Navy Asbestos

[Stretch]

Citation Nr: 0524708

Decision Date: 09/12/05 Archive Date: 09/21/05

DOCKET NO. 03-22 180 ) DATE

)

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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

[Jim MAC]

Thanks Stretch

Thats a case I will refer to in my NOD,

Jim