Citation Nr: 21063277 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-49 458 DATE: October 13, 2021 ORDER The claim for service connection for lung cancer residuals, to include as due to asbestos exposure, is granted. The claim for service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure, is denied. FINDINGS OF FACT 1. The Veteran's residuals of lung cancer are reasonably demonstrated to be due to in-service asbestos exposure. 2. The Veteran's COPD first manifested many years after military service and is unrelated to any inservice illness or event, including in-service asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of lung cancer, to include as due to asbestos exposure, have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for COPD, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was in the Army National Guard and had active duty for training (ACDUTRA) in the Army from December 1977 to March 1978. He was honorably discharged from a period of active duty in the U. S. Navy from February 1981 to February 1984 and his DD 214 of this period of service shows that his military occupational specialty (MOS) was "BM" [Boatswain's Mate]. Personnel records show that during active duty in the Navy the Veteran served aboard the U.S.S. Stein from 1981 to 1984. By letter of May 9, 2019, the RO informed the Veteran that as to his request to participate in the Rapid Appeals Modernization Program (RAMP), VA accepted all RAMP elections, if postmarked on, or prior to, February 15, 2019. However, the Veteran's Ramp Opt-In Election form was received on April 1, 2019. His various options were explained. By letter of May 22, 2019, the RO informed the Veteran that it had received his request for a Higher-Level Review (HLR) but could not accept his request for HLR because the time limit to file that application had passed. Specifically, VA had to receive a request for HLR no later than one year following notification of the contested decision. In this case, the RO notified him of the rating decision on June 24, 2017. However, VA did not receive his VA Form 20-0996 "Decision Review Request: Higher Level Review" until May 8, 2019, more than one year from the date he was notified of the decision. In response, the Veteran filed VA Form 20-0995, Decision Review Request: Supplemental Claim, on May 23, 2019, as to the claims for service connection for COPD and lung cancer. By RO letter of June 13, 2019, the RO acknowledged receipt of the VA Form 20-0995, but stated that those claims were already part of a pending Legacy Appeal and because of this the Supplemental Claim could not be accepted. Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 1131. Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). A showing of an in-service chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic. A showing of continuity of symptoms is not required when disease identity is established but is required when in-service chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Certain chronic conditions will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, although cancer is a listed disease, COPD is not listed as such a chronic condition under 38 C.F.R. § 3.309. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (demonstrating a continuity of symptomatology since service or within the presumptive period after service only applies to the chronic diseases listed under 38 C.F.R. § 3.309(a)). Regarding the Veteran's respiratory claim, a medical nexus of a relationship between the condition and service is required. Walker v. Shinseki, supra. In this regard, service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). The Board must find whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. 1. The claim for service connection for lung cancer residuals, to include as due to asbestos exposure The Veteran claims that during his active duty in the Navy he had significant in-service exposure to asbestos that has caused his lung cancer, for which he had a lobectomy in 1996, and his COPD. There is no allegation that he was exposed to asbestos during his earlier ACDUTRA in the Army or that his claimed disorders are otherwise related in any manner to his period of ACDUTRA and, so, only the contention of a relationship with his Navy active duty will be addressed herein. Turning to the merits of the Veteran's claim, as to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities, including lung cancer. See M21-1, Part VI, par. 7.21(a)(1) & (2). 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. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on, even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). M21-1 does not create a presumption of inservice exposure to asbestos for claimants that worked in one of the occupations that the M21-1 lists as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); see also Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Thus, in claims of service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGDPREC 04-2000 (April 13, 2000), it was held as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. Here, it is undisputed that the Veteran had some degree of probable exposure to asbestos during active duty in the Navy. This degree of probability has played a decisive role in the varying medical opinions on file. Of record are statements in April 2017, May 2018, and March 2019 Dr. T. L., a VA pulmonologist, and in each statement it was reported that the Veteran had history of heavy asbestos exposure from 1981 through 1984. He had significant pulmonary issues with a history of lung cancer, status post right upper lobectomy in 1996, and COPD with severe airflow obstruction, recurrent aspiration pneumonias, significant asbestos exposure, and floor of mouth cancer. In the May 2018 and March 2019 statements the VA pulmonologist reported that he had reviewed the Veteran's claim file. The Veteran had worked in a boiler room of the U.S.S. Stein, a frigate, and was exposed to open air asbestos particles. An October 2016 outside CT scan showed clear pleural calcifications, although the report did not mention them, and there was also extensive fibrotic pulmonary parenchymal scarring, which were again demonstrated by a most recent VA CT pulmonary angiogram in April 2018. Pulmonary function testing revealed a decrease in lung function from studies in December 2014 to more recent studies in January 2017, including a decrease in Forced Vital Capacity (FVC), Total Lung Capacity (TLC), and "DLCO" and these findings were consistent with mixed obstructive and restrictive defects. "The restrictive defects most likely secondary to asbestosis." Dr. T. L. opined in the April 2017 statement that "[i]t [was] as likely as not atha the pleural plaquing, fibrotic scarring in the lungs and the decreased TLC [were] related to asbestosis. It [was] also as likely as not that his asbestos exposure helped to contribute to lung cancer." In the May 2018, and March 2019 statements that VA physician reported that the Veteran's current lung condition of pleural plaquing and fibrotic scarring in the lungs with associated decreased in TLC and DLCO were (in the May 2018 statement) at least as likely as not, and (in the March 2019 statement) were likely caused, by his documented extensive asbestos exposure during his military service. In both statements it was reported that it was also as likely as not that his asbestos exposure helped contribute to his lung cancer that occurred at a young age. In a July 2020 statement, Dr. W. T., another VA staff pulmonologist, reported that the Veteran was followed by the Pulmonary Service at a VA Medical Center, He had a history of lung cancer which required surgery. He also had a history of asbestos exposure in the Navy in the 1980s, as well as a chest CT scan in February 2020 demonstrating "partly calcified pleural plaque in the right mid chest laterally" which was very suggestive of prior asbestos exposure. Given this history and radiology findings, it was opined that the Veteran's prior lung cancer was more likely than not related to his prior asbestos exposure in the Navy. "His prior smoking [was] also a likely contributor to his lung cancer, but the asbestos [was] known to synergistically increase the risk of lung cancer when combined with cigarette smoking." On the other hand, in September 2016 a different VA physician reviewed the Veteran's claim file, although no physical examination was conducted. The diagnoses were COPD, and adenocarcinoma of the lung, in remission, having been diagnosed in 1996. It was noted that the Veteran's MOS had been a Boatswain's Mate, which was an MOS having "minimal" probability for asbestos exposure. He had had a right upper lobectomy in 1996, and COPD had been diagnosed in 2014. It was reported that the Veteran did not have a current diagnosis of asbestosis, and multiple thoracic CT scans perform at a VA Medical Center revealed no evidence of asbestos-related diseases of either the lung parenchyma or the pleura. The VA physician cited to medical literature, including literature that according to the "Helsinki" criteria the presence of pleural plaques was not part of the criteria for diagnosing asbestosis, but diffuse pleural thickening should be considered evidence of heavy asbestos exposure. It was opined that the Veteran's "lung cancer and his current COPD condition[s] are less likely than not proximately due to or caused by possible asbestos exposure inservice. COPD is not caused by asbestos exposure. The [V]eteran has no evidence of asbestos related lung disease on numerous Chest CT studies available for review. In the absence of asbestosis and in the setting of a low probability of exposure it [was] less likely than not likely that asbestos had anything to do with the causation of his lung cancer condition." In May 2017 that same VA physician again reviewed the records. It was stated that the Veteran reported that while aboard the U.S.S. Stein he had performed an "additional duty" for 30 days that involved removing insulation from pipes in the boiler room. He stated he was given a dust mask and advised to use it but reported that "it was too hot" to wear it. On another occasion he had a 14 day detail that involved painting in the engine room and another painting in the engine-windlass room for several weeks during which he was required to remove old insulation from pipes and bulkheads. He reports he was given a dust mask and gloves which he wore intermittently. His post-service work history was reported but contain no indication that he was exposed to asbestos after military service. In May 2017 the VA physician that conducted the examination in 2016 opined that the Veteran's lung cancer was less likely than not incurred in or cause by the claimed inservice event (asbestos exposure). The rationale was that the Veteran did not have a diagnosis of asbestosis either made by his treating clinician, radiologist based on numerous Chest CT studies nor by this opining physician after review of the case on two separate occasions. It was noted that a statement by Dr. T. L., a VA pulmonologist, was considered in rendering the opinion but at no point prior to the date of the April 2017 statement by Dr. T. L., did the matter of asbestos related diseases enter the clinical record. The Veteran's VA pulmonologist had not rendered a diagnosis of "asbestos" prior to the April 2017 statement. Although Dr. T. L.'s medical statement indicated that the Veteran's October 2016 outside CT scan showed clear pleural calcifications, which had not been mentioned in that report, the absence of evidence of calcified pleural plaques on more than a dozen previous studies argued against the reported "clear pleural calcifications" being evidence of asbestos exposure in the early 1980s versus the probability that focal pleural disease was attributable to the prior right upper lobe surgery in 1996. The opining physician cited to multiple medical sources and stated that "there are very specific CT findings that are typical of asbestosis and they are not found in this veteran at this time." In this case, there is no evidence of respiratory symptoms or disability until many years after service. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that generally the absence of evidence of contemporaneous complaints or treatment for relevant symptoms and disability does not constitute substantive negative evidence to be weighed against a claim. VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded in that record. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). On the other hand, it must also be noted that the guidance cited above, in DVB Circular 21-88-8 and M21-1, reflects that certain diseases have a latency period such that they may not be first detected or cause impairment until many years after any asbestos exposure. Consequently, the fact that the Veteran did not develop respiratory signs, symptoms, and disability until many years after service is not a factor which weighs against his claim here. As to the extent of the Veteran's in-service asbestos exposure, the unfavorable medical opinions have apparently relied upon the Veteran' MOS as a Boatswain's Mate to conclude that he had only minimal asbestos exposure. On the other hand, the favorable medical opinions indicated that, at least in part, the opinions rendered relied on a history of "heavy" asbestos exposure from 1981 to 1984. In support of this the Veteran has reported in a June 2016 Statement in Support of Claim that he was exposed to asbestos performing extra duties, above those of a Boatswains Mate, of fixing and repairing pipes, and grinding on insulated pipes in the boiler room of his ship which had asbestos. In his September 2017, VA Form 9, Appeal to the Board, he stated that while on the U.S.S. Stein he performed extra duties which was to fix and repair pipes, insulation, grinding on all of these, and all other types of maintenance of the ship. Due to an infraction of the regulations, he was assigned "Captains Mast" for 2 weeks and my extra-duty punishment entailed me going into the boiler room to remove the jacketing insulation of the piping in the boiler room in anticipation of civilian refit. When working on the insulated pipes down in the Boiler room I remember all of the dust going in the air and I breathed that in constantly. The ship was one of those which had asbestos on it. In this regard, service personnel records show that the Veteran served aboard the U.S.S. Stein from June 1981 until discharged from service. In July 1981 he was counseled concerning an unauthorized absence. In September 1981 it was noted that his series of disciplinary problems gave rise to serious consideration for a recommendation for administrative discharge. In August 1982 it was noted that he had had three prior nonjudicial punishments which might disqualify him from receiving an honorable discharge. Also, he might be processed for discharge under other than honorable conditions for reasons of misconduct because of the frequent involvement of a discreditable nature. For the same reasons he was again counseled in October 1982. In sum, the service personnel records do confirm the likelihood of the Veteran's having to perform extra duty in keeping with statements, i.e., working around asbestos insulation in a boiler room, and this would increase the probable exposure to asbestos. While the extent of such exposure is possibly not as great as indicated in the favorable medical opinions, with the favorable resolution of doubt, it is greater than the extent of minimal exposure relied upon in the unfavorable medical opinions. When the probable degree of in-service asbestos exposure is considered in the weighing of the contradictory VA medical opinions, and taking into consideration the matter if the potential latency in developing respiratory disability years after asbestos exposure, the favorable and unfavorable evidence is in approximate balance. Under such circumstance, the claim is allowed. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. The claim for service connection for COPD, to include as due to asbestos exposure Service treatment records are negative for COPD but do show that in June 1982 the Veteran had an acute mild upper respiratory infection (URI). However, a chest X-ray at examination for service separation in February 1984 revealed no acute disease and a physical examination revealed his lungs and chest were normal. A September 27, 2016, Report of Contact reflects that relevant medical records at Boise VAMC for the period of January 1, 1987 to June 23, 1994 and from November 15, 1994 to March 10, 1996 do not exist. It is undisputed that the Veteran smoke cigarettes for many years and that the smoking of tobacco products can cause COPD. In this case, there is no competent evidence of COPD until decades after the Veteran's military service and the many years of his smoking cigarettes. To the extent that it is alleged that that the Veteran's COPD is due to in-service asbestos exposure, there is no competent evidence corroborating this contention. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, COPD is not a simple matter capable is lay observation for the purpose of diagnosing a respiratory disorder. Likewise, the Veteran has not reported having a contemporary inservice diagnosis of COPD. Moreover, he has not described inservice symptoms which are the basis or which support a later diagnosis by a medical professional. Rather, the medical opinions of his treating VA pulmonologists make no mention of COPD being due to inservice asbestos exposure and, in fact, their statements did not include any opinion as to the time of onset or etiology of his COPD. Rather, the negative VA medical opinion in this case specifically states that asbestos exposure does not cause COPD. This is in keeping with the other evidence of record, including from his treating VA pulmonologists, that asbestos exposure may cause restrictive lung disease, as opposed to the obstructive nature of COPD which is now claimed. Accordingly, the Board must find that the preponderance of the evidence is against the claim for service connection for COPD and, so, there is no doubt to be resolved. ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.