Citation Nr: 21005684 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-02 379 DATE: February 2, 2021 ORDER Entitlement to service connection for a lung disorder due to exposure to asbestos, including pleural disease with pleural plaques (initially claimed as asbestosis or mesothelioma) is granted retroactively effective from June 30, 2010. [Note: service connection already since has been granted, during the pendency of this appeal, for squamous cell carcinoma in the right upper lobe of the lung (mediastinal lymph node) and consequent need to undergo surgery for removal of this portion of the lung (pneumonectomy), also for the post-operative surgical scars, but only as of more recent effective dates – namely, as of December 11, 2019 and May 19, 2020, and instead on the premise the lung disability is from exposure to herbicides.] FINDING OF FACT It is just as likely as not the Veteran’s lung disorder and consequent eventual need to undergo the lung removal surgery is due both to exposure to asbestos and herbicides during his many years of service.   CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for his entitlement to service connection for a lung disorder even as of an earlier effective date – namely, as of his earlier June 30, 2010 claim for what amounted to the same disability later determined to be related to or the result of his service, albeit on a different premise. 38 U.S.C. §§ 1101, 1110, 1112, ,1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy for many years – from August 1959 to August 1962, from January 1963 to January 1967, and from February 1969 to June 1982. This appeal to the Board of Veterans’ Appeals (Board) originated from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran’s claim of entitlement to service connection for a lung disorder, which, at the time, the RO indicated had been claimed as asbestosis but also included consideration of chronic obstructive pulmonary disease (COPD). In his July 2011 Notice of Disagreement (NOD), the Veteran pointed out that his primary care doctor initially had misdiagnosed his lung disorder as COPD in 2009, when, in actuality, he had mesothelioma (asbestosis) that he believed could only be from exposure to asbestos during his many years of service aboard old ships in the Navy and from working on them in the shipyard. He also indicated he since had undergone surgery for removal of his right upper lung lobe (so pneumonectomy). The Veteran also provided this same explanation for his lung disorder in Statements in Support of his Claim (on VA Form 21-4138) that he submitted in June, July, and August 2010, so before the RO’s June 2011 decision that he appealed, and again on a VA Form 21-4138 that he also subsequently submitted in September 2011 after the RO had denied his claim and even after his NOD. On his January 2013 Substantive Appeal to the Board (on VA Form 9), the Veteran requested a hearing before the Board. His hearing resultantly was scheduled for in October 2017. But, prior to the hearing, he requested postponement of it owing to health-related issues. In November 2020, he was offered another opportunity to appear at a hearing before this Board, and he was advised that, if he did not respond within 30 days, the Board would assume he did not want a hearing. He did not respond. Meanwhile, so possible why the Veteran did not respond to that inquiry concerning whether he still wanted a hearing, the RO granted service connection for a lung disorder – albeit characterized differently as squamous cell carcinoma in the right upper lobe of the lung (mediastinal lymph node) and consequent need to undergo surgery for removal of this portion of the lung (pneumonectomy), also for the post-operative surgical scars, but only as of more recent effective dates – namely, as of December 11, 2019 and May 19, 2020, and instead on the premise the lung disability is from exposure to herbicides (the dioxin in Agent Orange). See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). Ordinarily, the grant of service connection during the pendency of the appeal would require the Veteran to separately appeal any “downstream” issue, so including the initial ratings assigned for his disability and the effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Moreover, if the claim mistakenly still was certified to the Board on the issue of underlying entitlement to service connection, the Board could summarily dismiss the appeal as already granted – if there was no remaining issue still in dispute or controversy. 38 U.S.C. § 7105(d)(5); 38 C.F.R. §§ 20.101, 20.104(c). See also Ramsey v. Nicholson, 20 Vet. App. 223, 224-225 (2006); Bond v. Derwinski, 2 Vet. App. 376, 377 (1992) (When the relief sought has been accomplished, the appropriate course of action is to dismiss the matter as moot). Here, though, based on his earlier pleadings and all that since has transpired, it is apparent the Veteran’s claim years ago, in June 2010, was the same claim that eventually was granted during the pendency of this appeal. Thus, he is entitled to service connection from the date of receipt of that earlier claim (June 30, 2010). 38 U.S.C. § 5110; 38 C.F.R. § 3.400.  When adjudicating claims, all potential theories of entitlement must be considered, irrespective of whether specifically raised by the Veteran or otherwise by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("...where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim."); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (In adjudicating a claim, the Board must consider all potential bases of entitlement). VA has a duty to address all arguments put forth by a claimant and/or all theories under which entitlement to benefits sought may be awarded. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Consequently, although the Veteran’s earlier claim was predicated on the notion his lung disorder was from exposure to asbestos during his many years of service, but later granted instead on the premise it is due to exposure to herbicides, in either case it is attributable to his military service – so a service-connected disability. Thus, because in this decision the Board is finding that his lung disorder is from exposure to asbestos, even aside from additional exposure to herbicides, the Board has this authority to make the award for this lung disability retroactive to the date of receipt of his earlier claim on June 30, 2010 rather than just as of the more recent effective dates the RO assigned of December 11, 2019 and May 19, 2020. In other words, the RO’s grants did not resolve the appeal in its entirety. Service connection is granted additionally for lung disability, namely, for pleural disease with plaques, owing to exposure to asbestos. According to the relevant statutes, regulations, and caselaw, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Since “chronic”, per se, malignant (cancerous) tumors also may be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran’s separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting the required nexus to service also may be established for these “chronic” diseases by showing of continuity of symptomatology since service under 38 C.F.R. § 3.303(b)). Conversely, there is no specific statutory guidance regarding asbestos-related claims, nor has the VA Secretary promulgated any regulations concerning such claims. However, the VA Adjudication Procedure Manual, M21-1, and opinions of the United States Court of Appeals for Veterans Claims (Veterans Court/CAVC) and VA General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing 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. In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases or abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(b). 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 IV, Subpart ii, Chapter 2, Section C, 2(d). This is significant since there is probative (meaning competent and credible) confirmation of pleural plaques. See June 2009 private radiology report. There also, notably, is probative indication these pleural plaques and consequent lung disease are as likely as not the result of the Veteran’s exposure to asbestos during his many years of service while stationed aboard ships and working in shipyards. The Veteran's service personnel records (SPRs) show that his military occupational specialty (MOS) was maintenance man aboard several Navy ships. He has explained that, in that responsibility, he had to go to shipyards and his quarters contained holes with asbestos lined piping that would routinely fall out. See May 2011 VA examination report. He is competent to comment on the circumstances, conditions, and hardships of his service. See 38 U.S.C. § 1154(a). His lay testimony concerning this also is credible and, thus, ultimately probative, because it is supported by medical evidence indicating his pleural plaques and lung disease are as likely as not the result of the exposure to asbestos that he says occurred during his time in service and in the manner alleged. The Veteran's lung disorder was first correlated with asbestos exposure during a private examination in June 2009. During that examination, the evaluating physician noted that chest X-rays showed small calcified pleural plaques consistent with prior asbestos exposure. That evaluating physician also noted the Veteran had fairly good breath sounds, bilaterally, meaning in both lungs, but with mild forced expiratory wheezes with some prolongation of the expiratory phrase. After a review of a computed tomography (CT) scan, that evaluating physician reiterated “there are bilateral ossified pleural plaques most consistent with asbestos related pleural disease.” The Veteran was provided a VA compensation examination in May 2011. During this additional examination, he denied exposure to asbestos either prior to or since his military service, only instead during his service. In his NOD and Statements in Support of his claim (on VA Form 21-4138) that he submitted before and in response to the RO’s initial denial of his claim, he explained that, since his service, he had worked for the California Department of Fish and Game in an outdoor setting with no chance of contact with asbestos. He said he began having shortness of breath with worsening during the 2 to 3 years immediately preceding that VA examination, so dating back to 2008/2009 or thereabouts. This is significant because, although his military service had ended much earlier, in 1982, the Procedures Manual guidelines (M21-1) specify that the latency period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. So, it is conceded the disease often does not develop – certainly to a discernible extent, until long after the exposure to asbestos has occurred. He reported hemoptysis, wheezing, dyspnea, and night sweats. He also reported having a history of smoking, but also that he had quit over two years prior to that examination. For claims, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Precedential opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of respiratory disorders such as COPD. See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). Here, however, even in his earlier pleadings the Veteran clarified that he was not claiming entitlement to service connection for COPD because that was an initial misdiagnosis by his primary care provider, which was later corrected to mesothelioma (asbestosis) because of exposure to asbestos during his service. During the VA compensation examination, the Veteran denied any prior lung biopsy, pneumonia, or hospitalization for breathing or lung issues. The VA examiner concluded the Veteran’s CT scan show pleural plaquing indicative of asbestos exposure and that it was more likely than not his exposure to asbestos was in the military. This VA examiner further explained that, while the Veteran was exposed to asbestos, he did not meet the criteria for asbestosis, so this apparently was one of the reasons the RO initially denied the claim. But asbestosis is not the only disease considered to be a result or consequence of exposure to asbestos. Further, in his NOD, the Veteran cited a diagnosis of mesothelioma by no less than four medical facilities and six doctors in total, which, as already discussed, is one of the diseases commonly associated with exposure to asbestos. Certainly then, it is as likely as not – if, indeed, not more likely than not – the Veteran was exposed to asbestos during his many years of Naval service and consequently eventually contracted mesothelioma or similar lung disease, as evidence by the radiographic confirmation of pleural plagues, which in turn ultimately led to the removal of the right upper lobe of his lung. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Thus, the grant of service connection for this consequent lung disability necessarily must extend back to the date of receipt of his claim for what amounts to this same disability on June 30, 2010. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.