Citation Nr: 9807468 Decision Date: 03/13/98 Archive Date: 03/25/98 DOCKET NO. 96-19 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for asbestosis secondary to exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant served on active duty from December 1950 to August 1954. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from an August 1995 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is entitled to service connection for asbestosis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 of record favors the granting of service connection for asbestosis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant’s appeal has been obtained by the agency of original jurisdiction. 2. The appellant was exposed to asbestos while in service. 3. The appellant was diagnosed with asbestosis in 1995. The diagnosis attributed the asbestosis to the appellant’s occupational exposure to asbestos. CONCLUSION OF LAW Asbestosis was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service medical records indicate that photofluorographic examinations of the appellant’s chest were conducted in December 1950, April 1952, and August 1954, all of which were negative. At the appellant’s discharge examination in August 1954, the appellant’s lungs and chest were normal. In a May 1995 statement, the appellant stated that since his discharge from service, he performed carpentry and factory maintenance work. He asserted that none of his jobs involved insulation trade or asbestos related trade. The appellant stated that, while in service, he served on the U.S.S. Mansfield (DD725) from February 1951 to August 1953 and on the U.S.S. Ammen (DD527) from August 1953 to August 1954. He explained that his job classification as a ship fitter required him to repair and maintain the ship, including fire rooms, engine rooms, all steam lines, and fire main systems. He added that he had to burn and weld metal, change out steam valves and water valves, and work with shipyard personnel when the ship was being overhauled. The appellant stated that although he no longer smoked, he had in the past. An October 19, 1993 letter from Kaye H. Kilburn, M.D., indicates that on October 10, 1993, the appellant was studied by the Workers’ Disease Detection Services in Claremont, California, for possible effects of asbestos exposure. An X- ray examination showed evidence of changes in the lung lining (pleura), which indicated pleural asbestosis. The appellant was diagnosed with chronic bronchitis by history. A June 30, 1995 letter from Brian G. Forrester, M.D., M.P.H., and attached clinical note indicate that he examined the appellant on June 22, 1995. The appellant reported that he had had shortness of breath on exertion for approximately one year. He also reported an early morning cough, which was productive of yellowish sputum and occasional (two to three times per week) intermittent paroxysms of cough. He stated that he had worked for forty-three years, from 1950 to 1993, as a ship fitter and carpenter. He stated that, while in service, he was a ship fitter. He frequently worked on boilers and steam pipes, tearing off and replacing asbestos insulation. He said that from 1955 to 1993, he worked as a carpenter. He built scaffolds for pipe fitters, machinists, and insulators, who were removed, handled, and applied a variety of asbestos products in his immediate vicinity. He stated also that from 1963 to 1965 he was employed as a maintenance repairman. He insulated boilers, worked on and welded pipes that were covered with asbestos insulation, and removed and replaced asbestos insulation on defective boilers in order to repair them. He never used any respiratory protective equipment. He also reported that he smoked one pack of cigarettes per day from approximately 1952 to 1982. An X-ray examination of his chest revealed small, irregular opacities in the lower two lung zones bilaterally, which were consistent with interstitial fibrosis, and pleural plaques in the convexities of the lungs bilaterally. Complete pulmonary function testing revealed a reduction in residual volume consistent with an early restrictive defect. Dr. Forrester diagnosed asbestosis and asbestos-related pleural disease. He noted that the appellant had a significant history of occupational exposure to asbestos with a potential latency period of approximately forty-five years. At an August 1995 VA examination (VAX), the appellant complained of a heavy morning cough productive of yellowish sputum and of shortness of breath, especially while walking up stairs or other inclines. The appellant was dyspneic at rest when talking, with an occasional short cough to clear his chest. He had a slight restriction to inspiration. His breath sounds were normal and symmetrical except in the posterior lung bases where dry basilar rales were present. The examiner reviewed June 1995 X-rays films, which revealed small, irregular opacities present in the lower two lung zones bilaterally, consistent with interstitial fibrosis, and pleural plaques in the convexities of the lungs bilaterally. The examiner reviewed June 1995 pulmonary function studies, which revealed a reduction in residual volume consistent with an early restrictive defect. The examiner determined that no additional studies were needed to evaluate extra-pulmonary manifestations. The examiner diagnosed asbestosis with asbestosis related pleural disease. The examiner determined that the disease was active. No statute specifically discusses asbestos and service connection for asbestos-related diseases, and the Secretary has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases which 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter M21-1). VA must analyze the appellant’s claim of entitlement to service connection for the cause of the veteran’s death based on asbestos exposure under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. (Emphasis added.) Some of the major occupations involving asbestos exposure include work in shipyards and insulation work. M21- 1, Part VI, 7.21(b)(1), p. 7-IV-3 (January 31, 1997). There is a prevalence of asbestos-related disease among shipyard and insulation workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). With asbestos-related claims, the Board must also determine whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran’s claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO’s compliance with the Circular’s claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO complied with these procedures. The appellant’s contentions regarding his exposure to asbestos during service are plausible. Furthermore, his service records indicate that he was a Fireman [FN] and that he served aboard the U.S.S. Mansfield. There is no evidence contradicting the appellant’s assertions of exposure to asbestos, and his assertions are consistent with his service occupation and duty. Based on this evidence, exposure to asbestos during service is established. See McGinty v. Brown, 4 Vet. App. 428 (1993) (held that the veteran’s testimony as to the cause of his disease was not competent evidence of causation because the determination of the cause of a disease is a medical matter; however, the veteran was competent to testify as to the facts of his asbestos exposure, i.e., wearing asbestos gloves while performing his duties as a “hot caseman” in the Navy). The appellant has submitted evidence that is sufficient to justify a belief that this claim is well grounded. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. 78. This finding is based on the medical evidence of record, which includes a diagnoses of asbestosis in June and August 1995, based on the appellant’s occupational exposure to asbestos with a potential latency period of forty-five years. It can be argued, as the RO did, that because the appellant’s exposure to asbestos in the course of his employment from 1954 to 1993 was more intense than the exposure during service, post service exposure caused the asbestosis. Such an argument is twice flawed. First, an asbestos related disease may result from very brief exposure (M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997)); and, second, a medical diagnosis requires, if not medical expertise, at least some medical support for the diagnosis. See Bernard v. Brown, 4 Vet.App. 384, 395 (1993) (Pursuant to 38 U.S.C.A. § 7104(d)(1), the Board is required to provide an adequate statement of the reasons or bases for its findings and conclusions. … When such findings and conclusions are medical in nature, the Board may not rely on its own unsustantiated medical conclusions, but “may consider only independent medical evidence to support [its] findings.”…) The “benefit of the doubt doctrine” requires a veteran only to demonstrate that there is an approximate balance of the positive and negative evidence in order to prevail; entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence or by a fair preponderance of the evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. When a veteran seeks benefits and the evidence is in relative equipoise, the law dictates that the veteran prevails. This “unique standard” of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Forces. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Under this evidentiary standard, the evidence supports the conclusion that the appellant’s asbestosis is secondary to exposure to asbestos while in service. ORDER Entitlement to service connection for asbestosis is granted. JACK W. BLASINGAME Member, Board of Veterans’ Appeals SEE FOLLOWING PAGE FOR NOTICE OF APPELLATE RIGHTS NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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 -