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Question
Stretch
Citation Nr: 0524708
Decision Date: 09/12/05 Archive Date: 09/21/05
DOCKET NO. 03-22 180 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to service connection for interstitial fibrosis
of the lung associated with asbestos exposure.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Meawad, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1961 to May 1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Hartford, Connecticut, that denied the above claim.
In February 2004, the veteran was afforded a personal hearing
before a hearing officer at the RO and in June 2005 before
the undersigned. Transcripts of these hearings are of
record.
FINDINGS OF FACT
1. Sufficient evidence necessary for an equitable
disposition of the appeal has been obtained.
2. The veteran is diagnosed as having interstitial fibrosis
of the lung associated with asbestos exposure, which as
likely as not began in service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for
interstitial fibrosis of the lung associated with asbestos
exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1131,
1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The duty to notify and assist has been met to the extent
necessary to grant the claim. 38 U.S.C.A. §§ 5103, 5103A;
38 C.F.R. § 3.159. Thus, there is no prejudice to the
veteran in deciding his claim at this time. See Bernard v.
Brown, 4 Vet. App. 384, 392-94 (1993).
The service medical records do not show any complaints,
treatment or findings of a lung disorder. The veteran's
personnel records show that he served aboard the USS
Bayfield, USS Mann, and the USNS Gen Sultan. His primary
military occupation was an ammunition technician.
In October 1997, the veteran received private medical
treatment from Dr. Richard B. Levine. Bilateral interstitial
fibrosis was found in the veteran's mid and lower lung zones
with irregular linear interstitial markings delineated, which
Dr. Levine found to be typical of previous asbestos exposure
and indicated asbestosis.
In May 1998, the veteran received private medical treatment
from Dr. Alvin Schonfeld. The veteran reportedly smoked one
pack of cigarettes per week from age 25 to age 35 and was
exposed to aerosolized asbestos while an ironworker between
1966 and 1992. The veteran was diagnosed as having
interstitial fibrosis caused by pulmonary asbestosis.
The veteran received private medical treatment from UCONN
Medical Group. In October 2002, Dr. Michael Grey examined
the veteran and diagnosed him as having asbestosis. He
opined that the veteran's work history as an ironworker
exposed him to asbestos material. In addition, Dr. Grey
stated that the veteran had contributory asbestos exposures
during service.
In a February 2004 hearing, the veteran stated that during
service aboard the USS Bayfield, he was assigned to refurbish
the boiler room while the ship was docked. This required
scraping the walls with scrapers and steel bristled brushes.
He worked eight hours days in the boiler room for three
weeks. He did not wear protective clothing or a mask. In
addition, while the veteran was stationed in Okinawa, he
handled and disposed of old ammunition as part of his
position as an ammunition driver. Some of the ammunition was
leaking, so he had to dump them into the sea. Some of the
ammunition he handled was covered with fire blankets, which
were made of asbestos. The veteran admitted that he was also
exposed to
asbestos post service as an ironworker, but stated that he
believed his exposure during service was also a contributing
factor to his current disability.
In a June 2005 personal hearing, the veteran gave a similar
account of his exposure to asbestos inservice and post
service as stated during the February 2004 hearing. He added
that when disposing of ammunition during service, they burned
some of the old ammunition, which contained asbestos.
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 1137
(West 2002); 38 C.F.R. § 3.303(a) (2004).
In order to prevail on the issue of service connection for
any particular disability, 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); see also Pond v. West, 12 Vet App. 341, 346 (1999).
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. See Masors
v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2
Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet.
App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Equal weight is not accorded to each piece of evidence
contained in the record; every item of evidence does not have
the same probative value.
The Board must analyze the veteran's claim of entitlement to
service connection for asbestos-related disease with
consideration of VA Adjudication Procedure Manual, M21-1,
part VI, para. 7.21 (February 5, 2004) (hereinafter "M21-1").
In addition, an opinion by VA's Office of General Counsel
should also be considered, which discusses the development of
asbestos claims. VAOPGCPREC 4-00 (April 13, 2000), published
at 65 Fed Reg. 33,422 (2000). 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). Of significance is
that the exposure to asbestos may be brief (as little as a
month or two) or indirect (bystander disease). Id. Part (a)
in essence acknowledges that inhalation of asbestos fibers
can result in fibrosis and tumors, and produce pleural
effusions and fibrosis, pleural plaques, mesotheliomas of the
pleura and peritoneum, and cancer of the lung,
gastrointestinal tract, larynx, pharynx and urogenital system
(except the prostate), with the most common resulting disease
being interstitial pulmonary fibrosis (asbestosis). Also
noted is the increased risk of bronchial cancer in
individuals who smoke cigarettes and have had prior asbestos
exposure.
M21-1, Part VI, para. 7.21(B) pertains to occupational
exposure, and acknowledges that high exposure to asbestos and
a high prevalence of disease have been noted in insulation
and shipyard workers, as asbestos was used extensively in
military ship construction. Exposure has also been found
with occupations involving carpentry and construction and
military equipment. M21-1, Part VI, para. 7.21© provides
that the clinical diagnosis of asbestosis requires a history
of exposure and radiographic evidence of parenchymal lung
disease.
M21-1, Part VI, para. 7.21(d) provides that the Board must
determine whether military records demonstrate evidence of
asbestos exposure in 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
diseases, keeping in mind the latency and exposure
information pertinent to the veteran. See also VAOPGCPREC 4-
00; Ashford v.
Brown, 10 Vet. App. 120, 123-24 (1997). The determinative
issues of an asbestos case are whether an asbestos-related
disease has been diagnosed and then shown to be medically
related to in-service exposure to asbestos. See VAOPGCPREC
4-00; Nolen v. West, 12 Vet. App. 347, 351 (1999). Although
the veteran may provide competent evidence of a current
disability and of inservice exposure, the claimant would
still need to present competent medical evidence of a nexus
relating the current disability to inservice exposure to
asbestos. Id.
After a careful review of the evidence of record, the Board
finds that the evidence supports the veteran's claim of
entitlement to service connection for interstitial fibrosis
of the lung associated to asbestos exposure.
The veteran's service records show that he was stationed
aboard the USS Bayfield during service and that he was an
ammunition technician. As the Board finds the veteran's
testimony credible, such evidence supports his contentions
that he was exposed to asbestos while refurbishing a boiler
room on the ship and disposing of ammunition. In addition,
the veteran has been diagnosed as having an asbestos-related
disease, specifically interstitial fibrosis of the lung
associated with asbestos exposure. Although the veteran had
significant post-service exposure to asbestos while an
ironworker, the competent medical evidence provided by Dr.
Grey shows that his in-service exposure was a contributing
factor in his current disability. Accordingly, service
connection for interstitial fibrosis of the lung associated
with asbestos exposure is warranted.
In sum, there is competent medical evidence showing that
interstitial fibrosis of the
lung associated with asbestos exposure is related to service.
The Board finds that the evidence supports the claim, and
service connection is warranted.
ORDER
Service connection for interstitial fibrosis of the lung
associated with asbestos exposure is granted.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Stretch
Just readin the mail
Excerpt from the 'Declaration of Independence'
We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity
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