Citation Nr: 21000647 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-18 960 DATE: January 5, 2021 ORDER Entitlement to service connection for cancer of the rectum, as due to in service asbestos exposure, is granted. FINDING OF FACT The Veteran’s cancer of the rectum is related to in-service asbestos exposure. CONCLUSION OF LAW The criteria for service connection for cancer of the rectum, as due to in-service asbestos exposure, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 through September 2001. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2020 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board as to the issue on appeal. Per a subsequent May 2020 letter from the Veteran’s representative, the Veteran asked to withdraw the hearing request. As such, the Board finds there is no hearing request pending at this time as the previous request has been withdrawn. 38 C.F.R. § 20.702(e) (2018). The Board has limited the discussion below to the relevant evidence required to support is finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545 552 (2008). Service Connection for Cancer of the Rectum The Veteran contends that he is entitled to service connection for rectal cancer due to in-service asbestos exposure while aboard the USS Orion. The Board finds that the Veteran is entitled to service connection because of his current disability, in-service exposure, and the positive nexus opinions provided during the appeal period. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a causal connection or “nexus” between the claimed in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). The Veteran served aboard the USS Orion for two periods of time, working in the supply department. According to the Veteran’s lay statements, there was asbestos all over the pipes in the storeroom, in repair parts handled by the Veteran personally, and in his sleeping quarters. The Veteran states he and his peers were constantly handling, sweeping, and repairing materials that contained asbestos. After his service on the USS Orion, he worked in a shipyard where many parts contained asbestos in the paint. The statements provided by the Veteran are consistent with his position description on the DD-214, and with reports of asbestos use in ships commissioned during World War II. See Gowen v. Derwinski, 3 Vet. App. 286, 288-89 (1992) (veteran competent to testify as to facts of his asbestos exposure but not as to the medical results of such exposure). The Board finds the Veteran both competent and credible in reporting his in-service exposure to asbestos. Unfortunately, the Veteran’s service treatment records cannot be located. Prior searches completed for previous claims have consistently been unable to find these records, and they were not able to be consulted for this case. Therefore, there is no medical evidence to refute or support the Veteran’s claim of in-service asbestos exposure. When the Veteran filed his claim for service connection, he included a letter from a private physician opining on the likelihood of his rectal cancer being a result of in service asbestos exposure. Dr. L has treated the Veteran from his first diagnosis of rectal cancer in October 2014. Per the letter, Dr. L opined that the Veteran’s rectal cancer is more likely than not due to asbestos exposure during service. The letter reflects that Dr. L considered the possibility of the Veteran’s rectal cancer being related to a five-year period of smoking cigarettes, but opined that the history of asbestos exposure is “far greater than any smoking risk.” Dr. L referenced several medical studies and articles in support of this decision – but did not include the names of those studies or articles. While competent and credible as a medical professional, this opinion holds less weight because of the lack of literature cited. In March 2018, the Veteran received a VA examination in response to his claim for service connection. The VA examiner indicated that he fully reviewed the claims file and conducted an examination. The examiner opined that the Veteran’s rectal cancer was less likely than not related to any in-service asbestos exposure. He referenced several studies that indicated a potential connection between rectal cancer and asbestos exposure, but ultimately found the materials were “suggestive but not sufficient” to grant a nexus. These studies were promising of a connection, but did not yet have enough support in the medical community to constitute a recommendation of causation. In August 2020, the Veteran provided a second private medical opinion regarding entitlement to service connection. Dr. S indicated in the letter that he reviewed the relevant parts of the Veteran’s claims file. Additionally, Dr. S opined that asbestos exposure aboard the USS Orion was confirmed by “materials available in the public domain,” and that it was at least as likely as not that the Veteran was exposed during service. Furthermore, Dr. S opined that it is more likely than not “that such exposure led to the development of his rectal cancer.” Dr. S went on to detail medical studies of asbestos exposure and its impact on gastrointestinal systems, to include the rectum, and compared his findings with that of the VA examiner. Contrary to the VA examiner, Dr. S found that the many different studies strongly suggested a link between asbestos exposure and rectal cancer, and that it is more than likely the cause of the Veteran’s diagnosis. The Board is responsible for assigning weight to these differing medical opinions. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008) (it is within the purview of the Board to evaluate the medical evidence and favor one medical opinion over another). Taking into consideration the two private opinions advancing a connection between asbestos exposure and rectal cancer, the VA examiner’s explanation that the medical literature showed a possible connection between asbestos exposure and rectal cancer, and the numerous articles and studies provided by the Veteran that suggest a connection, the Board finds the evidence to at least be in equipoise on the question of service connection. For these reasons, the Board will resolve reasonable doubt in favor of the Veteran to find that service connection for cancer of the rectum is warranted due to asbestos exposure during service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Boivin, 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.