Decision Date: 10/30/95 Archive Date: 01/17/96 DOCKET NO. 93-21 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lung condition secondary to exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from August 1951 to July 1955, and from February 1958 to October 1973. This matter came before the Board of Veterans’ Appeals (hereinafter the Board) on appeal from a May 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio, that denied the veteran’s claim for entitlement to service connection for a lung condition secondary to exposure to asbestos. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he was exposed to asbestos in service, and currently has a lung disability that has been diagnosed by private physicians as secondary to asbestos exposure. He therefore requests that the Board reverse the decision of the RO which denied his claim for service connection for this condition. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the veteran’s claim for a lung condition secondary to exposure to asbestos. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained by the agency of original jurisdiction. 2. Pleural thickening may be reasonably related to exposure to asbestos in service. CONCLUSION OF LAW The veteran's lung condition secondary to exposure to asbestos was incurred in active service. 38 U.S.C.A. § 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION When a claim for service connection comes to the Board, we must first determine whether the claim is well-grounded. A well-grounded claim requires more than mere allegations; it must be plausible and with merit. 38 U.S.C.A. § 5107 (West 1991); Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this regard, the veteran served in the U.S. Navy and served aboard ships in which asbestos or asbestos-related fibers were used. Since service, private medical records have suggested that the veteran’s lung condition is related to asbestos exposure. It is plausible that his lung condition is related to exposure to asbestos while in the U.S. Navy. Therefore, we find that the veteran has presented a well-grounded claim. Additionally, the facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. Under 38 U.S.C.A. § 1110, 1131 (West 1991), compensation will be provided if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service-connection may be granted for any disease 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) (1994). The veteran served in the U.S. Air Force and the U.S. Navy for nearly 20 years, and according to his discharge papers, he was an engine mechanic. With regard to the U.S. Navy, this occupation was below deck where he could have experienced daily contact with asbestos. The Board has considered the statements by the veteran concerning his exposure to asbestos, and finds that he did suffer from such exposure while in the Navy. Asbestos-related lung disease typically is first clinically manifested decades after the exposure. Characteristic manifestations of asbestosis are restrictive lung disease and interstitial pulmonary fibrosis, which may be evidenced by dyspnea, cough, and basal rales. The most common manifestation of exposure to asbestos is the presence of pleural plaques and thickening. See Mossman and Gee, Asbestos-Related Diseases, 320 New Eng. J. of Med., at 1725-6 (1989). Following the veteran's application for VA benefits secondary to his exposure to asbestos, he underwent a VA examination in January and April 1991. X-ray films were read as within normal limits. A VA examiner, who conducted a VA Compensation and Pension conducted in April 1991, conceded that the veteran had a “positive history of asbestos exposure”. The examiner further stated that the veteran had some pleural thickening. Despite the findings of pleural thickening, service connection for a lung disability secondary to exposure to asbestos was not granted. The RO, in its Rating Decision of May 17, 1991, and the RO Hearing Officer, in his decision of April 12, 1993, both acknowledged the veteran's exposure to asbestos but denied service connection because there was not a diagnosis of a residual disease process. That is, because a specific disability was not present, service connection was not granted. Pleural plaques have been characterized by either thickening or calcification along the parietal pleura, particularly along the lower lung fields, the diaphragm, and the cardiac border. Speizer F E., Environmental lung disease in Harrison's Principles of Internal Medicine, 12th ed. 1991, at 1058. The VA Adjudication Manual has explicitly made provisions for rating pleural plaques/thickening and considers that abnormality alone a disability for compensation purposes (see below). 7.68 ASBESTOS-RELATED DISEASES a. General (1) Asbestos fiber masses have a tendency 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 tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions 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. (2) Asbestos, a fibrous form of silicate mineral of varied chemical composition and physical configuration, derives from serpentine and amphibole ore bodies. The asbestos fibers are obtained from these minerals after the rocks have been crushed. Africa has contributed large quantities of crocidolite and amosite. The main asbestos product now used in the United States is chrysotile which consists of varied mixtures of chrysotile, tremolite, actinolite, and anthophyllite fibers. The biological actions of these fibers differ in some respects. Chrysotile products have their initial effects on the small airways of the lung, cause asbestosis more slowly, but result in lung cancer more often. The African fibers have more initial effects on the small blood vessels of the lung, the alveolar walls and the pleura, and result in more mesothelioma. True chrysotile fibers are hollow and extremely thin. All the other varieties of asbestos fibers are solid. (3) Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Mesotheliomas are not associated with cigarette smoking. Lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. About 50 percent of persons with asbestosis eventually develop lung cancer, about 17 percent develop mesothelioma, and about 10 percent develop gastrointestinal and urogenital cancers. All persons with significant asbestosis develop cor pulmonale and those who do not die from cancer often die from heart failure secondary to cor pulmonale. b. Occupational Exposure (1) Some of the major occupations involving exposure to asbestos include 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, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. (2) High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). c. Diagnosis. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. d. Guidelines (1) When considering VA compensation claims, rating boards must determine whether or not military records demonstrate evidence of asbestos exposure in service. The boards must also assure that development is accomplished to determine whether or not there is preservice and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. If assistance is needed, contact the Compensation and Pension Service Regulations Staff (211B). (2) Rate asbestosis, pleural effusions and fibrosis, and pleural plaques analogous to silicosis. Rate cancers under the diagnostic code for the appropriate body system. Rate mesothelioma of pleura analogous to diagnostic code 6819 and mesothelioma of peritoneum analogous to diagnostic code 7343. From the above, we see that the VA has explicitly made provision for rating pleural plaques and now considers that abnormality alone a disability for compensation purposes. Thus, a diagnosis of asbestosis or of an asbestosis-related disease is not necessary for a grant of service connection. Although he also has a co-existing chronic obstructive pulmonary disease, a VA doctor has confirmed that an element of asbestos-related lung disease is present. In determining whether service connection is warranted, the VA must determine 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 service connection must be denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). We find that the evidence supports the veteran's claim, and thus entitlement to service connection for a lung disability secondary to exposure to asbestos is warranted. ORDER Service connection for a lung condition secondary to exposure to asbestos is granted. Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. - 2 -