Citation Nr: 21031217 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-41 931 DATE: May 20, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDING OF FACT The Veteran died in September 2014 from lung cancer, and the probative evidence of record demonstrates that it is at least as likely as not that the Veteran's lung cancer was caused by in-service exposure to asbestos. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.312 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1952 to September 1956. The Veteran passed away in September 2014, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board denied the appellant's claim for service connection for the cause of the Veteran's death, and the appellant appealed that decision to the Court of Appeals for Veterans Claims (Court). In a February 2019 Amended Joint Motion for Remand (Joint Motion), the parties moved the Court to vacate the Board's June 2018 decision. In a February 2019 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. In July 2019, the Board remanded the claim for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. 1. Entitlement to service connection for the cause of the Veteran's death The appellant seeks dependency and indemnity compensation (DIC) benefits as the surviving spouse of the Veteran, who passed away in September 2014 of lung cancer. The appellant asserts that the Veteran's lung cancer was caused by in-service exposure to asbestos. DIC benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Upon review of the record, the Board finds that it is at least as likely as not that the Veteran's lung cancer was caused by in-service exposure to asbestos. Treatment records show that the Veteran was diagnosed with non-small cell lung cancer in 2013. The Veteran's death certificate lists the immediate cause of death as lung cancer. Asbestos exposure is listed as a condition leading to the Veteran's lung cancer. In a December 2014 written statement, the appellant asserted that the Veteran was first exposed to asbestos while stationed at Fort Miles in Lewes, Delaware. She indicated that the Veteran worked on ships and sandblasted them for repair and stated that she was told that the barracks at Fort Miles were torn down because they contained asbestos. The appellant also asserted that the Veteran was exposed to asbestos while serving aboard the U.S.S. Shea in Long Beach, California. She acknowledged the Veteran's smoking history, but noted that the Veteran stopped smoking in 1989 and indicated that the Veteran's oncologist told her that it was rare for the Veteran to have this particular type of lung cancer after quitting smoking 25 years earlier. In an August 2016 written statement, the appellant further asserted that the Veteran was exposed to asbestos particulates from the insulation encompassing the ductwork in his barracks at Fort Miles. In support of this, she submitted two photographs which she contends shows visible asbestos coating the inside of the barracks. Additionally, she identified contract bid documentation for the Delaware Department of Natural Resources wherein the state was attempting to identify a vendor to abate asbestos from the now-abandoned Fort Miles facility. With respect to the Veteran's time aboard the U.S.S. Shea, the appellant provided information obtained from online research regarding asbestos use in U.S. Navy ships like the U.S.S. Shea that were constructed during World War II. Additionally, the appellant cited to sections of the M21-1 Adjudication Procedures Manual regarding asbestos exposure in World War II era ships and the latency period for diseases associated with asbestos exposure. Service personnel records confirm that the Veteran served at Fort Miles and aboard the U.S.S. Shea. Additionally, in the June 2018 decision, the Board already acknowledged that the Veteran was exposed to asbestos during service. In March 2017, a VA physician reviewed the evidence of record and opined that it was less likely than not that the Veteran's lung cancer was related to service. In support of this, the physician noted that the Veteran's military occupational specialty (MOS) of mineman has been characterized as having a minimal risk of exposure to asbestos. He also explained that that lung cancer due to asbestos exposure is most likely to develop between 30 and 35 years after exposure. Moreover, the physician noted that the Veteran had an extensive smoking history, which was a significant risk factor for the development of lung cancer. In March 21018, the Board remanded the claim for another medical opinion that considers the appellant's December 2014 and August 2016 statements regarding the Veteran's claimed asbestos exposure at Fort Miles and aboard the U.S.S. Shea; the portion of the VA Adjudication Procedures Manual acknowledging that asbestos-related diseases may develop from 10 to 45 years or more after exposure; and a February 2018 assertion of the appellant's representative that, according to the National Cancer Institute, "[s]mokers who are also exposed to asbestos have a higher risk of lung cancer than smokers or asbestos exposure alone." In April 2018, the same physician again opined that it was less likely than not that the Veteran's lung cancer was caused by in-service exposure to asbestos. In support of this, the physician explained that although asbestos-related diseases may develop 10 to 45 years or more after exposure, there are many asbestos related diseases, each having its own latency period, and medical literature indicates that the latency period for lung cancer is typically between 15 and 35 years after exposure. The physician also explained that pulmonology reports did not note asbestos-related disease, and the Veteran's lung cancer was not specifically related to asbestos exposure. He also noted that an October 2013 cytopathology report was silent for any evidence of asbestos fibers. In July 2019, the Board again remanded the claim for a new VA medical opinion that addresses "[t]he assertion that there is an increased risk of lung cancer for smokers who are exposed to asbestos," in accordance with the terms of the Board's March 2018 remand directives and the February 2019 Joint Motion. In November 2019, another VA physician reviewed the evidence of record and opined that it was less likely than not that the Veteran's lung cancer was caused by in-service exposure to asbestos. In support of this, the physician explained that the Veteran's MOS had a minimal risk for exposure to asbestos. She indicated that asbestos exposure would likely demonstrate initial lung symptoms, such as cough or shortness of breath, close to date of exposure; however, the Veteran's service treatment records were silent for any complaints regarding a respiratory condition. The physician also explained that asbestos exposure would be reflected on radiographic findings such as pleuritic plaques consistent with a diagnosis of asbestosis; however, the Veteran's radiographic examinations from 2014 through 2017 did not suggest any chronic asbestosis. It was also noted that an October 2013 cytopathology report was silent for any evidence of asbestos fibers. In September 2020, another VA physician indicated that while medical literature indicates that the risk for developing lung cancer is increased for those who smoke and have been exposed to asbestos, this is risk, not a cause. The physician indicated that risk factors increase the likelihood that a condition will develop, but do not cause it. The physician noted that according to the Center for Disease Control (CDC), cigarette smoking is the number one cause of lung cancer, and emphasized that it was a cause, not just a risk factor. Therefore, the physician concluded that the Veteran's history of smoking was most likely the cause of his lung cancer. In May 2021, the appellant submitted an opinion from a private oncologist who reviewed the evidence of record and opined that it was more likely than not that the Veteran's in-service asbestos exposure caused or substantially aggravated his risk for lung cancer and as such, caused or substantially contributed to the cause of his death. In support of this, the oncologist noted that the Veteran had adenocarcinoma, or non-small cell lung cancer, which is a type of cancer that has been strongly associated with asbestos exposure. The oncologist also indicated that the Veteran's treatment records showed interstitial lung disease with ground glass opacities found on CT scans and a diagnosis of bronchiectasis, which are indicative of asbestos exposure. Although the VA physicians who provided opinions in this case relied on the fact that an October 2013 cytopathology report was silent for any evidence of asbestos fibers, the private oncologist indicated that there is no expectation or need to find asbestos fibers in the cancer specimen to attribute causation to asbestos, and even in mesothelioma, the most notorious asbestos-associated malignancy, a diagnosis is not based on finding asbestos fibers in the specimen. The oncologist also cited to medical literature to support the conclusion that the Veteran's latency period of 57 years falls well within the expected range for an asbestos-caused cancer. Finally, the oncologist indicated that although the Veteran's history of smoking contributed to his risk of developing lung cancer, his exposure to asbestos similarly played a causative and contributory role, and he cited to medical literature from the CDC indicating that certain risk factors, including asbestos exposure, may be sufficient causes of lung cancer. The record includes medical opinions that are in favor of and against the claim. Upon review of the record, the Board finds the competent and probative evidence to at least be in equipoise. After resolving all doubt in the appellant's favor, the Board finds that probative evidence demonstrates that it is at least as likely as not that the Veteran's lung cancer, which ultimately resulted in his death, was related to his military service. Accordingly, service connection for the cause of the Veteran's death is granted. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.