Citation Nr: A19001807 Decision Date: 10/08/19 Archive Date: 10/07/19 DOCKET NO. 190219-1743 DATE: October 8, 2019 ORDER Service connection for peritoneal mesothelioma is granted. FINDINGS OF FACT 1. The Veteran has been diagnosed with malignant peritoneal mesothelioma. 2. The Veteran served as an aircraft maintenance officer. 3. The Veteran and witnesses have provided competent and credible testimony that during active service he inspected aircraft parts containing asbestos without wearing protective equipment. 4. The probative evidence supports a link between the Veteran’s peritoneal mesothelioma and his in-service asbestos exposure. CONCLUSION OF LAW The criteria for service connection for peritoneal mesothelioma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1984 to June 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran elected the modernized review system for the claim on appeal. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Moderation Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the January 2019 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed to the Board, and selected direct review. (February 2019 VA 21-4138; February 20198 VA Form 10182) Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Peritoneal Mesothelioma The Veteran claims service connection for peritoneal mesothelioma due to in-service asbestos exposure. For the following reasons, the Board finds that service connection is established. The evidence supports a finding of in-service asbestos exposure. The Veteran’s military occupational specialties (MOS’s) included service as an Aircraft Maintenance Officer. According to the VA Adjudication Procedures Manual (M21-1), this MOS entails a minimal probability of exposure. M21-1,IV.ii.I.3.d. The M21-1 instructs that when there is a minimal or higher probability of asbestos exposure associated with a given MOS, asbestos exposure will be established for purposes of scheduling an examination. IV.ii.1I.3.f. The M21-1 is not binding on the Board. Overton v. Wilkie, 30 Vet. App. 257, 263 (2018); Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102, 1108 (Fed. Cir. 2017); see 38 C.F.R. § 19.5. However, “the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases,” and “must make its own determination before it chooses to rely on an M2-1 provision as a factor to support its decision.” Overton, 30 Vet. App. at 264. As these provisions of the M21-1 are favorable to the Veteran, and as the competent and credible witness statements discussed below show in-service asbestos exposure, the Board accepts these provisions of the M21-1 as supporting asbestos exposure. There is also more direct evidence supporting in-service asbestos exposure. A March 1985 service treatment record reflects a finding that the Veteran did not require referral to the Navy Asbestos Medical Surveillance Program based on a preliminary survey. While he did not require referral, the fact that he was considered for referral to that program indicates that his service duties potentially involved asbestos exposure. Most probative are sworn declarations by witnesses who served with the Veteran attesting to his asbestos exposure. A February 2015 declaration by C.G., an individual who served with the Veteran, reflects that she worked with the Veteran as an Aviation Storekeeper Material Control Supervisor, and routinely received materials for use on aircraft marked “asbestos” on the packaging. She stated that the Veteran regularly closely observed maintenance evolutions involving aircraft parts containing asbestos in the hangar and on the flight line. A February 2015 declaration by J.K. states that he served as the Quality Assurance Chief, and was responsible for maintenance safety programs, including working with hazardous materials such as asbestos. That role included ensuring that maintenance personnel who had the possibility of exposure to asbestos were trained in the dangers associated with it, and wore protective equipment such as respirators. He stated that he observed the Veteran on several occasions closely observing maintenance evolutions involving components that contained asbestos. As the Veteran, in his role as an officer, was behind the personnel doing the work, he did not wear a respirator, according to J.K.’s statement. Because these witnesses served with the Veteran and had specialties qualifying them to determine that the types of equipment he inspected contained asbestos, their sworn declarations constitute competent, credible, and probative evidence of in-service asbestos exposure. Accordingly, the Veteran’s MOS, his consideration for referral to a Navy asbestos medical surveillance program, and the sworn witness statements attesting to his likely asbestos exposure from inspecting equipment in his role as a maintenance officer establish in-service asbestos exposure, resolving any reasonable doubt in favor of the Veteran. The evidence does not show post-service asbestos exposure. The Board notes that the Veteran brought a lawsuit against certain companies based on in-service asbestos exposure, and that the complaint reflects that he was also secondarily exposed to asbestos-containing products prior to active service through a remodelling job performed by his family in 1968. For purposes of this decision, the Board resolves reasonable doubt in favor of the Veteran by concluding that his mesothelioma is linked to in-service asbestos exposure, rather than any exposure that may have occurred in 1968. The private treatment records show that the Veteran was diagnosed with peritoneal mesothelioma in 2013, with potential symptoms of that disease occurring a few years prior to the diagnosis. See, e.g. August 2013 Private Treatment Record. The competent and probative evidence establishes a link between the Veteran’s mesothelioma and his in-service asbestos exposure. A July 2016 letter from the Veteran’s primary oncologist states that the oncologist had cared for the Veteran since March 2013, and that asbestos exposure is the only known case of mesothelioma. The oncologist concluded that therefore the Veteran’s peritoneal mesothelioma was caused by his exposure to asbestos during active service. As this opinion represents the conclusion of a medical professional specializing in cancer, and as its rationale logically supports the conclusion reached, it constitutes probative evidence that the Veteran’s mesothelioma is linked to in-service asbestos exposure. The Board notes that the M21-1 provides that specific diseases that may result from asbestos exposure include mesothelioma. IV.ii.2.C.2.b. It also states that disease-causing exposure to asbestos may be brief and/or indirect. IV.ii.2.C.2.c. As these provisions are favorable to the Veteran, and consistent with the conclusion of his treating oncologist, the Board finds they lend further support to the claim. The December 2016 VA medical opinion does not outweigh the opinion from the Veteran’s private treating oncologist. In the December 2016 opinion, the VA physician concluded that the Veteran’s mesothelioma was less likely than not related to his in-service asbestos exposure. Part of the examiner’s rationale was that in-service asbestos exposure was not established because the service treatment records were negative for such exposure. As that is contrary to the Board’s finding of in-service asbestos exposure discussed above, the examiner’s incorrect factual premise undercuts the probative value of the conclusion reached. The examiner also differentiated between types of asbestos, finding that the type of asbestos fiber generally used in the United States and worldwide, chrysotile, is not the type that is linked to malignant peritoneal mesothelioma (MPM), as opposed to pleural mesothelioma. The examiner also stated that MPM requires a higher cumulative exposure to asbestos than pleural mesothelioma. However, the Veteran’s treating oncologist did not find a distinction between types or degree of asbestos exposure significant; rather, the oncologist stated that asbestos exposure is the only known cause of mesothelioma. The M21-1 also notes that brief or indirect exposure to asbestos can be sufficient to produce asbestos-related disease. The Veteran also submitted an October 2018 letter by A. Frank, MD., Ph.D., who is both a physician and a scientist who obtained his Ph.D. studying the effects of asbestos on tissue, and who has been engaged in asbestos-related research for many years. In the letter, Dr. Frank reviewed the December 2016 VA opinion, and responded that the scientific literature does not support its conclusion that chrysotile is less carcinogenic than other types of asbestos, or that peritoneal mesothelioma requires a higher cumulative dose of exposure than pleural mesothelioma. The letter reflects a detailed review of the record, and concludes that the Veteran’s peritoneal mesothelioma is the result of his in-service asbestos exposure. Accordingly, the Board finds the evidence at least in equipoise as to whether the Veteran’s in-service asbestos exposure is linked to his mesothelioma. Consequently, the criteria for service connection are satisfied. See Holton, 557 F.3d at 1366; Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.