Citation Nr: 21005438 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-46 988 DATE: February 1, 2021 ORDER Entitlement to service connection for status post esophagogastrectomy, status post neoadjuvant chemotherapy due to adenocarcinoma of the lower esophagus (esophageal cancer) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his esophageal cancer is related to exposure to asbestos in service. CONCLUSION OF LAW The criteria for entitlement to service connection for esophageal cancer are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from February 1969 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in November 2015. The Board remanded the case to the AOJ in December 2019. 1. Entitlement to service connection for esophageal cancer The Veteran seeks service connection for esophageal cancer, which he asserts is related to service, to include exposure to asbestos. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has carefully reviewed the evidence of record and finds that the Veteran’s esophageal cancer is due to exposure to asbestos in service. Thus, the criteria for service connection for esophageal cancer have been met. Regarding the Veteran’s claimed asbestos exposure, there is no specific statutory or regulatory guidance regarding asbestos-related diseases. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, pursuant to VA policy inhalation of asbestos fibers can produce fibrosis and tumors, including cancers of the gastrointestinal tract. At the outset, the Board notes that a current diagnosis of cancer of the esophagus has been established. An August 2015 private treatment record reflects that the Veteran underwent an Ivor Lewis esophagogastrectomy. The operation report noted that the Veteran had a postoperative diagnosis of status post neoadjuvant adenocarcinoma of the lower esophagus and gastroesophageal (GE) junction. See also November 2015 and March 2020 VA examinations. The Board concedes that the Veteran was exposed to asbestos during service. Although the Veteran’s DD-214 notes that the Veteran’s military occupational specialty (MOS) was gunner’s mate, which has not been shown to have a “highly probable” or “probable” chance of exposure to asbestos, the Board notes that the Veteran competently and credibly stated that he was exposed to asbestos when he would paint the inside and outside of the ship, which has been shown to have probable chance of exposure to asbestos. He also reported, and personnel records reflect, that he served aboard the USS Sierra (AD 18), USS Wright (CC 2) and the USS Purdy (DD 734), all ships with asbestos wrapped pipes that were often damaged exposing the asbestos and he reported sleeping under such pipes. Due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Resolving all reasonable doubt in the Veteran’s favor, the Board finds that a March 2020 VA examination coupled with an August 2015 private treatment record establishes that it is at least as likely as not that the Veteran was exposed to asbestos. In March 2020, the VA examiner noted that vast literature noted that the most common problems with asbestos included pleural plaques in the lungs which could be asymptomatic, pleural effusions, fibrosis or asbestos, and malignant mesotheliomas of the lung. In September 2013, a VA treatment provider opined that underlying neoplasm including mesothelioma could not be excluded based upon a VA ultrasound which revealed indeterminate bilateral nodular pleural plaques with possibly interval enlarging nodular areas. As noted, in August 2015, the Veteran underwent an Ivor Lewis esophagogastrectomy status post neoadjuvant chemotherapy for adenocarcinoma of the lower esophagus and gastroesophageal junction. The treatment provider noted that there were some plaques present on the pleura of the lower chest, which the treatment provider opined suggested old asbestos exposure. See also September 2013, March 2014, April 2014 VA treatment records, which revealed that there was evidence that the Veteran had pleural plaques and pleural nodules. But see October 2013 VA treatment records. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). The Board notes that post-service treatment records reflect that the Veteran also had a history of smoking for more than 40 years. See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). 38 U.S.C. § 1103; 38 C.F.R. § 3.300. However, in this case, based upon the evidence of record which reflects that the Veteran had been exposed to asbestos; the Board finds that June 2019 and April 2020 private opinions support a finding that it is at least as likely as not that the Veteran’s esophageal cancer is related to his exposure to asbestos. See also August 2016 private opinion. The June 2019 private treatment provider noted that the Veteran reported a history of asbestos exposure as a gunner on a war ship; and he did not report any other workplace exposure to asbestos. The treatment provider noted that asbestos fibers could be ingested through the mouth and lodge into the esophagus eventually causing esophageal cancer. Thus, the examiner opined that cancer of the esophagus could be attributed to asbestos exposure. In an August 2020 letter, a private medical doctor stated that obesity and malnutrition did not play a part in the development of the Veteran’s lung cancer. The examiner noted that the Veteran quit smoking years before being diagnosed with cancer and noted that the Veteran had been exposed to asbestos as a navy gunner in 1969-1970. The examiner noted as reported further by Dr. R.B. that esophageal cancer has been linked to asbestos exposure and the Veteran’s circumstances, and this was the most likely cause of the Veteran’s cancer. The Board notes that the November 2015 VA examiner who opined that it was less likely than not that the Veteran’s esophageal cancer was secondary to exposure to asbestos simply listed risk factors for esophageal cancer, including hereditary, living in certain geographic regions, history of smoking and alcohol consumption, a diet low in fruits and vegetables, zinc deficiency, folate deficiency, history of HPV exposure, history of atrophic gastritis, and poor oral hygiene; the examiner did not link those factors to the Veteran. Further, the March 2020 VA examiner, who opined that the Veteran did not have mesothelioma, did not discuss a September 2013 VA treatment provider’s opinion that underlying neoplasm including mesothelioma could not be excluded based upon a VA ultrasound which revealed indeterminate bilateral nodular pleural plaques with possibly interval enlarging nodular areas. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board essentially has found that the evidence is in equipoise as to whether the Veteran’s esophageal cancer is related to exposure to asbestos in service. The Board finds that the August 2016, June 2019 and April 2020 private opinions are competent, credible and probative, and coupled with the other medical evidence of record including the post-service treatment records and lay evidence, supports a conclusion that service connection for esophageal cancer is warranted. Therefore, the November 2015 and March 2020 VA opinions cannot be afforded greater probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that evidence of record supports a finding that service connection for esophageal cancer due to exposure to asbestos in service is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.