TUBERCULOSIS PULMONARY CHRONIC

Summary

The veteran, who served in the Navy from November 1979 to November 1982, appeals the denial of service connection for interstitial lung disease. The veteran's military occupational specialty was operation specialist, and he served aboard the U.S.S. Forrest Sherman (DD 931). He reported exposure to dust from grinding paint and sandblasting the ship's hull, including during asbestos removal operations where shipyard workers wore protective gear, but he was not provided respiratory protection. The Board found that the evidence regarding asbestos exposure during service was in approximate balance. A private treating physician, Dr. A.M., opined in June 2018 that the veteran's interstitial lung disease and pulmonary fibrosis were likely related to asbestos exposure. This diagnosis was confirmed by a VA examiner in December 2018, although the VA examiner noted the Regional Office had not conceded asbestos exposure. The Board gave less weight to the VA's medical opinions due to the lack of conceded exposure and found the evidence for and against the claim to be in approximate balance. Applying the benefit of the doubt, service connection for interstitial lung disease was granted.

Rationale

Veteran served in the Navy from November 1979 to November 1982.; Veteran reported exposure to dust from grinding paint and sandblasting the ship's hull, including during asbestos removal operations.; Private physician opined interstitial lung disease was likely related to asbestos exposure.; VA examiner confirmed diagnosis but noted Regional Office did not concede exposure.; Board found evidence for and against asbestos exposure in approximate balance.; Benefit of the doubt applied to grant service connection.

Full Decision Text

Citation Nr: 22055416
Decision Date: 09/28/22	Archive Date: 09/28/22

DOCKET NO. 18-13 060
DATE: September 28, 2022

ORDER

Service connection for interstitial lung disease is granted.

FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, his interstitial lung disease is due to his active-duty service.

CONCLUSION OF LAW

The criteria for service connection for interstitial lung disease are met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1979 to November 1982.

This case is before the Board of Veterans' Appeals (Board) on appeal from July 2013 and February 2015 Department of Veterans Affairs (VA) rating decisions.

In March 2018, the Veteran requested a Board hearing.  In November 2021, the Veteran received notification that a hearing was scheduled for March 2022, but he did not appear at the hearing and did not explain his absence.  As such, the Veteran's hearing request is considered to have been withdrawn.  See 38 C.F.R. § 20.704.

In connection with this appeal, the Veteran testified at a hearing before a decision review officer (DRO) in June 2018.  A transcript of the hearing is of record.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

The Veteran filed a claim for asbestosis in September 2012. There is no specific statutory guidance regarding asbestos-related claims, nor has the Secretary promulgated any regulations regarding such claims. Instead, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). 

In June 2018, The Veteran submitted a letter from his treating physician Dr. A.M. indicating that the Veteran was diagnosed with interstitial lung disease and pulmonary fibrosis that was likely related to his asbestos exposure. This diagnosis was confirmed by the VA examiner as part of the December 2018 medical opinion, "However, I will move forward with a diagnosis of interstitial lung disease given the diagnosis is from a board-certified pulmonologist who has followed this veteran for at least 10 yrs." VA is obligated to liberally construe claims based on the reasonable expectations of a non-expert claimant and to determine all potential claims raised by the evidence. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (U.S. 2009). Accordingly, a present disability of interstitial lung disease has been established by the evidence.

A veteran's probability of asbestos exposure can be classified by his or her military occupational specialty (MOS). An MOS is classified as minimal, probable, or highly probable asbestos exposure.

The Veteran's MOS was operation specialist. Review of the record indicates that the Veteran was stationed aboard U.S.S. Forrest Sherman (DD 931). He reported being exposed to paint that they were grinding off the ship and during the sand blasting of the ship. He reported that when the Navy started to remove the asbestos from the ship, he and his shipmates were moved to barracks but still had to stand watch and do their duties on ship while asbestos was being removed. In addition, during the DRO hearing in June 2018, the Veteran testified that while working outside the ship grinding and needle gunning, he was exposed to dust from sandblasting the hull of the ship. He testified that he noticed shipyard workers wore protective clothing and wore respirators
 MOS was operation specialist. Review of the record indicates that the Veteran was stationed aboard U.S.S. Forrest Sherman (DD 931). He reported being exposed to paint that they were grinding off the ship and during the sand blasting of the ship. He reported that when the Navy started to remove the asbestos from the ship, he and his shipmates were moved to barracks but still had to stand watch and do their duties on ship while asbestos was being removed. In addition, during the DRO hearing in June 2018, the Veteran testified that while working outside the ship grinding and needle gunning, he was exposed to dust from sandblasting the hull of the ship. He testified that he noticed shipyard workers wore protective clothing and wore respirators, but he was not given any type of respiratory protection with the exception of a t-shirt wrapped around the nose and mouth. 

Based on this evidence, the Board of Veterans' Appeals (Board) finds that there is an approximate balance of positive and negative evidence regarding the Veteran's exposure to asbestos while in service and as such, exposure to asbestos is established. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id.

The June 2018 letter from Dr. A.M. reported that the Veteran's interstitial lung disease and pulmonary fibrosis was likely related to his asbestos exposure. While there are two medical opinions provided by the VA, in December 2017 and December 2018, the VA examiner noted in both of those medical opinions that exposure to asbestos was not conceded by the Regional Office. As such, the medical opinions provided by the VA in December 2017 and December 2018 are given less weight than the medical opinion provided by Dr. A.M. 

Having weighed the evidence of record, the Board finds that the evidence for and against the Veteran's claim is at the very least in approximate balance.

Accordingly, service connection for interstitial lung disease is granted.

 

 

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Merriam, Jeffrey

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.