Citation Nr: 21065922 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-19 589 DATE: October 27, 2021 ORDER The appeal for entitlement to service connection for cystic fibrosis has been withdrawn. Entitlement to service connection for pulmonary fibrosis is granted. FINDINGS OF FACT 1. During the October 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the appeal for entitlement to service connection for cystic fibrosis. 2. The Veteran's currently diagnosed pulmonary fibrosis is asbestosis that was caused by asbestos exposure during active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection cystic fibrosis by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for pulmonary fibrosis are 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 from January 1977 to November 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to service connection for cystic fibrosis. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran has withdrawn the appeal as to the issue of entitlement to service connection for cystic fibrosis and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. 2. Entitlement to service connection for pulmonary fibrosis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends that he has pulmonary fibrosis due to his active service, specifically due to exposure to asbestos from Navy shipyards. Service personnel records show that the Veteran was stationed aboard USS Fulton, USS Miller, USS Vogelgesang, and his military occupation specialty (MOS) was ship's serviceman (SH). In a June 2019 Statement of the Case, the RO conceded the Veteran's exposure to asbestos based on his service aboard ships and shipyards and nature of his service. A VA examination was provided in April 2018 by a Doctor of Osteopathic Medicine. The examiner listed diagnoses of asthma, emphysema, interstitial lung disease, benign or malignant neoplasm or metastases of respiratory system, and mycobacterium avium complex (MAC) infection. The Veteran reported that he was a ship serviceman in supply and a boatswain mate in the Navy. He recalled while on the ship he had trouble breathing and frequent coughs. The examiner noted that the Veteran's MOS as ship's serviceman had a minimal probability for asbestos exposure; and provided an opinion that the respiratory condition was less likely than not incurred in or caused by any injury, event or illness in service. The rationale was that idiopathic means unknown cause and as the Veteran is noted to have idiopathy pulmonary fibrosis, "we do not know the cause of this pulmonary fibrosis, as the cause is unknown." In a March 2020 brief, the Veteran's representative argues that the April 2018 VA examiner's opinion was inadequate because it was not accompanied by sufficient rationale. It was noted that the examiner was not a pulmonologist, but a Doctor of Osteopathic Medicine, specializing in Internal Medicine. More significantly, however, while the examiner stated the Veteran's idiopathic pulmonary fibrosis could not be related to his asbestos exposure in service because idiopathic means unknown, the examiner failed to explain what exactly idiopathic pulmonary fibrosis was. The representative cited a National Institute of Health article that stated the following in pertinent part: Idiopathic pulmonary fibrosis (IPF) is a serious chronic disease that affects tissue surrounding the air sacs, or alveoli, in your lungs. This condition occurs when that lung tissue becomes thick and stiff for unknown reasons. Over time, these changes can cause permanent scarring in the lungs, called fibrosis, that make it progressively more difficulty to breathe...IPF is a type of interstitial lung disease." The Board agrees. In the June 2018 rating decision, the RO stated that "the most common disease associated with asbestos exposure is interstitial pulmonary fibrosis (asbestosis)." In this regard, there is no specific statutory guidance with regards to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. See DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), providing guidelines for considering compensation claims based on exposure to asbestos. The U.S. Court of Appeals for Veterans Claims (Court) has held that VA must analyze a claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols of these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and an asbestos-related disease can develop from brief exposure to asbestos. Here, the Veteran was initially denied service connection because the VA examiner believed the cause of the Veteran's pulmonary fibrosis was idiopathic (of unknown cause). The VA examiner ruled out any correlation between the Veteran's current pulmonary fibrosis and his service including, notably, the conceded in-service exposure to asbestos, primarily because the listed diagnosis was idiopathic pulmonary fibrosis. However, treatise evidence cited by the Veteran's representative indicates that idiopathic pulmonary fibrosis is a type of "interstitial" lung disease. More importantly, private medical records did show a diagnosis bilateral interstitial pulmonary fibrosis on biopsy in December 2008. Accordingly, in applying the benefit-of-the doubt doctrine, the Board finds that medical explanations show that it is at least as likely as not that the Veteran's currently diagnosed pulmonary fibrosis was the result of asbestos exposure during service. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board finds the Veteran's asbestosis was caused by in-service asbestos exposure, and therefore service connection is granted. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.