Citation Nr: 21063596 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-04 392 DATE: October 14, 2021 ORDERS 1. As new and material evidence has been received, the claim for entitlement to service connection for asbestosis is reopened; to that extent only, the appeal is granted. 2. Entitlement to service connection for asbestosis is denied. FINDINGS OF FACT 1. In a March 2004 rating decision, the RO reopened and denied the Veteran's claim for asbestosis; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was received within one year of the decision, and the decision became final. 2. The evidence received since the March 2004 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection to a back disability. 3. The preponderance of the evidence demonstrates that the Veteran's asbestosis was not caused by an in-service asbestos exposure. CONCLUSIONS OF LAW 1. The March 2004 rating decision that reopened and denied the claim of entitlement to service connection for asbestosis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1952 to October 1956. The Veteran died during the pendency of the appeal in March 2016, and in July 2021 the Board dismissed the Veteran's appeal. In a July 2021 letter, the Regional Office (RO) indicated that the Appellant, the Veteran's surviving spouse, was properly substituted. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) RO. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases, and the Secretary of VA has not promulgated any specific regulations. An opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. Asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. The clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asbestosis Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a). 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. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 final 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the May 2003 rating decision, the RO denied the Veteran's claim for service connection for asbestosis because there was no evidence of treatment or diagnosis of any chronic lung disorder, to include asbestosis. That decision was final. In a March 2004 rating decision, the RO reopened the claim for service connection for asbestosis, and confirmed and continued the denial of service connection. Since the last final denial in March 2004, the record includes medical records with doctors suggesting asbestos exposure while on ships in service and while working for forty years in a still mill. The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The August 1998 x-ray by a private physician will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for asbestosis is reopened. Entitlement to service connection for asbestosis The Veteran alleged that he developed asbestosis due to asbestos exposure at the Portsmouth Naval Hospital in Virginia, in the walls of the Great Lakes Hospital in Illinois in 1955, and on ships during his service. The Veteran's service treatment records (STRs) do not show complaints of, treatment for, or any diagnosis of a lung disease, including asbestosis. The Veteran's November 1952 STRs documented a physical exam which indicated a clear chest, his January 1955 STRs indicated a negative chest x-ray, and his October 1956 exit examination noted a normal chest x-ray. The Veteran's military occupational specialty (MOS) was a hospital corpsman, which entailed a minimal risk of asbestos exposure. An August 1998 x-ray by a private physician indicated interstitial changes consistent with pulmonary asbestosis, assuming appropriate environmental exposure history and an adequate latent history. An August 2000 pulmonary function report by a private physician noted that the Veteran had smoked for 40 years and listed his diagnosis as "dyspnea rule out asbestosis." An August 2000 private litigation document indicated that the Veteran was diagnosed with asbestosis in 1998 and was exposed to asbestos from 1956 to 1996 in a steel mill in Michigan when he was working as an annealer and then as an assistant general foreman and general foreman. A March 2003 x-ray by a private physician revealed normal results. VA medical treatment records from February 2013 through November 2013 included an April 2013 computed tomography (CT) scan which showed particulate predominate reticular opacities with traction bronchiectasis and scattered subpleural cysts, consistent with honeycombing. The findings were found to be compatible with an interstitial lung disease, and given the history of asbestos exposure asbestosis was possible, but there were no other stigmata such as pleural plaques to suggest previous asbestos exposure. The VA medical treatment records from February 2013 through November 2013 also contained the notes of a VA physician who indicated that the Veteran was exposed to asbestos during his miliary service and at work where he was a steel mill supervisor for 40 years and was exposed to asbestos and/or dusts. In service, the examiner stated that the Veteran was likely around asbestos but was not involved in installing or removing it nor involved in building ships. The VA physician opined that the Veteran either had true idiopathic pulmonary fibrosis or an interstitial lung disease with a possible asbestos exposure. He ruled out smoking because the findings from his CT scan and pulmonary function test were not consistent with a smoking-related lung disease, and he said an exposure-related condition was very possible because he did not know of another cause of the Veteran's fibrosis. The VA physician noted that while it was true that the Veteran's asbestos exposure risk was not high and that he lacked pleural plaques which would have provided stronger evidence that his fibrosis was asbestos-related, one can have asbestosis without pleural plaques. He said he was supportive of the Veteran's claim, especially if the Veteran was truly just doing administrative work in the steel industry, but he also indicated that he didn't think a denial would be unreasonable. The VA physician concluded that the Veteran's fibrosis may have resulted from exposure to asbestos while working in the steel mill, as even as a supervisor he spent time in places where there was industrial dust in the air, or from an in-service exposure. He explained that the development of asbestosis requires either prolonged exposure to low levels of asbestos or intense exposure over a shorter period of time. A death certificate indicated that the Veteran died of pulmonary fibrosis and asbestosis on March 12, 2016. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for asbestosis, as it finds that the evidence of record establishes a low probability of exposure to asbestos in-service and no nexus between the Veteran's alleged in-service asbestos exposure and his asbestosis. While the Veteran stated that he was exposed to asbestos in-service, his MOS of a hospital corpsman had a minimal risk of asbestos exposure, and his STRs did not include any complaints of, treatment for, or a diagnosis of any lung disease, including asbestosis. Additionally, the August 2000 private litigation document indicated that the Veteran had substantial exposure to asbestos from 1956 to 1996 in a steel mill in Michigan when he was working as an annealer and then as an assistant general foreman and general foreman. Milling has been recognized as an occupation involving asbestos exposure. Therefore, the Board finds that the Veteran faced a low probability of asbestos exposure in-service and a significant probability of exposure post-service while working in a steel mill for forty years. While the 1998 x-ray by a private physician displayed pulmonary asbestosis and additional medical records continued to diagnose asbestosis, the medical opinion provided by the 2013 VA physician is insufficient to establish a nexus between the Veteran's alleged in-service asbestos exposure and his asbestosis. The VA physician stated that the Veteran either had true idiopathic pulmonary fibrosis or an interstitial lung disease with a possible asbestos exposure, and he indicated that an exposure-related condition was very possible. He noted that while it was true that the Veteran's asbestos exposure risk was not high and that he lacked pleural plaques, one can have asbestosis without pleural plaques, and he was supportive of the Veteran's claim, especially if he was truly just doing administrative work in the steel industry. However, the VA physician also indicated that he also didn't think a denial would be unreasonable. Thus, supporting a finding that his asbestos exposure was more likely due to his 40 years in a steel mill. Indeed, he concluded that the Veteran's fibrosis may have resulted from exposure to asbestos while working in a steel mill after his service, because even as a supervisor he spent time in places where there was industrial dust in the air, or it resulted from his military service. He explained that the development of asbestosis requires either prolonged exposure to low levels of asbestos or most intense exposure over a shorter period of time. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The use of the words "possible," "may," or "can be" make a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (stating that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). Here, the VA physician's use of the word "possible" in the opinion renders it speculative, and therefore entitled to no probative weight. Id. Additionally, The VA physician is inconclusive about whether the Veteran's asbestosis was the result of an in-service exposure or a post-service occupational exposure at a steel mill. The Board has also considered the Veteran's statements regarding his asbestosis and his beliefs regarding his exposure to asbestos in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), as to the specific issue being decided herein, an opinion as to whether the Veteran's asbestosis is etiologically related to any claimed exposure while in-service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, contrary to the Veteran's statements to the VA physician that he was doing administrative work in the steel mill, the litigation documentation in the claims file clearly shows that the Veteran's work in the steel mill was as an annealer and then as an assistant general foreman and general foreman, none of which are administrative in nature. The litigation document of record clearly demonstrates that the Veteran had definitive asbestos exposure due to his 40 years of work in a steel mill, resulting in asbestosis. There is absolutely no mention of any prior possible asbestos exposure during service. Additional evidence that is contrary to his assertions. In sum, the claims file does not contain competent and credible evidence that the Veteran's diagnosed asbestosis is related to any claimed exposure to asbestos while in-service. In fact, the evidence supports that his diagnosed asbestosis was more likely than not related to his exposure in the steel mill post service. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.