Citation Nr: 21025092 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-41 623 DATE: April 27, 2021 ORDER Entitlement to service connection for lung cancer, loss of lung is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence of record shows his lung cancer, loss of lung is related to his asbestos exposure in service. CONCLUSION OF LAW The criteria for service connection for lung cancer, loss of lung are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Navy from January 1952 to January 1955. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. Applicable Law and Regulations Direct service connection can be established if the Veteran shows (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran contends service connection for lung cancer, loss of lung is warranted due to in-service exposure to asbestos. An August 2009 operative report indicated he underwent a right upper and right middle lobectomies and mediastinal lymphadenectomy. His post-operative diagnosis was squamous cell carcinoma of the right upper lobe. The Veteran has a current disability of lung cancer status post lobectomy. As such, the first Shedden element is met. He reported serving aboard the USNS General LeRoy Eltinge. This ship was decommissioned at the end of World War II and reactivated during the Korean War. The Veteran reported the ship was in disrepair and decaying. In the sleeping quarters, the steam pipes were encased in aging asbestos. The asbestos would crumble if touched. He reported waking up to find asbestos particles had settled on his blankets and hair. He had to shake his blanket out daily. He would sneeze and cough every time he had to shake his bedding out. Although he was prepared to be a clerk, he denied performing clerical work during his tour on the Eltinge. He reported performing logistical work such as managing issues in the troop compartments, mess halls, and latrines areas. Due to the nature of his work, he worked in the asbestos contaminated areas. He reported asbestos particles were constantly in the air and being recirculated by the ventilation system. His breathing issues started before he was discharged from service and got worse over the years. The Veteran noted his doctor had informed him that his lung surgery was complicated because his lungs had so much scar tissue it was difficult to reseal. In January 1952, the Veteran’s service treatment records show him denying shortness of breath or chronic cough during his enlistment examination. The examination showed normal clinical findings. In August 1954, he complained of general malaise, fever, cough, and a skin rash. An upper respiratory infect was noted about one week prior to his admission. He was diagnosed with infectious mononucleosis. His January 1955 separation examination revealed normal clinical findings except for marks and scars on his arms and leg. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Although the Veteran’s asbestos exposure was not documented in his service records, the Board finds the Veteran to be a reliable historian. Based on his credible reports, the second Shedden element is met. However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the question to be decided in the present appeal is whether the current lung cancer status post lobectomy was caused by or the result of the Veteran’s active service. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for lung cancer is warranted. The Board notes that there are conflicting opinions as to whether the Veteran’s current lung cancer is related to his service. In a March 2017 VA examination, the Veteran was diagnosed with lung cancer in remission. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service, injury, event, or illness. A review of all available records made no mention of a diagnosis of asbestosis. His diagnosed lung cancer is not related to any known exposure while on active duty. The probative evidence of the March 2017 VA examination weighed against finding the Veteran’s lung cancer was related to his service. The examiner relied on sufficient facts and data as well as providing a rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In August 2017, B.C. (MD), the Veteran’s private treating provider, opined based on the facts of his service and his medical history benefits should be granted. B.C. treated the Veteran from 2003 to 2008. In 2009, he was diagnosed with non-small cell lung cancer. He had known asbestos exposure in service. He bunked in a confined area in close proximity to multiple sources of asbestos throughout his service as well as having daily contact during his daily duties. Medically asbestos exposure is a known risk factor for lung cancer, including non-small cell carcinoma. Once an individual has exposure there is an elevated risk throughout the patient’s lifetime. It is reasonable to conclude that the Veteran’s lung cancer is related to asbestos exposure during his time in service. B.C.’s opinion was based on facts of the Veteran’s service and his medical history. Accordingly, the Board affords this opinion positive probative value. Having considered these opinions, the Board concludes that there is at least an approximate balance of positive and negative evidence regarding the question of whether the Veteran’s lung cancer was caused by his in-service asbestos exposure. Therefore, reasonable doubt is resolved in the Veteran's favor and service connection for his lung cancer is warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.