Citation Nr: 21005779 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-12 583 DATE: February 2, 2021 ORDER Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1967 to July 1970. This case initially came to the Board of Veterans’ Appeals (Board) from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for lung cancer. In June 2013, the Veteran filed a Notice of Disagreement (NOD). The RO issued a statement of the case (SOC) in March 2016 and, in May 2016, the Veteran filed a timely substantive appeal (via VA Form 9). In April 2019, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is of record. In July 2020 the case was remanded by the Board for additional development. In December 2020, the Board sent a letter to the Veteran, which explained that the VLJ who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. He was instructed that if he did not respond to this letter within 30 days, the Board would assume that he did not wish to have another hearing before a Veterans Law Judge currently employed by the Board. The Veteran did not respond to the December 2020 letter. Therefore, it is assumed that he does not want another hearing and the Board will consider his appeal based on the evidence of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Veteran contends that his lung cancer was caused by his exposure to asbestos, diesel fuel and chemical fumes, while performing maintenance on military vehicles. A May 2019 VA examination report notes the Veteran has diagnoses of lung cancer and Chronic Obstructive Pulmonary Disease (COPD). Therefore, the current disability element has been met. A January 2016 VA examiner noted that the Veteran worked as a mechanic and therefore presumed the likelihood of asbestos exposure in service. Therefore, the in-service injury element has been met. After the diagnosis of lung cancer, VA treatment reports indicate the Veteran received a left upper lobectomy in November 2011. A July 2012 post-lobectomy VA treatment report documented left lung pleural thickening and calcification. During a September 2012 VA examination, the Veteran reported experiencing shortness of breath under exertion and was unable to climb a flight of stairs. At that time, medical records indicated he was using inhalational and oral bronchodilator therapy intermittently. In March 2019, the Veteran submitted an internet article on the relationship between asbestos and lung disease. The article stated that pleural thickening is a common result of asbestos exposure, although acknowledging it is not the only cause of this condition. It notes that pleural thickening can be benign, but it may also be caused by malignant mesothelioma, a cancer caused by asbestos exposure that affects the lining of the lungs. At a hearing before a VLJ in August 2019, the Veteran testified to being exposed to highly toxic chemicals, including diesel fuel, during his time in service working as a vehicle mechanic. He also testified to passing out, coughing up black residue and experiencing shortness of breath. He stated that, due to his age and inexperience, he did not report these problems or seek medical attention during service. In compliance with the Board’s July 2020 remand, an addendum opinion as to the etiology of the Veteran’s lung cancer was issued in August 2020. The VA examiner opined that the Veteran’s disability was less likely than not incurred in or caused by the in-service injury, event or illness. Citing medical literature, she determined the primary risk factor for development of lung cancer is cigarette smoking, which is estimated to account for approximately 90 percent of all lung cancer. She found that while the Veteran’s treatment notes documented a history of smoking, they were silent for exposure to fumes from fuels as the cause of his lung cancer. The Board concludes that the 2020 opinion is inadequate. There is no requirement that the service treatment records show exposure to asbestos. The Veteran’s military occupation specialty as vehicle mechanic and conclusion of January 2016 VA examiner are sufficient to establish asbestos exposure, as such exposure is consistent with the places, types, and circumstances of service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). Moreover, the examiner did not consider whether exposure to asbestos may contribute to the development of lung cancer. Further, she did not address the medical evidence showing pleural thickening and pleural calcification in the Veteran’s lungs or the medical literature submitted showing that pleural thickening is a common result of asbestos exposure and may be caused by malignant mesothelioma, a cancer caused by asbestos exposure that affects the lining of the lungs. A remand is, therefore, necessary for an appropriate specialist physician to review the record, including the article submitted by the Veteran, and provide an opinion. This matter is REMANDED for the following action: Request an opinion from an appropriate specialist physician to determine whether any respiratory disorder is at least as likely as not related to service, to include as due to his presumed exposure to asbestos during his service in the military. In formulating this opinion, the physician should address the medical literature submitted by the Veteran showing that pleural thickening is a common result of asbestos exposure and may be caused by malignant mesothelioma, a cancer caused by asbestos exposure that affects the lining of the lungs, and the medical evidence showing plural thickening. A complete rationale should accompany any opinion provided. (Continued on the next page)   The Veteran’s VA claims file and copy of the remand must be made available to the physician for review, and the opinion must reflect that the claims file was reviewed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.