Citation Nr: 18144285 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-21 960 DATE: October 25, 2018 ORDER Entitlement to service connection for asbestosis is granted. Entitlement to service connection for a thymoma is denied. FINDINGS OF FACT 1. The evidence is as least in equipoise as to whether asbestosis was caused by exposure to asbestos during active service. 2. The preponderance of the evidence is against finding that a thymoma was incurred in or is otherwise related to service, or to any exposures to asbestos or other toxic substances during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a respiratory disability have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a thymoma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted 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(a). In addition, disabilities diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection requires competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. M21 1, VBA Adjudication Procedure Manual M21 1, part IV, Subpart ii, Chapter 2, Section C (August 7, 2015). The M21 1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. M21 1, part IV, Subpart ii, Chapter 2, Section C, 2(b). The M21 1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21 1, part IV, Subpart ii, Chapter 2, Section C, 2(d). VA should consider whether service records demonstrate evidence of asbestos exposure during service, whether there was pre service, post service, occupational, or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. Mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question is whether disabling harm ensued as a result of any such asbestos exposure. The medical evidence must show not only a currently diagnosed disability, but also a nexus that is, a causal connection, between a current disability and exposure to asbestos in service. VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has established service connection for chronic obstructive pulmonary disease and emphysema. However, the Veteran has also been diagnosed with asbestosis and a thymoma. Therefore, the Board will consider service connection for asbestosis and thymoma. 1. Entitlement to service connection for asbestos. The Veteran contends that he is entitled to service connection asbestosis as a result of exposure to asbestos in service. The evidence shows that the Veteran served in the Navy as a Machinist Mate and retired in April 1994 with approximately 20 years of active service. His specialty in service was submarine repairman. That type of service has a likelihood of exposure to asbestos during that period of service. A November 2014 VA examination report determined that the Veteran had current diagnoses of emphysema and COPD, and lung cancer, and that he had been exposed to asbestos, among other toxic materials, during active service. The examiner opined that the Veteran’s emphysema and COPD were at least as likely as not related to exposure to toxic materials in service and the Veteran’s chronic heavy smoking. A March 2016 VA examination report diagnosed emphysema, chronic obstructive pulmonary disease, thymoma, and asbestosis. The examiner opined that the findings of pleural calcification seen on a chest CT scan were at least as likely as not due to asbestosis and the asbestosis was as likely as not due to exposure while in service. Accordingly, resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for asbestosis, due to asbestos exposure during service, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a thymoma. The Veteran contends that he is entitled to service connection for a thymoma as a result of his exposure to asbestos and other toxic materials in service. The Veteran’s service medical records do not contain complaints, treatment, or diagnosis for a thymoma. The evidence also does not show that the disease developed to a compensable degree within the specified time period after the Veteran’s release from service to qualify for the presumption of service connection. The Veteran was diagnosed with a thymoma in September 2012, many years after service. He underwent right wedge resection of a pulmonary nodule of the right lower lobe followed by median sternotomy and total thymectomy. The mass was identified as a thymoma type B1. A November 2014 VA examination report notes that the Veteran had a 40 pack year history of smoking. The examiner opined that the thymoma was not considered a pulmonary or lung malignancy and was less likely than not due to or related to exposure to asbestos, chemicals, lead, fiberglass, and other toxic materials during service. A March 2016 VA examination report concluded that, although the Veteran had been exposed to asbestos in service, the thymoma was less likely than not due to or related to asbestos exposure in service. The Veteran testified at an April 2018 Board hearing that he had surgery to remove a thymoma and believed it was due to exposure to asbestos and other toxic substances during service. However, as a lay person, the Veteran is not competent to opine on the etiology of thymoma, as its identification and cause requires medical expertise and training, which the Veteran, as a lay person, does not have. The Board finds that two VA examiners have found that the thymoma was less likely related to service or exposure to toxic substances, including asbestos, during service. The Veteran has not submitted any contrary competent evidence that supports a finding that the thymoma is related to service or any exposures during service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a thymoma. Therefore, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel