
http://www.va.gov/vetapp16/Files4/1634333.txt




Citation Nr: 1634333	
Decision Date: 08/31/16    Archive Date: 09/06/16

DOCKET NO.  09-09 110	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an effective date prior to June 6, 2002, for the grant of service connection for asbestosis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from October 1969 to August 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, which granted service connection for asbestosis and assigned an effective date of November 26, 2007.

Following a November 2012 central office hearing, the Board assigned an effective date of June 6, 2002 in its March 2014 decision, which was informed in part by the June 2013 opinion of a medical specialist from the Veterans Health Administration (VHA).  Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In an April 2016 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the March 2014 decision as to the denial of an effective date prior to June 6, 2002.  The Court granted the JMR in an April 2016 Order.  The issue returns to the Board for further consideration.

The Board observes that the issue of entitlement to service connection for a heart disability, claimed as cardiomyopathy, remains in remand status and is not before the Board at this time.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's claim for service connection for asbestosis was received by VA on October 18, 2001.

2.  The evidence is in equipoise as to whether the Veteran's asbestosis manifested prior to the date of claim.


CONCLUSION OF LAW

The criteria for an effective date of October 18, 2001, but no earlier, for the grant of entitlement to service connection for asbestosis have been met.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b), 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.400 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends in his September 2010 notice of disagreement that the date of his claim for service connection for asbestosis is October 18, 2001.

At his November 2012 central office hearing, the Veteran testified that an effective date of October 18, 2001 for the grant of service connection for asbestosis would satisfy his appeal.  See transcript, p. 6.

The effective date of an award of benefits based on an original claim, a claim after final allowance or a claim for an increase is either (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  Claim is defined in the VA regulations as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).  An informal claim is any communication or action indicating intent to apply for one or more benefits.  38 C.F.R. § 3.155(a).

The effective date generally can be no earlier than the facts found, including the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See 38 C.F.R. § 3.400; see also DeLisio v. Shinseki, 25 Vet. App. 45, 51-52 (2011).

The Board agrees that the Veteran's October 2001 claim document, when liberally construed, constitutes a claim for service connection for asbestosis.  EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (holding that VA must liberally construe all documents filed by a claimant).  The language on the VA Form 21-526 indicates that the Veteran was "claiming disability due to exposure to asbestos, first sign of manifestation in [August 1996]," and then makes reference to "asbestosis dilated (congestive) cardiomyopathy and CHF [congestive heart failure]."  Thus, ultimately, the first communication from the Veteran with respect to a claim for service connection for asbestosis was received by VA on October 18, 2001.  There is no other document which could be considered a claim prior to that date.  Therefore, the Board finds that October 18, 2001, is the date of the Veteran's claim for service connection for asbestosis.

The Board further finds that the evidence for and against a finding of asbestosis prior to the October 18, 2001 date of claim is in equipoise.  Specifically, the June 2013 VHA medical specialist found that:

There may be a small contribution of lung restriction due to the described pleural thickening....If the pleural thickening is from asbestos it would restrict the movement of the lung to some extent....Nevertheless it probably contributes in some way to his sense of shortness of breath at least during exertion....In summary, the patient has documented evidence of probable pleural manifestation of asbestos exposure as early as 2002.

By contrast, a May 2016 VA examiner reviewed the September 17, 1996 study cited by the VHA medical specialist, and opined that "minimal pleural thickening is noted on the right hem thorax."  This is consistent with the findings of Dr. Szeinuk, cited in the April 2016 JMR, of right pleural thickening in the 1996 and 1997 chest films.  As there is competent and credible medical evidence both for and against pleural thickening prior to the October 18, 2001 date of claim for service connection for asbestosis, the Board finds that service connection is warranted as of October 18, 2001.  38 C.F.R. § 3.400.

In accordance with the Veteran's statement at his November 2012 central office hearing testimony, the effective date of October 18, 2001 constitutes a full grant of the benefit sought on appeal.  See transcript, p. 6.


ORDER

Subject to the law and regulations governing payment of monetary benefits, an effective date of October 18, 2001, and no earlier, for service connection for asbestosis is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs


