C C KOS: I Hope Santa Brought B.A.C.A.L.A a Big Brown Bag Of Asbestos For Christmas!Citation Nr: 0802538
Decision Date: 01/23/08 Archive Date: 01/30/08
DOCKET NO. 02-13 877 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for a pulmonary disorder,
to include as due to asbestos exposure.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
N. Kroes, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1974 to May 1978.
This case initially came before the Board of Veterans'
Appeals (Board) on appeal from the Pittsburgh, Pennsylvania,
Department of Veterans Affairs (VA) Regional Office (RO).
In October 2002, the Board remanded the claim for a
videoconference hearing, but the veteran withdrew his request
for a hearing in April 2005 correspondence. The Board again
remanded the claim for additional development in May 2005 and
August 2006. Substantial compliance having been completed
the case has been returned to the Board. Since the last
supplemental statement of the case, the veteran has submitted
additional evidence. In a December 2007 informal hearing
presentation, the veteran's representative waived the RO's
consideration of this new evidence. See 38 C.F.R.
§ 20.1304(c) (2007).
In July 2006, the Board granted the veteran's motion to
advance his case on the Board's docket. See 38 U.S.C.A. §
7107 (West 2002); 38 C.F.R. § 20.900(c) (2007).
FINDING OF FACT
Competent medical evidence of record supports a finding that
a pulmonary disorder is more likely than not the result of
asbestos exposure during the veteran's active military
service.
CONCLUSION OF LAW
With resolution of reasonable doubt in the veteran's favor,
an asbestos-related pulmonary disorder was incurred during
active military service. 38 U.S.C.A. §§ 1110, 1131, 5107
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case,
the Board is granting in full the benefit sought on appeal.
Accordingly, assuming, without deciding, that any error was
committed with respect to either the duty to notify or the
duty to assist, such error was harmless and will not be
further discussed.
II. Service Connection
The veteran asserts that he has an asbestos-related pulmonary
disorder caused by exposure to asbestos exposure while
serving as a machinist's mate aboard ship while on active
duty in the United States Navy.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service
connection may also be granted for any disease diagnosed
after discharge when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
To prevail on the issue of service connection, there must be
medical evidence of a current disability; medical evidence,
or in certain circumstances, lay evidence of in-service
occurrence or aggravation of a disease or injury; and medical
evidence of a nexus between an in-service injury or disease
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the veteran had a chronic condition in service or during
an applicable presumption period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the Court's case law, lay
observation is competent. Savage v. Gober, 10 Vet. App. 488,
498 (1997). In addition, if a condition noted during service
is not shown to be chronic, then generally a showing of
continuity of symptomatology after service is required for
service connection. 38 C.F.R. § 3.303(b).
There is no specific statutory or regulatory guidance with
regard to claims for service connection for asbestosis or
other asbestos-related diseases. However, in 1988, VA issued
a circular on asbestos-related diseases that 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, M21-1MR, Part IV, Subpart ii, Chapter 2,
Section C (hereinafter "M21-1MR"). Also, an opinion by
VA's Office of General Counsel discusses the development of
asbestos claims. See VAOPGCPREC 4- 2000 (April 13, 2000),
published at 65 Fed. Reg. 33422 (2000).
VA must analyze the veteran's claim of entitlement to service
connection for an asbestos-related pulmonary disorder 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 M21-1MR contains
guidelines for the development of asbestos exposure cases.
Paragraph (a) lists common materials that may contain
asbestos including steam pipes for heating units and boilers,
ceiling tiles, roofing shingles, wallboard, fire-proofing
materials, and thermal insulation.
Paragraph (b) in essence acknowledges that inhalation of
asbestos fibers can result in fibrosis, the most commonly
occurring of which is interstitial pulmonary fibrosis or
asbestosis. Inhaling asbestos fibers can also lead to
pleural effusions and fibrosis, pleural plaques,
mesotheliomas of the pleura and peritoneum, and cancer of the
lung, bronchus, gastrointestinal tract, larynx, pharynx, and
urogenital system (except the prostate).
Paragraph (d) notes that the latency period for development
of disease due to exposure to asbestos ranges from 10 to 45
or more years between the first exposure and the development
of the disease.
Paragraph (e) provides that a clinical diagnosis of
asbestosis requires a history of exposure and radiographic
evidence of parenchymal lung disease. Symptoms and signs
include dyspnea on exertion, end-respiratory rales over the
lower lobes, compensatory emphysema, clubbing of the fingers
at late stages, and pulmonary function impairment and cor
pulmonale that can be demonstrated by instrumental methods.
Paragraph (h) provides that VA must determine whether service
records demonstrate evidence of asbestos exposure during
service; whether there is pre-service and/or post-service
evidence of occupational or other asbestos exposure; and then
make a determination as to the relationship between asbestos
exposure and the claimed disease, keeping in mind the latency
and exposure information pertinent to the veteran.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The veteran has submitted a great deal of evidence to support
his contention that he was exposed to asbestos while serving
in the Navy, including on line research, articles, training
manual excerpts, and "buddy" statements. The veteran's
service personnel records show that he was a machinist's mate
who was assigned to the engine room of the U.S.S. Neosho
during his service. Multiple letters written by fellow
sailors detail asbestos exposure by the veteran, and an
August 2005 letter from the contractor assigned with
dismantling the ship the veteran served aboard reported that
after the ship was 50 percent dismantled asbestos disposal
logs showed that 186.35 tons of asbestos had been removed.
This letter also notes that the ship had significant levels
of asbestos in certain areas, including the engine room. The
evidence of record shows that the veteran was exposed to a
significant amount of asbestos while in service.
A December 1999 CT (computed tomography) scan report prepared
by Dr. "G.S." of the Dubois Regional Medical Center was
interpreted to show the veteran with interstitial fibrotic
changes. A private physician, Dr. "A.I.," diagnosed the
veteran with mild restrictive lung disease (January 2000),
mild interstitial pulmonary fibrosis (August 2000), and
asbestosis (January 2001) based on this CT scan and pulmonary
function tests. Doctor "A.I." also indicated in his August
2000 letter that it was likely that the veteran developed
mild interstitial pulmonary fibrosis during service, possibly
related to asbestos exposure at that time. A VA examiner in
October 2000 diagnosed the veteran with mild interstitial
pulmonary fibrosis but could not state with certainty whether
the veteran had asbestos related disease. The VA examiner
and Dr. "A.I." both indicated that manifestations such as
pleural plaques would strengthen an association between
interstitial pulmonary fibrosis and exposure to asbestos, and
that a lung biopsy would provide the most definitive
diagnosis.
Further examination was requested to clarify the matter, and
in March 2006 a VA examiner concluded that the veteran had no
restrictive lung disease based on contemporaneous chest x-
rays and pulmonary function tests. The Board then remanded
the claim for another VA examiner to review the evidence and
identify the precise nature and etiology of any lung disorder
in light of all of the medical evidence, portions of which
were conflicting.
The veteran was afforded this VA examination in May 2007. A
pulmonary function test that day was reported as normal. In
explaining some of the conflicting evidence, the examiner
stated that a CT scan was more extensive than a chest x-ray
and that where there may not be any changes noted on a chest
x-ray they may still be evident on a CT scan. She also noted
that the most recent CT scan, from 2003, was negative. Given
that pulmonary function testing was normal dating back to
2003 and a CT scan dated from 2003 was reported as normal,
the examiner stated that she could not find any objective
evidence of any defined pulmonary disorder. She recommended
another CT scan.
After the examiner obtained a June 2007 CT scan and results
she added an addendum to the examination report which stated
that after review of the actual film with another physician,
she felt the veteran had very mild interstitial fibrosis in
both lungs. She noted that there was no evidence of pleural
plaques that would associate this fibrosis with the veteran's
asbestos exposure. Given that pulmonary function tests were
normal, she still felt it was more likely than not that the
veteran's current complaints were not related to interstitial
fibrosis or asbestos exposure incurred while in the military.
She stated that she could not totally rule out that
interstitial fibrosis may be associated with asbestos
exposure, and explained that she would suspect that if this
were the case there would be evidence of progression
reflected in decline of pulmonary function tests. Therefore,
it was her opinion that it is more likely than not that the
mild interstitial fibrosis is not related to asbestos
exposure incurred in the military.
Earlier in her report, the examiner explained that pleural
plaques help differentiate asbestos-induced parenchymal
disease from other interstitial lung disease. Pulmonary
fibrosis with an associated pleural plaque is more likely to
support asbestosis-related fibrotic disease from other
interstitial lung disease. She also relayed that an open
lung biopsy would be the most definitive diagnosis. As noted
above, the October 2000 VA examiner and Dr. "A.I." also
both indicated that pleural plaques would strengthen an
association between interstitial pulmonary fibrosis and
exposure to asbestos, and that a lung biopsy would provide
the most definitive diagnosis.
An open lung biopsy was performed by a private physician in
October 2007. According to the report associated with this
procedure, two pleural plaques were found.
The current competent medical evidence shows interstitial
pulmonary fibrosis confirmed by a June 2007 CT scan.
Different medical professionals have on multiple occasions
stated that the presence of pleural plaques would help
differentiate asbestos-induced parenchymal disease from other
interstitial lung disease. Pleural plaques were found during
an October 2007 lung biopsy, the procedure that multiple
physicians have stated would provide the most definitive
diagnosis. Considering the above, the Board is of the
opinion that the evidence is at least in equipoise as to
whether or not the veteran's interstitial pulmonary fibrosis
is related to his in-service asbestos exposure. Therefore,
resolving reasonable doubt in the veteran's favor, service
connection for an asbestos-related pulmonary disorder is
warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert, 1 Vet. App. 49.
ORDER
Entitlement to service connection for an asbestos-related
pulmonary disorder is granted.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
