Citation Nr: 20019577 Decision Date: 03/16/20 Archive Date: 03/16/20 DOCKET NO. 14-33 840 DATE: March 16, 2020 ORDER New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for lung disorder, to include asbestosis and/or pleural plaque, as due to asbestos exposure, for substitution purposes. Entitlement to service connection for lung disorder, to include asbestosis and/or pleural plaque, as due to asbestos exposure, for substitution purposes, is granted. FINDINGS OF FACT 1. The evidence of record since the July 2003 rating decision does relate to an unestablished fact necessary to substantiate the claim of service connection for lung disorder and does raise a reasonable possibility of substantiating the claim. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran was exposed to asbestos during active duty service; and his lung disorder is etiologically related to such exposure. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for lung disorder, to include asbestosis and/or pleural plaque, as due to asbestos exposure, for substitution purposes. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for lung disorder, to include asbestosis and/or pleural plaque, as due to asbestos exposure, for substitution purposes, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to July 1966; and passed away in September 2014. The appellant substitutes the Veteran as his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In October 2018, the Board of Veterans’ Appeals (Board) issued a decision denying the Veteran’s claim to reopen the matter of entitlement to service connection for a lung disorder. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), resulting in a September 2019 Joint Motion for Remand (JMR), which vacated and remanded the October 2018 Board decision for re-adjudication consistent with its decision. 1. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for lung disorder, to include asbestosis and/or pleural plaque, as due to asbestos exposure. In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 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, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received to adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, then the Board’s analysis must end, and what was previously determined by the RO in that regard becomes irrelevant. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). For VA purposes, “new” evidence is existing evidence not previously submitted to agency decision makers; and “material” evidence is existing 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 of record at the time of the last prior denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In Shade v Shinseki, 24 Vet. App. 110 (2010), the Court indicated that new and material evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers the duty to assist by providing a medical opinion. The Court also held that 38 C.F.R. § 3.156 (a) “must be read as creating a low threshold,” and that “the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening.” Shade at 117. Furthermore, the Court noted that “[t]he Board’s analysis of the issue of reopening must be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision.” Id. at 121. The Veteran was originally denied service connection for lung disorder in the July 2003 rating decision, which he timely appealed. A Statement of the Case (SOC) was issued in January 2005; however, the Veteran did not perfect his appeal. Therefore, the July 2003 rating decision constitutes a final decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.302, 20.1103. Subsequently, in August 2012, the Veteran filed a claim to reopen. Although the RO reopened the Veteran’s claim, the RO ultimately denied the service connection claim on the merits in the August 2013 rating decision. The August 2013 rating decision represents the most recent decision regarding the issue of entitlement to service connection for lung disorder. The evidence of record at the time of the July 2003 rating decision included the Veteran’s service treatment records (STRs), which are silent for any complaints, treatment, symptoms, or diagnosis of his lung disorder and/or exposure to asbestos; a positive private medical opinion regarding in-service exposure to asbestos; a VA examination and addendum opinion regarding the nature and etiology of the claimed condition, and concession of in-service exposure; VA and private treatment records reflecting diagnoses of asbestos and pleural plaque; and lay statements from the Veteran noting the specifics of his contended asbestos exposure during active duty. In its decision, the RO noted that in-service asbestos exposure has not been established, and denied the Veteran’s claim due to a lack of nexus. Since then, the VA received a letter from the Veteran’s former employer noting that asbestos has not been used during his post-service employment at a car repair shop; additional VA medical treatment records reflecting treatment and noted history of asbestos exposure; lay statements from the Veteran regarding his in-service exposure; and a positive VA medical opinion linking the Veteran’s lung disorder to his conceded in-service asbestos exposure. As stated above, the Board must consider the old and new evidence of record, as a whole, in addressing whether reopening of the claim should be allowed. Therefore, given the low threshold, the Board finds that some of the additional evidence of record is both new and material, as it raises a reasonable possibility of substantiating the claim for entitlement to service connection for lung disorder. Accordingly, the claim is reopened. 2. Entitlement to service connection for lung disorder, to include asbestosis and/or pleural plaque, as due to asbestos exposure. The appellant contends that the Veteran’s lung disorder, to include asbestosis and/or pleural plaque, was directly related to his exposure to asbestos while on active duty in the Navy. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Certain “chronic diseases” may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). The medical evidence of record includes findings that the Veteran had diagnoses of the lung disorders, asbestosis and pleural plaque. Additionally, the Board notes that the Veteran competently and credibly stated that he was exposed to asbestos while serving on active duty onboard the USS Prairie, where he worked in the storeroom as a supply clerk and stored asbestos materials for repairs; and spent 3 months in dry dock in California working in areas of asbestos lagging being replaced without protective mask or gloves. Furthermore, a review of the record reveals that a VA examiner and private medical physician both conceded the Veteran’s in-service exposure to asbestos. Therefore, as the Board notes that there is no persuasive evidence to the contrary, the Board will resolve all reasonable doubt in favor of the Veteran, and further concede to the Veteran’s in-service asbestos exposure. In July 2002, the Veteran submitted a private medical opinion from his treating physician, who noted that a March 2002 chest X-ray revealed evidence of pulmonary asbestosis. The physician opined that it is “likely that [the Veteran] did have asbestos exposure while in service,” as the Veteran “gives a history of being exposed to asbestos in shipyards.” See Medial Treatment Record – Non-Government Facility, September 2012. In an April 2003 VA examination, the examiner diagnosed the Veteran with pleural asbestosis, and conceded to the Veteran’s exposure to asbestos while on active duty in a California shipyard for an extended period. The examiner opined that the Veteran’s condition is as likely as not related to his service, as medically, there is a pathophysiological relationship. Additionally, an addendum opinion was attached, that reiterated the examiner’s positive opinion that the Veteran’s asbestosis condition is related to his service; rationalizing more in depth, that “[m]edically, there is pathophysiological relationship between his exposure to asbestosis particles in 1963 onboard the ship to his current diagnosis of asbestosis and there is evidence of medical record explaining relationship for both of above reasons.” See VA Examination, April 2003. In October 2013, a VA medical opinion was provided, which noted the Veteran’s diagnosis of asbestosis with obvious calcified pleural plaques; and further noted concession of the Veteran’s exposure to asbestos while in the Navy. The physician opined that “[i]n my opinion the link between his asbestosis exposure and his obvious asbestosis is about as transparent as occupational exposures gets. For reasons unclear to me he has to date been unable to get compensation for his asbestosis.” See Medical Treatment Record – Government Facility, October 2013. The physician rationalized that the Veteran worked on a ship that serviced Destroyers while on active duty in the Navy, as well as, worked at the California shipyards where asbestos was present; adding that the calcified pleural plaques seen on chest radiographs are clinically diagnostic of asbestosis in Navy veterans, with nothing else causing these plaques in Navy veterans besides exposure to asbestos. Therefore, the physician concluded that “[f]rom a medical perspective the link between the patient’s occupational exposure and disease is a ‘slam dunk’ cause and effect diagnosis” and “[t]o a career military physician, the causality of asbestos exposure in the Navy and disease manifested by calcified pleural plaques is as close to a certainty as anything gets in the field of medicine.” Id. Based on the above, the Board finds that the probative evidence of record is in support of a finding that the Veteran’s lung disorder was etiologically related to his active duty service. Therefore, resolving all reasonable doubt in favor of the appellant, service connection for the Veteran’s lung disorder, to include asbestosis and/or pleural plaque, as due to asbestos exposure is warranted; and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107 and 38 C.F.R. § 3.102. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.