Citation Nr: 1112623 Decision Date: 03/30/11 Archive Date: 04/07/11 DOCKET NO. 06-37 229A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for bronchitis, including as a result of exposure to asbestos. 3. Entitlement to service connection for asthma, including as a result of exposure to asbestos. 4. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from November 1943 to May 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2005 and June 2009 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). In February 2008, the Veteran and his wife testified at a hearing before the undersigned at the RO in connection with the service connection claims. In March 2011, the Veteran's wife testified at a video hearing before the undersigned in connection with the Veteran's special monthly compensation claim. In April 2008 and again in January 2009, the Board remanded the Veteran's service connection claims for further development. In February 2011, the Board requested an Independent Medical Examiner (IME) opinion in connection with the Veteran's service connection claims. Later that same month, the Board received the requested opinion. The record on appeal also shows that the Veteran filed a notice of disagreement with the RO's denial of his claims of service connection for right and left leg disorders in an October 2005 rating decision and his claim for a total rating based on individual unemployability (TDIU) in a June 2009 rating decision. However, these issues are not before the Board because in May 2007 the Veteran withdrew his claims for right and left leg disorders and in July 2010 the RO granted the TDIU claim. See 38 C.F.R. § 20.204(b) (2010) (a substantive appeal may be withdrawn at any time before the Board promulgates a decision); Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). Similarly, the Veteran's claim of service connection for emphysema and a low back disorder are no longer in appellate status because they were denied by the Board in the April 2008 and January 2009 Board decisions. The claims of service connection for bronchitis and asthma, and the claim for special monthly compensation are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the competent and credible evidence of record demonstrates that the Veteran's asbestosis was caused by his in-service exposure to asbestos. CONCLUSION OF LAW Asbestosis was incurred in service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Given the favorable decision contained herein, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary since any deficiency in the timing or content of such notice would constitute harmless error. The Veteran contends that he had asbestos exposure while he served aboard the Naval ships, the U.S.S. Belle Grove and U.S.S. Kidd, wrapping pipes with insulation made of asbestos and sleeping in rooms aboard ship whose walls were lined with asbestos. It is also requested that the Veteran be afforded the benefit of the doubt. Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to disease or injury caused by the alleged asbestos exposure, the Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases, but only special guidelines for developing these claims. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29 (July 20, 2009); M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9 (December 13, 2005). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As to medical evidence of a current disability, the Board notes that post-service treatment records document the Veteran's complaints, diagnoses, and treatment for asbestosis starting since at least 2006. See, for example, the September 2006 report from Mark Schiefer, M.D. (diagnosing asbestosis based on a chest x-ray); October 2006 letter from R. Jeffrey Eisenach, M.D. (diagnosing asbestosis based on a recent chest x-ray); and January 2008 letter from Christopher L. John, M.D. (diagnosing asbestosis based on testing, including pulmonary function tests). As per the M21-1MR, these records show that the Veteran's asbestos is supported by radiographic evidence as well as the appellant's claims regarding asbestos exposure while on active duty. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9(e) (a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence). While the April 2009 VA examiner thereafter opined that the Veteran did not currently have x-ray evidence of pulmonary asbestosis, earlier records generated during the appeal period as well as the subsequent February 2011 IME nonetheless diagnosed asbestosis based on radiographic evidence. In sum, the Board finds the more probative evidence on file establishes that the Veteran has a current diagnosis. As to evidence of in-service incurrence of a disease or injury, the Board notes that the Veteran's contentions regarding in-service exposure to asbestos are plausible given the fact that his available service personnel and medical records document service aboard the U.S.S. Belle Grove starting in August 1944 and on the U.S.S. Kidd starting in March 1946 and the M21-1MR notes that naval ships during this time used asbestos. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9(f) (Some of the major occupations involving exposure to asbestos include work in shipyards and insulation work); M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9(g) (High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. 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 were used extensively in military ship construction). The Board has also reached this conclusion because the work duties the claimant described (wrapping pipes with insulation made of asbestos) are both observable by a lay person and there is no evidence in the record that contradicts the Veteran's assertions as to his service assignments. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Board will concede that the Veteran was exposed to asbestos while on active duty and this exposure acted as his in-service injury. As to medical evidence of a nexus between the claimed in-service injury and the current disability, the record reveals a September 2006 report from Dr. Mark Schiefer, an October 2006 letter from Dr. Eisenach, and a January 2008 letter from Dr. John linking pulmonary disease to exposure to asbestos. Moreover, in his October 2006 letter Dr. Eisenach also opined that the Veteran had significant exposure to asbestos dust while in the navy and appears to link this in-service exposure to his current asbestosis. Likewise, in the January 2008 letter from Dr. John it was noted that the Veteran's history included exposure to asbestos while in the navy wrapping pipes with asbestos lining and sleeping in an area where the walls were coved in asbestos as well as opined that he had a diagnosis of pulmonary asbestosis. In the February 2011 IME, it was first noted that the IME was basing his opinion on the evidence found in the record on appeal including the history of in-service exposure to asbestos provided by the Veteran and the October 2005 chest x-rays reviewed by Dr. Schiefer in which he diagnosed asbestosis. It was also noted that Dr. Schiefer took the American College of Radiology pneumoconiosis course and passed the certifying examination and was therefore "ideally qualified" to interpret the x-rays. It was thereafter opined as follows: Dr. Schiefer's interpretation noted . . . asbestos-related lung disease, and he concluded that the x-rays supported such a diagnosis. In the absence of a different interpretation from an equally qualified source, I believe this reading must carry considerable weight . . . In summary, based on current information available [including the October 2005 x-ray interpreted by Dr. Schiefer and the Veteran's claims regarding asbestos exposure while in the navy], I believe that this Veteran may be presumed to have developed interstitial and pleural disease [i.e., asbestosis] from his known exposure to asbestos while serving in the U.S. Navy. I believe it to be 'more likely than not,' and believe that it contributes to his shortness of breath . . . I suggest that 50% of the patient's shortness of breath be considered attributable to the asbestos exposure. There is no other medical opinion of record which directly contradicts the positive nexus opinion, discussed above.. See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Moreover, while the record does not show the Veteran being diagnosed with asbestosis for many decades after his 1946 separation from active duty, the Board does not find that this negative evidence weighs against his claim because the latent period for asbestosis varies from 10 to 45 or more years between the first exposure and development of the disease. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29; M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9(d). Granting the Veteran the benefit of any doubt in this matter, the Board concludes that service connection for asbestosis is warranted because the record contains medical evidence of a current disability, evidence of the in-service incurrence of an injury (i.e., asbestos exposure), and medical evidence of a nexus between the in-service injury and the current disability. See 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2009); Hickson, supra; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). ORDER Service connection for asbestosis is granted subject to the laws and regulations governing the award of monetary benefits. REMAND As to the claim of service connection for bronchitis and asthma as well as the claim for special monthly compensation, the Board notes that while the existing record includes one claims file and two temporary claims files, it does not appear that all pertinent records are on file. For example, the Board notes that, while one of the temporary claims files contains an aid and attendance examination report received by the RO in December 2008, only the first page of this apparently multiple page report is found in any of the claims files. Therefore, the Board finds that a remand is required for the RO to merge the two temporary claims files with the permanent claims file and to insure that all records prepared by the RO and provided by the appellant in support of the claims, including a complete copy of the December 2008 aid and attendance examination are associated in the permanent claims file. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 19.9 (2010). As to the special monthly compensation claim, given the above development as well as the November 2010 letter from M. S., M.D. while the appeal is in remand status the Veteran should be afforded another VA examination to ascertain whether he meets the criteria for aid and attendance. See 38 U.S.C.A. §§ 1114(l) (West 2002), 5103A(d) (West 2002); 38 C.F.R. §§ 3.326, 3.350(b), 3.352 (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). Accordingly, these issues are REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should consolidate all temporary claims files with the permanent claims file and insure that the record includes complete copies of all records generated by the RO in connection with the appeal as well as those provided by the claimant in support of the appeal including a complete copy of the December 2008 aid and attendance examination found in one of the temporary claims files. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records and the Veteran notified of the missing records. 2. After undertaking the above development, the RO/AMC should make arrangements with an appropriate VA medical facility for the Veteran to be afforded an aid and attendance examination. The claims folder is to be provided to the examiner for review in conjunction with the examination. The examiner, after a detailed review of the Veteran's history and an examination of the claim, should provide opinions as to the following: (a) Is it at least as likely as not that the Veteran's service connected disabilities, acting alone, cause him to: i. Be unable to dress or undress himself; keep himself ordinarily clean and presentable? ii. Have a frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid? iii. Be unable to feed himself through loss of coordination of upper extremities or through extreme weakness? iv. Be unable to attend to the wants of nature? v. Have an incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment? (b) Is at least as likely as not that the Veteran's service connected disabilities, acting alone, substantially confine him to his house or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout his lifetime? The examiner should provide a clear rationale for all opinions. Note 1: In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 3. Thereafter, the RO/AMC should readjudicate the claims. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs