Citation Nr: 1753619 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-08 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for lung condition, including right lung cancer, due to asbestos exposure. 2. Entitlement to service connection for right lung cancer disability due to asbestos exposure. ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1945. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's application to reopen his claim for service connection for lung condition, including right lung cancer, due to asbestos exposure. However, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). During the pendency of his claim, the Veteran died in December 2015. The Board notes that the appellant, widow of the Veteran, submitted an application for Indemnity Compensation (DIC), death pension, and accrued benefits by a surviving spouse in February 2016, however, she indicated she was claiming only death pension benefits. In a June 2016 notification letter, the RO granted her claim for survivor's pension with aid and attendance allowance, effective December 2015 (the receipt date of the intent to file a claim). The letter also informed the widow that claims for accrued benefits and DIC were denied. She did not appeal those denials and they thus became final. In light of the decision below, however, the Board notes that the appellant is not precluded from filing an application to reopen the claim for DIC based on service connection for the cause of the Veteran's death. In a November 2017 notification letter, the RO informed the appellant that she was substituted as the claimant in this case. See 38 U.S.C. § 5121A (2012). Therefore, as the appellant has been substituted for the Veteran, the claim of entitlement to service connection for lung condition, to include right lung cancer, due to asbestos exposure is still before the Board. See Reliford v. McDonald, 27 Vet. App. 297, 302 (2015) (38 U.S.C. § 5121 provides "those eligible for accrued benefits with the opportunity to procedurally be substituted for deceased claimants in pending claims, enabling the surviving accrued-benefits beneficiary to proceed in the place of the deceased claimant to the completion of the original claim"). FINDINGS OF FACT 1. The December 1999 Board decision denied the claim for entitlement to service connection for a lung condition, including right lung cancer, due to asbestos exposure. The Veteran did not appeal or seek reconsideration of this decision. 2. In unappealed March 2008 and July 2008 rating decisions, and an October 2008 notification letter, the RO denied the Veteran's application to reopen his claim on the basis that new and material evidence was not submitted. The Veteran did not appeal these denials, and new and material evidence was not submitted during the one year appeal period. 3. Evidence received since these denials relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for lung condition, to include right lung cancer, due to asbestos exposure and raises a reasonable possibility of substantiating the claim. 4. The Veteran's right lung cancer was due to his in-service asbestos exposure. CONCLUSIONS OF LAW 1. The December 1999 Board decision that denied the claim for entitlement to service connection for a lung condition, including right lung cancer, due to asbestos exposure, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1100(a), 20.1104 (2017). 2. The March 2008 and July 2008 rating decisions, and the October 2008 notification letter, which denied the Veteran's application to reopen his claim on the basis that new and material evidence was not submitted, were final. 8 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 3. Evidence received since these denials relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for lung condition, including right lung cancer, due to asbestos exposure, and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for entitlement to service connection for right lung cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Application to Reopen Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that 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 that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103 (a), 7104(a); 38 C.F.R. § 20.1100 (a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran originally filed for VA disability compensation for right lung cancer due to asbestos exposure in February 1993. In a June 1993 rating decision, the RO denied service connection for lung cancer based on a lack of an active malignant process or residuals in the lung status post right upper lobectomy for bronchogenic carcinoma. The Veteran timely appealed. The Board denied the claim in a December 1999 decision based on the lack of a nexus between his lung condition and service. The Board decision subsumed the RO decision, 38 C.F.R. § 20.1104, and became final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100(a). As the Veteran did not appeal the decision, and reconsideration neither sought nor granted, the Board decision became final. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). The Veteran filed his application to reopen his claim for service connection for a right lung cancer due to asbestosis in July 2007. In a March 2008 rating decision, the RO denied the Veteran's application to reopen his claim on the basis that new and material evidence was not submitted. The Veteran requested reconsideration of the claim in May 2008 and the RO continued to deny his application to reopen his claim in a July 2008 rating decision. The Veteran submitted medical evidence in September 2008 and the RO determined in an October 2008 notification letter that the evidence was duplicative and already considered in the July 2008 rating decision. The Veteran did not file a notice of disagreement within the one year appeal period. In addition, the Veteran did not submit new and material evidence within the one year appeal period, and no additional service records have been received at any time pertinent to the previously disallowed claim for service connection for a lung condition, warranting re-adjudication of the claim (see 38 C.F.R. § 3.156(c)). The denials, therefore, became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed an application to reopen his claim for service connection for asbestos exposure in November 2012. The RO denied the Veteran's application to reopen his claim for service connection for right lung cancer due to asbestos exposure based on the absence of new and material evidence in a March 2013 rating decision. The Veteran timely appealed. The Board finds that new and material evidence sufficient to reopen the claim of service connection for a lung condition, to include right lung cancer due to asbestos exposure, has been received. Specifically, since the May and July 2008 rating decisions, as well as the October 2008 notification letter, the Veteran submitted private treatment records showing treatment related to the lungs, and lay statements attesting to the presence of lung problems since discharge from service. This evidence was sufficient to trigger VA's duty to provide the Veteran a VA medical examination and is thus considered to be new and material evidence. The Board finds that this evidence, which was not previously before the RO, raises a reasonable possibility of substantiating the claim and it also triggered VA's duty to provide the Veteran with a medical examination. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (in determining whether the low threshold for reopening is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement). Accordingly, the claim of service connection for a lung condition, to include right lung cancer, due to asbestos exposure, is reopened with the submission of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). II. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As noted above, unfortunately, the Veteran died during the pendency of this appeal. According to his certificate of death, he passed in December 2015. It appears the primary cause of death was congestive heart failure and the secondary cause was lung cancer, secondary to asbestosis. The Veteran asserted that his lung condition was due to his in-service asbestos exposure as an Able Seaman. The Board finds that the Veteran was exposed to asbestos during his service. The Veteran's DD-214 reflects the Veteran was a merchant marine. It also reflects he served aboard the William Johnson, the Charles J. Folger, and the William Loring during World War II. The United States Department of Transportation indicated that there was no specific information concerning the use of asbestos on the ships that the Veteran served on, but that it was true that asbestos was widely used in vessels of the World War II era, as insulation was used around piping systems and boilers. It also notes the routine duties of an Able Seaman during World War II would have included standing navigation, watches as helmsman and lookout, and a very wide variety of maintenance duties including chipping, painting, and repair to nearly any of the ship's equipment or systems (including those with asbestos components, if they were present). The Board notes that the Veteran submitted certificates of discharge showing that he was a civilian member of the Merchant Marne from August 1945 to November 1948. Upon VA examination in March 1993, the Veteran stated that he did a lot of paint scraping and maintenance as a merchant marine between 1942 and 1949, with fairly heavy exposure to dust and probably asbestos. He reported having had a chronic cough for years prior to the diagnosis of lung cancer in 1991. He indicated that he had a history of smoking cigarettes in the past, but he had quit twenty-five years earlier. Examination showed scattered coarse rales bilaterally with deep inspiration. Chest x-rays showed status post right thoracotomy for partial pulmonary resection with no acute disease. Pulmonary function tests showed mild obstruction and somewhat reduced ventilatory capacity. The examiner indicated that there was no active malignant process and no evidence of recurrence of the cancer. Diagnoses were post-operative status, right upper lobectomy for bronchogenic carcinoma, suspected chronic obstructive pulmonary disease (COPD), and history of asbestos exposure. A June 1994 medical letter from a private physician, Dr. J, notes the Veteran's history of lung cancer and surgery, and that he was hospitalized in February 1994 for COPD and acute pulmonary infection. Dr. J indicated that the Veteran had a previous history of cigarette smoking and a history of exposure to asbestos. He indicated that the extent of asbestosis was not known, but there was a known relationship between lung cancer and asbestos exposure, especially when combined with cigarette smoking. Dr. J concluded that the Veteran's history of asbestos exposure could have contributed to the subsequent development of cancer. An August 1995 opinion from a private physician, Dr. G, notes the Veteran's exposure history was positive for asbestos during his time in the Merchant Marine as a third mate for seven years from 1943 to 1950. He reported exposure to asbestos insulation around pipes and steam boilers. Dr. G also notes that he had quit smoking cigarettes fifteen years earlier. Physical examination showed that his lungs were clear, and pulmonary function tests showed decreased vital capacity and some evidence of obstruction. Chest x-rays showed the prior lung surgery on the right side with removal of the right middle lobe. He opined that the x-rays also showed evidence of pleural and parenchymal asbestos disease and concluded that the Veteran had parenchymal and pleural asbestos disease, and the lung cancer in 1991 was most certainly related to his asbestos exposure. It was noted that asbestos is a known carcinogen and when combined with the carcinogens in tobacco smoke, it often produces lung cancer, pulmonary mesothelioma, abdominal mesothelioma, and other tumors. An August 2007 private treatment record provided an active diagnosis of malignant neoplasm of bronchus and lung, not otherwise specified, COPD, and chronic bronchitis. A November 2007 private medical opinion from a private pulmonary physician, Dr. D, states the Veteran was diagnosed with lung carcinoma in 1999 and that he underwent resection of the right upper lobe and that the Veteran was a merchant marine from 1942 to 1949 working on the ship yards, and had heavy exposure to asbestos products during that time. The physician opined it is highly suspected that this asbestos exposure contributed to his diagnosis of lung carcinoma. Thus, the only medical opinions of record are the private medical opinions submitted by the Veteran from his private treating clinicians. Although it appears the Veteran may have been exposed to asbestos after service when he was a civilian merchant marine, all three private physician provides a rationale that the Veteran's in-service exposure to asbestos starting from 1943 caused his subsequent lung cancer. The clinicians also treated the Veteran, and thus, were fully informed of the Veteran's medical history and his contentions in providing the positive opinions. Therefore, these positive nexus opinions, collectively, indicate that the Veteran's lung cancer was due to his in-service exposure to asbestos, and are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). See also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, there is no contrary medical opinion in the evidence of record. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's right lung cancer is related to his in-service asbestos exposure. As discussed above, the Veteran's MOS was consistent with in-service asbestos exposure and there is no evidence to rebut that he was exposed in service. Additionally, multiple competent physicians opined that the Veteran had right lung cancer that was related to his in-service asbestos exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for right lung cancer is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right lung cancer is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs