Citation Nr: 19183814 Decision Date: 11/05/19 Archive Date: 11/05/19 DOCKET NO. 17-07 289 DATE: November 5, 2019 ORDER Entitlement to service connection for a respiratory condition, diagnosed as chronic obstructive pulmonary disease (COPD) and lung cancer, is granted. FINDING OF FACT The Veteran’s respiratory condition, diagnosed as chronic obstructive pulmonary disease (COPD) and lung cancer, is etiologically related to asbestos exposure during active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory condition, diagnosed as COPD and lung cancer, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to September 1971. The Veteran appeals a July 2015 Rating Decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in September 2019. A transcript is of record. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. Nevertheless, the M21-1 (Developing Claims for SC for Asbestos-Related Diseases) does provide guidance. See M21-1, pt. IV, subpt. ii, § 1.I.3 (last accessed on October 9, 2018). With respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). The applicable section of the M21-1 notes a Veteran’s probability of asbestos exposure can be classified by military occupational specialty (MOS). If an MOS is listed as minimal, probable, or highly probable asbestos exposure should be conceded for the purposes of scheduling an examination. See M21-1, pt. IV, subpt. ii, § 1.I.3.d (last accessed on October 9, 2018). Importantly, many people with asbestos-related diseases have only recently come to medical attention because the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. See M21-1, pt. IV, subpt. ii, § 2.C.2.f (last accessed on October 9, 2018). In Overton v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons and bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision. 2018 U.S. App. Vet. Claims LEXIS 1251, at *13-14 (Sept. 19, 2018). In this particular case, because there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims, and use is beneficial to the Veteran, the Board finds the M21-1 reliable as to the second and third Shedden elements. The Veteran has a respiratory condition diagnosed as COPD and lung cancer. See January 2018 private treatment record. The Veteran credibly stated he had no respiratory condition prior to service, was a ship fitter and exposed to asbestos while working jobs with the machine shops, and put in fittings and scraped old insulation without a facemask or good ventilation. See September 2019 Board Hearing Tr. at 2-4. Furthermore, the August 1971 separation examination in the Service Treatment Records (STRs) notes abnormal findings, to include possible plural scarring, in an x-ray. The Veteran served aboard the U.S.S. Shenandoah in a maintenance related capacity. See DD-214. The Board finds the Veteran was exposed to asbestos during service. As to nexus, there are multiple positive nexus opinions of record. Dr. R.E. opined there is a likely relationship between the Veteran’s COPD and exposure to asbestos and chemicals during service. See January 2018 Dr. R.E. treatment record. Dr. R.E. also separately wrote it is likely the Veteran’s military exposure impacted the lungs and that such exposures are known to cause lung damage. See January 2017 Dr. R.E. treatment record. Dr. H.A. opined that negative x-rays cannot be used as evidence and it is possible to have a negative x-ray and a diagnosis. See February 2016 Dr. H.A. Letter. Dr. H.A. went on to state that it is possible the Veteran’s lung cancer is partially connected to asbestos exposure in service. The Board finds that there is persuasive evidence of record establishing a link between the Veteran’s respiratory conditions and toxic exposure in service. Accordingly, the Board finds that a grant of service connection is warranted for a respiratory condition, diagnosed as COPD and lung cancer. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate 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.