Citation Nr: 18140540 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 14-28 701A DATE: October 3, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in August 2011 and the death certificate reflected that the immediate cause of death was adenocarcinoma of the lung. 2. The Veteran’s fatal adenocarcinoma of the lung was a result of asbestos exposure during the performance of his duties as a Navy fireman, and is therefore related to his active service. CONCLUSIONS OF LAW 1. Adenocarcinoma of the lung was incurred in active wartime service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1943 to January 1945. The Veteran died in August 2011, and the appellant is the Veteran’s surviving spouse. Service Connection for a Lung Disability The Veteran’s death certificate reflects adenocarcinoma of the lung as the cause of death. See August 2011 death certificate. The Veteran was not service-connected for lung cancer at the time of his death. The appellant contends that the Veteran’s lung cancer was the result of exposure to asbestos during service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. The M21-1, however, provides guidelines for developing claims based on alleged asbestos exposure. See generally, M21-1, IV.ii.1.I.3 and IV.ii.2.C.2. The M21-1 provides a table describing the probability of asbestos exposure based on Navy military occupational specialty (MOS). In this case, the Veteran’s military personnel records reflect that the Veteran was a fireman in the Navy. See January 1945 military personnel record. Regarding firemen, the M21-1 provides that asbestos exposure was “highly probable.” M21-1, IV.ii.1.I.3.d. Therefore, the Board will concede asbestos exposure for purposes of this decision. According to the appellant, the Veteran worked for the U.S. Postal Service as a mail sorter prior to service, and then worked as a teacher and school principal following service. There is no evidence that the Veteran was exposed to asbestos before or after his military service. As such, the remaining issue is whether there exists a nexus between the Veteran’s lung disability and his in-service asbestos exposure. February 2010 private treatment records reflect that diagnostic testing revealed scattered focal areas or abnormal activity in the pretracheal, right pericardial and right azygoesophageal recess region, which were moderately intense and may have represented secondary neoplasia or atypical inflammatory process, suggesting prior asbestos exposure. A June 2014 VA opinion provided a negative nexus opinion, with a rationale that the Veteran did not have the clinical signs or symptoms suggestive of asbestosis. The physician found that the Veteran had non-small cell lung cancer and not mesothelioma. The opinion did not address the private treatment records. A Veterans Health Administration (VHA) opinion was obtained in June 2018 at the request of the Board. Dr. D.M. provided a detailed opinion that the Board finds to be highly probative. The opinion stated that, “data exist that [the Veteran] had pulmonary findings consistent with asbestos exposure.” The physician opined that, “asbestos exposure is a risk factor for lung adenocarcinoma even in patients who have also smoked,” and “since the [Veteran] had documented exposure to asbestos while he was in the military and had radiographic findings consistent with this prior exposure…it is at least as likely as not that the in-service asbestos exposure was at least a contributory cause of his death.” Upon review, the Board finds the June 2018 opinion to be the most probative evidence of record. The opinion included sufficient rationale and explanation when determining that the Veteran’s lung disability was likely related to asbestos exposure. As such, the Board finds that a lung disability, to include adenocarcinoma of the lung, is related to the Veteran’s active service. Accordingly, the Board concludes that a lung disability was incurred in active wartime service and, to this extent, the appellant’s claim is therefore granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel