Citation Nr: 18160536
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 13-32 716
DATE:	December 28, 2018
ORDER
Entitlement to service connection for a respiratory condition, to include as due to asbestos exposure, is denied. 
Entitlement to service connection for cause of the Veteran's death is denied.
FINDINGS OF FACT
1. The Veteran was not diagnosed with asbestosis, but was diagnosed with a malignant, solitary fibrous tumor of the pleura.
2. The Veteran’s malignant, solitary fibrous tumor of the pleura did not onset during and was not caused by his service, to include his claimed exposure to asbestos.
3. The Veteran was not service-connected for any conditions at the time of his death.
4. A service-related disability did not constitute the principal or a contributory cause of the Veteran’s death.
CONCLUSIONS OF LAW
1. The criteria for service connection for a respiratory condition, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017).
2. The criteria for service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 101(16), 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served honorably in the U.S. Air Force, and the Board respectfully acknowledges his service to his country. He died in 2012, and the appellant is the Veteran’s surviving spouse, who has been accepted as a substitute in the Veteran’s pending claim for service connection for an asbestos-related respiratory condition. She has also filed a claim for service connection for cause of the Veteran’s death.
The Board notes that the record indicates that the VA Regional Office denied the appellant’s claim for death pension benefits in October 2018. That issue is not before the Board.
1. Entitlement to service connection for a respiratory condition, to include as due to asbestos exposure
Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 
To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372.
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
The appellant contends that the Veteran’s lung cancer was caused by his exposure to asbestos in service.
The appellant submitted evidence supporting the use of asbestos-containing materials at Mount Laguna Air Force Base, where the Veteran served as a maintenance control coordinator in a radar squadron. The Board appreciates the appellant’s efforts in gathering the evidence, and will accept, for purposes of argument, that the Veteran was exposed to asbestos in service. Thus, the remaining question is whether the Veteran’s asbestos exposure caused his respiratory condition.
In his 2011 claim, the Veteran identified his respiratory condition as asbestosis. However, treatment records do not reflect a diagnosis of asbestosis. Rather, private treatment records reflect that in 2006 the Veteran was found to have a low grade, malignant, solitary fibrous tumor of the pleura that was surgically removed. X-rays were again conducted in October 2011, and were noted to show lung changes compatible with tobacco use.
In a September 2012 letter the Veteran’s private physician noted the Veteran had recurrent lung cancer, a history of asbestos exposure for about seven years, and a 45-pack-year history of smoking. The doctor stated that, “It is very possible that the cancer is related to asbestos, although it would be very difficult to prove one way or the other.” The doctor further stated that, “The fact that he had a recurrence of this process is very suggestive that this is related to an ongoing process, likely exposure to asbestos in the past.” Finally, he stated, “I can’t help but think that this is somewhat related to asbestos, at least partly related to that.”
A VA opinion was obtained as to the etiology of the Veteran’s lung cancer in September 2013. The VA doctor reviewed the Veteran’s claims file, including the September 2012 private doctor’s opinion, but concluded that it is less likely than not that the Veteran’s lung cancer was related to asbestos exposure. The doctor cited to a medical literature review that indicates that while low grade, malignant, solitary fibrous tumors of the pleura were previously considered to be mesotheliomas, the cytologic classification has since been reassessed, and they are no longer considered mesotheliomas. Further, the VA doctor stated that medical research indicates that no definitive risk factors for solitary fibrous tumors of the pleura have been identified, and there specifically has been no association with asbestos exposure identified. The VA doctor concluded that, “Given the pathology report which effectively rules out a mesothelioma, and identifies a tumor with no causal relationship to asbestos exposure, it is less likely as not that this unfortunate Veteran’s demise was related to an asbestos related malignancy.”
In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board’s province to weigh the probative value of those opinions. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one examiner’s opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).
Here, the Board finds that the September 2012 private doctor’s opinion has limited probative weight as to whether it is at least as likely as not that the Veteran’s lung cancer is related to asbestos exposure. The doctor described the likelihood of a relationship to asbestos as “very possible” and the cancer’s recurrence is “very suggestive” of being related to “an ongoing process, likely exposure to asbestos.” However, the doctor did not discuss the Veteran’s specific diagnosis or offer any specific rationale as to why there could be a relationship to asbestos exposure. Importantly, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998).  
The Board finds the September 2013 VA doctor’s opinion to be highly probative, as it discussed the Veteran’s specific diagnosis and included citations to recent medical literature supporting that while that specific condition had previously been considered mesothelioma, the classification had recently been reassessed, and current literature does not support that asbestos is associated with malignant, solitary fibrous tumors of the pleura.
The Board acknowledges the Veteran and appellant’s own opinions that the Veteran’s condition was related to asbestos exposure in service; however, the Board finds that as lay persons they do not have the education, training, or experience to opine as to the etiology of a form of cancer. 
The Board does not doubt the sincere belief of the appellant that there is a relationship between the Veteran’s condition and his service. However, the Board finds that the 2013 VA doctor’s opinion is entitled to greater probative weight than the opinion of the 2012 private doctor. There is further no evidence, and the appellant has not argued, that the Veteran’s respiratory condition was otherwise caused by his service. 
As a preponderance of the evidence is against service connection for the Veteran’s lung cancer, the benefit of the doubt doctrine does not apply, and the claim must be denied.
2. Entitlement to service connection for cause of the Veteran's death
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(a).  
The Veteran’s December 2012 death certificate identifies his immediate cause of death as respiratory failure, with an underlying cause of gastrointestinal bleeding. Stage IV lung carcinoma is listed as contributing to his death.
The record reflects that the Veteran was not service-connected for any disabilities at the time of his death. As discussed above, the Board has found that service connection is not warranted for the Veteran’s lung cancer.
Based on the forgoing, the Board finds that service connection for cause of the Veteran’s death is not warranted.

 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Christensen 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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