Citation Nr: 18160444
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-05 751
DATE:	December 26, 2018
ORDER
The petition to reopen the claim of entitlement to service connection for a lung condition is granted.
Entitlement to service connection for asbestos-related pleural plaques is granted.
FINDINGS OF FACT
1. A December 2008 rating decision denied the Veteran’s claim of service connection for asbestosis. The Veteran did not appeal.
2. The additional evidence received since the December 2008 rating decision is new and material.
3. Resolving all doubt in the Veteran’s favor, his asbestos-related pleural plaques are etiologically related to his active duty.
CONCLUSIONS OF LAW
1. The December 2008 rating decision denying the Veteran’s claim of service connection for a lung disorder is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2018). 
2. New and material evidence has been received to reopen the claim of service connection for a lung disorder. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2018).
3. The criteria for entitlement to service connection for asbestos-related pleural plaques have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty from September 1966 to September 1968.
New & Material Evidence
A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. 
A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 
Here, the Veteran initially filed his claim for service connection to asbestosis in May 2008, which was denied in December 2008 rating decision. The Regional Office (RO) concluded that while there was a high probability that the Veteran was exposed to asbestos due to his duties in service as a pipefitter, the evidence of record failed to show that he had been clinically diagnosed with asbestosis. The RO notified the Veteran of the denial in December 2008. Since the Veteran did not appeal the denial, the December 2008 rating decision became final. 38 C.F.R. § 3.156(b).
A review of the record shows that new and material evidence has been received since the December 2008 rating decision; thereby substantiating the Veteran’s petition to reopen the claim for service connection for a lung disorder. In reaching this conclusion, the Board observes that the new evidence of record includes: private medical treatment records showing that the Veteran had pleural plaques consistent with asbestosis; a March 2012 VA examination report reflecting a diagnosis of interstitial lung disease; and an August 2012 VA examination report indicating that the Veteran had asbestos-related pleural plaques. This evidence is of such significance that it raises a reasonable possibility of substantiating the claim for service connection. The documentation addresses the reason of the previous denial as it pertains to a diagnosis of a current lung disorder. This evidence is presumed credible for the purpose of determining whether it is material. As new and material evidence has been received, the claim of entitlement to service connection for a lung disorder is reopened.
Service Connection
Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2012); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or is legitimately questionable. 38 C.F.R. § 3.303(b) (2018). This alternative means of linking the currently-claimed condition to service is only available if the condition being claimed is one of those specifically identified in 38 C.F.R. § 3.309(a) as chronic, per se. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, pleural plaques are not listed as such a chronic condition under 38 C.F.R. § 3.309(a) (2018). See id.
Turning to the merits of the Veteran’s claim, it is undisputed that the Veteran had a high probability of exposure to asbestos during service due his duties as a pipefitter.  However, his service treatment records are negative for any symptoms, complaints, treatment or diagnosis of a lung disorder.  
Post service, the record includes a September 2011 CT scan of the Veteran’s chest showing calcified pleural plaques in a distribution that was pathognomic for asbestos exposure.  A March 2012 VA examiner diagnosed the Veteran with interstitial lung disease, specifically asbestosis, which the Board infers was based on the September 2011 CT scan.  Thereafter, an August 2012 VA examiner diagnosed the Veteran with asbestos-related pleural plaques, but opined that it was less likely than not related to the Veteran’s active duty because the Veteran did not have a detectable lung disease.  He observed that the lack of CT findings suggestive of interstitial pulmonary fibrosis and a recently conducted pulmonary function testing was completely normal.  At the same time, the examiner reiterated that the Veteran did have asbestos-related pleural plaques, but noted that they were not expected to cause any disability. 
Although the August 2012 VA examiner concluded that the Veteran did not have a current diagnosis of lung disease, there is no dispute as to the presence of asbestos-related pleural plaques.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  It is also undisputed that the Veteran was exposed to asbestos while on active duty. Therefore, resolving all doubt in the Veteran’s favor, entitlement to service connection for asbestos-related pleural plaques is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
 
P.M. DILORENZO 
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Sangster, Counsel 
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