Citation Nr: 9828426 Decision Date: 09/23/98 Archive Date: 10/01/98 DOCKET NO. 94-15 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for asbestos-related lung disease, to include asbestosis. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARINGS ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from May 1944 to February 1946. The case comes to the Board of Veterans’ Appeals (Board) from the March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The veteran testified at an RO personal hearing in August 1994 and at a Travel Board personal hearing in July 1995. In July 1996 the Board remanded the case for further development, including for inquiries directed at determining the veteran’s relative level of exposure to asbestos in service and during employment with Consolidated Steel Corporation in Orange, Texas, from 1942 to 1946. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that he was exposed to asbestos in service while serving aboard Naval vessels and in the course of performing other service duties, including cleaning asbestos flooring. He further contends that as a result of that inservice asbestos exposure he incurred asbestosis many years later from which he continues to suffer. He contends that he was not, to his knowledge, exposed to asbestos other than in service. Accordingly, he 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. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 preponderance of the evidence supports the veteran’s claim for service connection for asbestos-related lung disease and is against the claim for service connection for asbestosis. FINDINGS OF FACT 1. The veteran was not exposed to asbestos during his periods of employment with Consolidated Steel Corporation in Orange, Texas, from 1942 to 1946. 2. The veteran was exposed to asbestos when serving aboard Navy vessels in service. 3. The veteran currently suffers from asbestos-related lung disease as a result of asbestos exposure in service, but does not currently suffer from asbestosis. CONCLUSIONS OF LAW 1. Asbestos-related lung disease was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1997). 2. Asbestosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran served on active duty in the Navy from May 1944 to February 1946. His NAVPERS 553 informs that this included four months of overseas duty, and that his rating at service separation was Seaman 2c. A June 1944 service enlistment qualifications card informs that the veteran’s capacity in his two-and-one-half years of employment with Consolidated Steel, Ltd., was that of Driller (IV), within the boilermaker department, and that his duties consisted of “[o]perat[ing] a compressed air drill to drill, ream and countersink steel plates.” Service medical records show that the veteran was treated for pneumonia in March 1945, but contain no other record of findings, diagnoses, or treatment for pulmonary conditions. In a VA application for compensation or pension filed in February 1949, the veteran reported that between April 1942 and May 1944 he had been employed as a “Boiler Maker” with Consolidated Steel, in Orange, Texas, and reported that his duties in that position consisted of “general construction work.” November 1992 pulmonary function tests, conducted by VA, disclosed a peripheral or small airway disease. A November 1992 abdominal computerized tomography (CT) report, from St. Elizabeth Hospital, Beaumont, Texas, included findings of extensive pleural and diaphragmatic calcifications assessed as due to previous asbestos exposure. A November 1992 St. Elizabeth Hospital chest X-ray report includes findings of moderate pleural thickening along both lateral chest walls and what appeared to be some pleural calcifications assessed as due to asbestos exposure, with no other changes noted except blunting of both costophrenic angles. In a March 1993 statement the veteran provided information about inservice exposure to asbestos from January 1944 to December 1946. He stated that he worked in an ammunition room on the bottom of the ship, and that asbestos coated pipes throughout the ships on which he served. He added that he slept aboard ship within one foot of the asbestos. He added, in effect, that he was also stationed at a receiving station in Boston, Massachusetts, where his duties included cleaning asbestos floors. In a June 1993 letter, H. Z. Bencowitz, M.D., a private physician, informed that he had evaluated the veteran several times. He stated that the veteran had bilateral pleural thickening with calcification and calcified pleural plaque on the diaphragm, with no history of hemothorax, empyema, or previous chest surgery. He noted that the veteran had a history of exposure to asbestos insulation. The physician reported that he therefore had informed the veteran that in all probability the veteran’s pleural abnormalities were due to asbestos-related pleural disease. The physician qualified, however, that that did not constitute a diagnosis of asbestosis. The veteran was examined by VA for compensation purposes in July 1993. He gave a history of being diagnosed as having asbestosis in 1989 by a private physician. He believed that he was exposed to asbestos as a gunman in the Navy. He stated that it was on every pipe on the ship and that he slept next to asbestos. He had pneumonia in the Navy in 1945 and reported that he had been short of breath for more than 30 years. Physical examination revealed that respiration was 14 to 16 per minute. No dyspnea was noted. There was no cyanosis and no clubbing. Auscultation of the lungs revealed bilateral basilar crackles. There were no rales or wheezes. The diagnoses included asbestosis, claimed as service connected. It was noted that a chest X-ray was pending and the pulmonary function test results from November 1992 would be obtained. The X-ray report and pulmonary function test results were attached to the examination report, but there is no indication that the examiner reviewed these documents or revised/updated the pertinent diagnosis. In his September 1993 substantive appeal, the veteran stated that prior to service he worked for Consolidated Steel drilling holes in new hulls, and was not exposed to asbestos- related work. He stated that not only was he stationed aboard ships in service in the Navy, but that he was also assigned to the Navy Reception/Receiving Company in Boston, Massachusetts, where one of his assigned tasks was to maintain and buff the asbestos tile flooring in the facility. He stated that he was exposed to numerous amounts of asbestos in service. He further stated that in his work as a carpenter post service he was not exposed to asbestos. An October 1993 St. Elizabeth Hospital chest computerized tomography (CT) report included findings of extensive bilateral pleural thickening, pleural plaque formation, and pleural and diaphragmatic calcification, as well as evidence of linear fibrosis in both mid and lower lung fields, particularly in the lung bases. The findings were assessed as being evidence suggesting previous asbestos exposure. There was no focal parenchymal or pleural mass, and no hilar or mediastinal lymphadenopathy. In his October 1993 VA Form 9, the veteran indicated that he worked after service as a carpenter and had no exposure to asbestos. In a November 1993 private progress note of G. E. Thomas, M.D., for treatment of the veteran, the physician reported having reviewed recent CT scans of the chest and abdomen. The physician concluded, in pertinent part, that the veteran had asbestos exposure with classic, significant pleural plaque and fibrosis. At an August 1994 RO personal hearing, the veteran testified that in service he was exposed to asbestos that was wrapped around pipes on ships on which he was stationed. He testified that on smaller ships on which he was stationed when the guns were fired the dust came off the pipes. He testified that on the ships the asbestos was only on the pipes. He testified that he primarily worked with munitions in service, as a gunner’s mate, with his duties primarily limited to the ammunition room checking the guns, ammunition, and torpedoes, and keeping them clean. He testified that in service he was only exposed to practice firing of the guns. He testified, in effect, that for the six to eight months that he was stationed aboard ships, he slept aboard the ships on bunks that were proximate to the asbestos-coated pipes. He testified that he was currently being treated for asbestos, but that he suffered from shortness of breath and intermittent pains in his chest since separation from service, with gradual increase in the severity of those symptoms. He added that he suffered from pneumonia in service, with chest symptoms since that time. He testified, in effect, that he was not exposed to asbestos either before or after service. He testified that he worked at a shipyard prior to service, where he did drilling, but that he did not know of any exposure to asbestos during that work and was unaware of the presence of any asbestos in the shipyard during his period of work there. He testified that there was welding where he worked at the shipyard. He testified that post service he worked in carpentry until he retired. A July 1994 chest X-ray report assessed chronic pleural and parenchymal changes, unchanged from previous examination in May 1994. In an August 1994 letter, Dr. H. Z. Bencowitz reviewed examinations he had made of the veteran in 1991, 1992, and 1993, including pulmonary function studies in January 1992 which were within normal limits except for mild restrictive lung disease. February 1993 X-rays were noted to be unchanged from previous films. The physician assessed, in pertinent part, asbestos-related pleural disease. In a March 1995 private medical consultation report, Dr. H. Z. Bencowitz noted that chest X-rays back to 1990 showed bilateral pleural thickening probably due to the veteran’s asbestos exposure while working in a shipyard and doing industrial construction. The physician’s impression was of bilateral pleural thickening probably secondary to asbestos exposure. Regarding these statement by Dr. Bencowitz about shipyard asbestos exposure, the veteran, in a September 1997 statement, informed that the physician’s statements about shipyard and construction exposure to asbestos were merely speculative and not directly quoted from the veteran. In a March 1995 private hospitalization discharge summary from St. Elizabeth Hospital, the reporting physician, T. R. Lombardo, M.D., noted Dr. Bencowitz’s March 1995 consultation to the effect that the veteran’s chest X-rays did not support a diagnosis of asbestosis but rather of chronic obstructive pulmonary disease (COPD). At a July 1995 Travel Board personal hearing, the veteran testified that he worked prior to service in a lumber yard, in a sawmill, and in a shipyard. He testified that he worked at the sawmill for a year or a year-and-a-half, and at the shipyard for a year or a year-and-a-half. He testified that at the lumber yard and saw mill he primarily drove a small truck moving lumber, and was never around any of the saws. He testified that at the shipyard his title was boilermaker, but his only job was to drill holes in the sides of the ships for rivets for ship assembly. He testified that a great many people were called boilermakers who simply drilled holes in the outsides of the ships or otherwise did jobs other than making boilers. He testified that he never saw a boiler, and did not work inside the ships in the course of his work in the shipyard. He testified that he entered the Navy in perhaps 1944 and his military occupational specialty (MOS) was gunner’s mate, even though his rate was first-class seaman. He testified that he primarily took care of guns and ammunition on the ship. He testified that one of the ships on which he was stationed was the Prince Williams, which was a converted plane carrier, and another he believed was the AN-37 Teakwood. He did not recall the name of the third ship on which he was stationed. He testified that many times when the ship’s guns fired the pipes in the ship gave off dust. He testified that this was particularly the case aboard the 1918 destroyer he was on. He testified that he slept in bunks attached to the wall of the ship, directly under the pipes. He added that the asbestos material was in every compartment he ever entered. He testified that in service he spent six to eight months aboard ships. He emphasized, in effect, that he was certain the asbestos exposure which caused his asbestosis was from his Navy service, because that was the only time he was around pipes wrapped with asbestos, or asbestos in other places. The veteran testified that post service he primarily did carpentry work; but he also worked around a gas station, pumping gas and washing cars, and did some ironworking. He testified that the ironworking consisted of erecting the iron support structures of buildings. However, he added that he did not stay with ironworking because he could not tolerate the heights. He retired from work in carpentry in about 1960 due to shortness of breath requiring hospitalization, and began receiving Social Security Disability benefits. He testified that he also developed pneumonia in service, in November or December, 1945, the symptoms of which, including shortness of breath and coughing, persisted until his discharge examination in February 1946, and that the shortness of breath had persisted following service until the present time. He added, in effect, that he was treated for shortness of breath many times after separation from service, and that the condition had gradually grown considerably worse. He added that after service he was hospitalized at a VA hospital at the end of 1953 and into part of 1954. He testified that he currently used a Vanceril inhaler four times per day, with Atrovent. He testified that he has been diagnosed with asbestosis. He testified that currently when he exerted himself he lost his breath. He testified, in effect, that his shortness of breath had persisted since the day he left service, as a result of the inservice pneumonia, which left him chronically short of breath. However, he added that the condition had progressively grown worse. Four portable chest X-ray reports from St. Elizabeth Hospital in December 1995 variously included findings and impressions of pulmonary parenchyma within normal limits, with calcific plaque along the right hemidiaphragm; diaphragmatic calcification compatible with previous asbestos exposure; left pleural effusion; and bilateral pleural thickening with calcified pleural plaque suggesting asbestosis. The claims file contains a September 1996 letter from a fellow employee of Consolidated Steel Corporation of Orange, Texas, informing that that employee had also worked as a boilermaker for the company from 1942 to 1944, and had drilled holes in the steel of ships being built. He informed that there was no asbestos in the area where they worked in that stage of construction. He further stated that from 1942 until the veteran was drafted in 1944, he and the veteran had worked performing the same drilling tasks on the same ships. He added that he himself had never suffered from any health problems due to asbestos. Another September 1996 letter from another fellow employee informed that that employee worked for Consolidated Steel in Orange, Texas, from 1941 to 1945 out of the boilermaker department as a shipfitter, and eventually as a leaderman. He informed the veteran rode with him to work each day, and that the veteran then worked as a driller on the ship shells, only on the outside of the ships, in the boiler maker department. A Social Security Administration record of the veteran’s places of employment and earnings shows that the veteran was employed with the Consolidated Steel Corp., Ltd., from the spring of 1942 to the spring of 1944, and again in the first half of 1946. A November 1997 St. Elizabeth Hospital chest X-ray report found, in pertinent part, no definite evidence of active infiltrates with the left lung base appearing much clearer as compared to January 1996 X-rays, but with bilateral pleural thickening and evidence of costophrenic angle blunting bilaterally. The examiner assessed, in pertinent part, chronic pulmonary disease, but with an infiltrate involving the lingular having resolved since January 1996; and chronic pleural changes, with pleural changes on the left also less apparent since January 1996. Analysis Initially, the Board finds the veteran’s claim for service connection for asbestos-related lung disease, to include asbestosis, well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Once it has been determined that the claim is well grounded, the VA has a statutory duty to assist the veteran in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The Board is satisfied that the RO has made all reasonable efforts to obtain all available evidence pertinent to the claim and that proper appellate development, including appropriate notice to the veteran, has been made. The Board is satisfied that all available evidence necessary for an equitable disposition of the appeal has been obtained. The Board therefore finds that the duty to assist has been met. Service connection may be granted for a disability which is incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). The implementing regulations provide that continuity of symptomatology is required where a disorder initially identified during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1997). The implementing regulations also provide that a disability initially diagnosed after service may be service connected where a review of all the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d) (1997). With a chronic disease shown as such in service (or within an applicable presumptive period), subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent cause. This rule does not mean that any manifestation of joint pain, any cough, or any urinary finding of casts in service will permit service connection for arthritis, pulmonary disease, or nephritis first shown as a clear-cut entity at some later date. For the showing of chronic disease in service, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic” is required. 38 C.F.R. § 3.303(b) (1997). Here, the veteran contends that exposure to asbestos in service has caused asbestosis, and that he was not exposed to asbestos other than in service. While current medical findings do not support a claim for service connection for asbestosis (as explicated below), they do support a claim for asbestos-related lung disease. The distinction between asbestosis and asbestos-related lung disease is a real one, but not one which the Board will hold against the veteran in any strict interpretation of his pleadings. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1997). Accordingly, the Board has interpreted the veteran’s claim as one for service connection for asbestos-related lung disease, to include asbestosis. The United States Court of Veterans Appeals (Court) has provided a definition of asbestosis: "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet.App. 428, 429 (1993). VA has published a definition of asbestos as "a fibrous form of silicate mineral of varied chemical composition." VA Adjudication Procedure Manual, M21-1, Part VI, § 7.68(a)(2) (November 14, 1996). Asbestosis is typically manifested many years after the exposure; the latency period varies from 10 to 45 or more years between first exposure and the development of the disease. VA Adjudication Procedure Manual, M21-1, Part VI, 7.68(b)(2) (November 14, 1996). The Court has indicated that, while there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations, VA has issued a circular on asbestos-related diseases which provides some guidelines for considering compensation claims based on exposure to asbestos: Department of Veteran's Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). McGinty v. Brown, 4 Vet.App. 428, 432 (1993). The DVB Circular was subsequently rescinded and its basic guidance is now found in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (Jan. 31, 1997). According to M21-1, inhalation of asbestos fibers can produce fibrosis and tumors, interstitial pulmonary fibrosis (asbestosis) being the most common disease. 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. 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. M21-1 also indicates that 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-inspiratory 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. High exposure to respirable 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 the fact that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). When considering VA compensation claims, rating boards have the responsibility for ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and to assure that development is accomplished to ascertain whether or not there is pre-service 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. In McGinty, the Court also indicated that, while the veteran, as a lay person, was not competent to testify as to the cause of his disease, he was, however, competent to testify as to the facts of his asbestos exposure. McGinty, 4 Vet.App. at 432. As noted above, the guidelines in M21-1 and McGinty for determination of service origin in claims for service connection for asbestosis, are also applicable to a claim for service connection for asbestos-related lung disease. In the present case, the veteran contends that he was exposed to asbestos during his Navy service and that the exposure caused his current asbestosis. Competent medical evidence establishes current asbestos-related lung disease due to past asbestos exposure, but does not establish the presence of asbestosis itself. Recent chest X-rays and CT scans from 1992 through 1997 included findings of diaphragmatic calcification, pleural thickening, or pleural plaques assessed as consistent with asbestos exposure. Medical opinions, including those from Dr. H. Z. Bencowitz and St. Elizabeth Hospital, were to the effect that these pleural symptoms were consistent with asbestos-related pleural disease affecting lung function (and hence asbestos-related restrictive lung disease). However, these X-ray findings, and assessments of Dr. H. Z. Bencowitz and those from St. Elizabeth Hospital were to the effect that the veteran did not suffer from parenchymal changes or obstructive lung disease due to asbestos, or asbestosis, but rather that his obstructive lung condition was COPD. Although the July 1993 VA examiner diagnosed asbestosis, it appears that this diagnosis was based on the history given by the veteran of a diagnosis of asbestosis by a private doctor in 1989. The examination report gives no findings supporting a diagnosis of asbestosis and the examiner apparently did not review the results of earlier pulmonary function tests or a current chest X-ray. Thus, the examiner’s diagnosis has no credible basis and does not serve to establish the presence of asbestosis. Hence the Board finds that the preponderance of the evidence supports the presence of asbestos-related lung disease due to prior asbestos exposure, but there is not medical evidence to support a claim for service connection for asbestosis as it is not shown to be present by credible medical evidence. The Board now looks to the question of service origin for the veteran’s asbestos-related lung disease. In this case, while the veteran worked at a shipyard for Consolidated Steel Corp. Ltd. between the spring of 1942 and the spring of 1944, and again in the first half of 1946, the veteran has testified that he was not exposed to asbestos during the course of his employment with that company, but rather that the extent of his duties consisted of drilling holes in the outside of ship’s hulls, in a process and in an area of the shipyard where asbestos was not used. His statements are supported by statements of fellow employees who worked for the company with the veteran, to the effect that the veteran only worked outside the hulls of the ships drilling holes in the hulls, and was not exposed to asbestos when performing that work. His statements are also supported by the veteran’s June 1944 service enlistment qualifications card, which informs that prior to service the veteran was employed for Consolidated Steel in the boilermaker department, but that his duties consisted of drilling, reaming, and countersinking steel plates. M21-1 informs that there may be a high statistical correlation between shipyard work and incurrence of asbestos- related disease many years later. However, the manual only provides guidelines on the issue. The manual does not determine that if a veteran worked at a shipyard he was ipso facto exposed to asbestos. Were there no evidence to the contrary other than the veteran’s mere statement of absence of exposure during shipyard work, the Board might be inclined to conclude that the veteran was in error and that he had in fact been exposed to significant quantities of asbestos during his shipyard work. Here, however, the veteran has presented a plausible explanation for his non-exposure to asbestos in his shipyard work. Further, his position is supported by his prior report in his June 1944 service enlistment qualifications card (years before he could have known that absence of such exposure could have benefited him in a claim), as well as by statements of fellow employees of Consolidated Steel. Where the VA has been unable to determine definitively whether the veteran was assigned to tasks in his employment with Consolidated Steel exposing him to asbestos, the VA cannot, by virtue of that absence of knowledge, require the veteran to prove a negative – that he was not so exposed during his shipyard work – in order to defend his claim for service connection. To defend his claim against the possibility of more significant asbestos exposure during his shipyard work outside service than during his Navy service, it is sufficient that the veteran has presented reasonable evidence that he was not exposed to asbestos while working for Consolidated Steel, and that the VA has not uncovered any contrary evidence showing such exposure. The veteran’s service separation form NAVPERS 553 informs that the veteran was a Seaman 2c, with four months overseas duty. The manual informs that asbestos was used extensively in military ship construction, and that millions of U.S. Navy veterans were exposed. This supports the veteran’s contention that he was exposed to asbestos in service aboard Navy vessels. As may be noted in the factual background, above, there is ample evidence of current asbestos-related lung disease, including diagnoses of asbestos-related lung disease supported X-ray evidence of pleural thickening and plaques characteristic of asbestos-related lung disease. Further, the diagnosed asbestos-related lung disease has been medically attributed to past asbestos exposure. Accordingly, because the veteran was exposed to asbestos in service and the Board is satisfied for purposes of this decision, based on the evidence of record, that the veteran was not exposed to asbestos outside service, and because the veteran currently suffers from asbestos-related lung disease which has been medically attributed to past asbestos exposure, the Board finds that the preponderance of the evidence supports the veteran’s claim for service connection for asbestos-related lung disease. Because credible medical evidence has not been presented diagnosing asbestosis, the preponderance of the evidence is against the veteran’s claim of entitlement to service connection for asbestosis. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER 1. Service connection for asbestos-related lung disease is granted. 2. Service connection for asbestosis is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 -