, plaques, with nodule, right lung), is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s respiratory condition, variously diagnosed as asbestosis and asbestos pleural disease, is related to in-service exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory condition, variously diagnosed as asbestosis and asbestos pleural disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a August 2015 rating decision. A Board hearing was held in May 2020. A transcript is of record. In June 2015, the Veteran claimed service connection for pleural scarring of the right lung and nodule in the right lung, both as due to exposure to asbestos. When a claim is made, the veteran is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, in this case, the Board has recharacterized the Veteran’s claim to be as one for service connection for a respiratory condition. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran seeks service connection for his respiratory condition, contending that it is directly related to in-service exposure to asbestos when he served as a machinist’s mate in the U.S. Navy. The Board concludes that the Veteran has a current disability of asbestos pleural disease that is directly related to in-service exposure to asbestos. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In November 2015, the Veteran underwent a chest CT scan without contrast for follow up to asbestos pleural disease on prior chest X-rays, with two small right upper lobe nodular opacities, “also likely representing pleural plaques.” Widespread asbestos (pleural) plaques were present, “corresponding to nodular and plaque-like opacities on recent chest radiographs.” A March 2017 VA examiner found the Veteran to have asbestosis. See C&P Exam signed and docketed 5/25/2017. As the Veteran has been found to have the current disability of asbestos pleural disease and asbestosis, the first Shedden element is met. The Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was machinist mate while serving in the U.S. Navy. His military personnel records show that he was transferred to the U.S.S. Fort Snelling (LSD-30) for duty on 13 May 1966, and transferred off the ship after 43 months on 19 December 1969. The Board takes notice that the Department of Defense has found that the probability of exposure to asbestos while serving as a machinist mate is “probable.” See September 2017 Statement of the Case. The Veteran’s service treatment records are silent for any symptoms, complaints, diagnosis, or treatment of a respiratory condition, and the Veteran does not contend otherwise. The December 1969 report of medical examination for separation noted that a July 1969 chest X-ray was negative. The Veteran has stated that his duty station as a machinist mate was in the engine room, where he removed the asbestos lagging when he worked on repairing steam lines. He explained that the joints would leak continuously or blow out, requiring the gaskets being replaced and rewrapping of the lines with asbestos. He explained that the gaskets also contained asbestos. He stated that the transfer pumps also required work frequently, and the packing used around them also contained asbestos. He stated that the air in the engine room generally was constantly filled with small fibrous debris that he believed may have included asbestos. He stated that they rarely had access to respirators. See June 2015 Statement in Support of Claim; August 2015 Notice of Disagreement; February 2017 DRO Conference Report; October 2017 VA Form 9; May 2020 Hearing Transcript. Given the above, the Board finds that the Veteran was exposed asbestos in service. That being the case, the Board finds that the second Shedden element is met. The Veteran has stated that he has never had any exposure to asbestos post-service. He stated that the protective gear worn during his post-service employment did not contain asbestos. He has explained that after service he worked at a saw mill, dragging logs and cutting them, for approximately 3 years; as a transfer operator where he transferred liquid chemicals from a supply building to railroad cars for seven to eight years; as a heavy equipment operator, running a backhoe followed by working as a foreman on outdoor job sites for laying utility lines. The Veteran has stated that he has never worked in building construction or demolition or in the automotive industry. He explained that he had a CDL (commercial driver’s license) because the dump truck he drove was used to move the backhoe between job sites. He stated that he never did any mechanical work on the trucks. In August 2015, a VA examiner provided a medical opinion based upon an ACE (Acceptable Clinical Evidence) process review of the claims file and concluded that an opinion could not be stated without resorting to mere speculation as to whether the Veteran’s respiratory condition was related to service. After noting the Veteran’s statements concerning his in-service and post-service work, it was stated that “[a]lthough he denies any known asbestos exposure after service, per the medical literature, his 35 years of working in construction is also a significant risk factor for unknown asbestos exposure.” After an in-person examination, a March 2017 VA examiner opined that it was less likely than not that the Veteran’s respiratory condition was related to service. It was explained that a chest X-ray at the time of separation from service was normal and that the Veteran had worked “30 years in the construction/trucking industry.” The examiner opined that “the likelihood of asbestosis exposure lies heavily on the 30 years of work in the construction and automotive industries versus the limited exposure in the Navy (minus boot camp training/technical school training/etc., prior to being assigned to an actual job in the Navy which would cut time of alleged exposure to less than a year).” It was explained that it takes many years of continued exposure to high levels of asbestos, such as in an industrial environment such as construction, shipbuilding, railroads, and automotive industries. As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). Although the VA medical opinions are informative, the Board finds them problematic for several reasons. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA provides an examination, it must be adequate). First, both VA examiners made assumptions about the nature of the Veteran’s post-service work that are not supported by the lay evidence of record. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence). The August 2015 VA examiner did not identify any particular aspect of the Veteran’s construction work that raised an inference that he was exposed to asbestos during employment. Without a basis, the March 2017 VA examiner referenced work in the automotive industry. Second, the March 2017 VA examiner arbitrarily determined that the Veteran served shipboard for “less than a year.” The Veteran’s military personnel records show unequivocally that the Veteran served shipboard for 43 months. Third, after having pointed out that the Veteran’s July 1969 chest X-ray had been normal to support the negative nexus opinion, the March 2017 examiner stated that it takes many years for asbestos-related respiratory conditions to develop. Consequently, these negative nexus opinions are not dispositive as to whether the Veteran’s respiratory condition was related to in-service exposure to asbestos. Nevertheless, the March 2017 VA medical opinion is probative in that it explains that the literature makes it known that asbestos-related lung disease is associated with industrial environments such as shipbuilding and railroads. Based upon the Veteran’s detailed description of his daily activities performing his assigned MOS for 43 months while serving shipboard, the Board concludes that the Veteran’s service was analogous to the continued exposure to high levels of asbestos exposure seen in shipbuilding. The Board also notes that the evidence establishes that the Veteran also had seven to eight years of post-service employment working near railroad cars thereby also potentially being exposed to asbestos. If the Veteran had both in-service and post-service exposure to asbestos, the question then becomes whether it is as likely as not that one or the other of the exposures caused the Veteran’s current disability. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s asbestos pleural disease and asbestosis was caused by his known in-service exposure to asbestos or to an unknown post-service exposure to asbestos. Consequently, the third Shedden element is met and, accordingly, service connection for a respiratory condition, variously diagnosed as asbestosis and asbestos pleural disease is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.