Citation Nr: 21012188 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-57 555 DATE: March 3, 2021 REMANDED Entitlement to service connection for lung cancer, to include as secondary to in-service asbestos exposure, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to June 1980, from October 1982 to September 1983, from November 1990 to March 1991, and from March 2003 to March 2005. He served in the United States Army Reserve (USAR) from 1976 to 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. In February 2020, the Veteran testified at a hearing at the agency of original jurisdiction (AOJ) before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the electronic claims file. In March 2020, the Board remanded this matter for additional development. 1. Entitlement to service connection for lung cancer, to include as secondary to in-service asbestos exposure, is remanded. The Veteran seeks to establish entitlement to service connection for lung cancer. He originally asserted that routine exposure to asbestos, second-hand cigarette smoke, diesel fumes, polychlorinated biphenyls, and his service in the Gulf War resulted in his lung cancer. However, during his February 2020 Board hearing, the Veteran specifically narrowed his contentions, asserting that his primary contention was that his current lung cancer was due to in-service asbestos exposure. He further reported that he has six siblings who also experienced childhood second-hand cigarette smoke exposure but did not develop lung cancer. He also indicated that his post-service work as a registered nurse had no significant exposure to asbestos and was relatively safe from external toxins. His military occupational specialty (MOS) was listed as Medical Specialist and later as Psychiatric Mental Health Nurse. The AOJ indicated that significant exposure to asbestos had not been presumed based on the Veteran’s MOS or service. However, the Veteran and multiple fellow servicemen (to include the facility manager at his duty station) have clearly described exposure to asbestos as well as asbestos removal at his reserve duty station (the 250th General Hospital at 1109 Roeder Avenue in Bellingham, Washington) where he attended weekend drills for twelve years. The Veteran also submitted additional evidence detailing that during demolition of the facility above, hazardous waste consisting of asbestos and lead paints was removed from the building. Post-service private and VA treatment records detailed findings of Stage IV adenocarcinoma of the lung. In a September 2016 VA examination report, the examiner opined that the Veteran’s adenocarcinoma of the right lung with metastasis to pleura was less likely as not incurred in or caused by military service. In the cited rationale, the examiner highlighted that tobacco smoke exposure was the strongest risk factor for lung cancer and that the Veteran was a non-smoker but had significant second-hand exposure as a child in the home and cars, as well as exposure during military and at work. The examiner noted that there were multiple other potential risk factors, including genetic factors, dietary factors and environmental toxins (such as asbestos, polycyclic aromatic hydrocarbons, radon, etc.) but that there was insufficient evidence, scientifically in general or historically in this particular case, to determine the exact cause of the Veteran’s cancer. The examiner concluded that it was most likely that exposures outside of military service were the primary cause of the Veteran’s lung cancer. In March 2020, the Board remanded this matter to verify exposure to asbestos during service and obtain an additional medical opinion to clarify whether the Veteran’s presently diagnosed lung cancer was etiologically related to his asserted in-service asbestos exposure. A July 2020 memorandum reflected a formal finding by the AOJ verifying the Veteran’s exposure to asbestos during service. In a November 2020 VA examination report with December 2020 VA medical opinion, the examiner opined that the claimed condition, adenocarcinoma of the lung, was less likely than not (less than 50 percent probability) incurred while the Veteran was on active duty service. The examiner contended that second-hand smoke caused the lung cancer and not the exposure to asbestosis, due to related genetic disposition. The Board finds that the December 2020 VA medical opinion is inadequate, as the examiner basically reiterated the findings of the inadequate September 2016 VA medical opinion, did not fully consider the Veteran’s contentions regarding in-service asbestos exposure, and provided little rationale for his conclusions. Based on the foregoing, the AOJ should obtain an advisory medical opinion to clarify whether the Veteran’s presently diagnosed lung cancer was etiologically related to his conceded in-service asbestos exposure. The Board has determined that the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Therefore, the AOJ should follow its established procedures for requesting an advisory opinion on remand. 2. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for lung cancer could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined and a remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following actions: 1. The Veteran must be afforded an advisory medical opinion by an appropriate independent medical expert (specifically, a respiratory disease specialist) to clarify the etiology of his lung cancer. The electronic claims file must be made available to the expert, and the expert must specify in the advisory opinion that the file has been reviewed. The AOJ should follow the established procedures for requesting an advisory opinion pursuant to 38 U.S.C. § 5109. Based on a review of the record and with consideration of the Veteran’s assertions, the expert should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lung cancer was causally related to his military service, including conceded in-service asbestos exposure. In doing so, the expert must acknowledge and discuss the findings in the treatise evidence and the September 2016, November 2020, and December 2020 VA examination reports/medical opinions of record, as well as the written statements and February 2020 hearing testimony from the Veteran (who is a registered nurse). Rationale for all requested opinions shall be provided. If the expert cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the expert shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the December 2020 SSOC. If either benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.