Citation Nr: 0203370 Decision Date: 04/12/02 Archive Date: 04/18/02 DOCKET NO. 96-40 587 DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for the cause of the veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Daley, Counsel INTRODUCTION The veteran had active service from August 1960 to August 1964. He died in December 1994; the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Providence, Rhode Island. The appellant withdrew her request for a hearing before a Member of the Board and instead appeared for a personal hearing before an RO Hearing Officer; a transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. All information and evidence necessary for an equitable disposition of the appeal have been obtained. 2. Service connection was not in effect for any disability at the time of the veteran's death in December 1994. 3. The veteran's death was due to the effects of adenocarcinoma of the lung with metastases. 4. The veteran did not serve in the Republic of Vietnam or in the waters offshore of the Republic of Vietnam; he was not exposed to Agent Orange during service. 5. Adenocarcinoma of the lung was not present in service or manifested within one year of the veteran's discharge from service. 6. Adenocarcinoma of the lung was not etiologically related to the veteran's military service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria To establish entitlement to service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused, or contributed substantially or materially to the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To establish entitlement to service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. § 3.303 (2001). Where a veteran served for at least 90 days during a period of war, and a malignant tumor becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (2001). Service connection may also be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a presumptive basis for certain diseases, including respiratory cancer, manifested in a veteran who had active military, naval, or air service, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore and other locations if the conditions of service involved duty or visitation in Vietnam. A veteran with one of the specified diseases, including respiratory cancer, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The respiratory cancer must have become manifest to a degree of 10 percent or more within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2001). The law has since been revised to provide a presumption of herbicide exposure for veterans with the above service but without a presumptive disease and to expand the presumptive period for respiratory cancers to anytime after service. Veterans Education and Benefits Expansion Act of 2001; Pub. L. No. 107-103, Title II, § 201, 115 Stat. 987, 988 (2001) (to be codified at 38 U.S.C. § 1116). The Board notes that for the reasons discussed below, these changes are of no significance in this case. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. VA's Manual 21-1, Part VI, para. 7.21 (October 3, 1997) contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. VA's Manual 21-1, Part VI, para. 7.21(b) (October 3, 1997) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10-to-45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA's Manual 21-1, Part VI, para. 7.21(c) (October 3, 1997) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. VA's Manual 21-1, Part VI, para. 7.21(d) (October 3, 1997) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. See also VAOPGCPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C.A. § 5107(a) (West Supp. 2001). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West Supp. 2001). Factual Background The record reflects that the veteran died in December 1994 from the effects of adenocarcinoma of the lung with metastases. At the time of the veteran's death, service connection was in effect for no disability. Service records reflect the veteran served with the United States Navy from August 1960 to August 1964. He was an aviation machinist's mate assigned to several different squadrons and was at one point stationed in Oceana, Virginia. Service medical records are negative for any complaint, abnormal finding or diagnosis pertaining to the veteran's lungs. The report of examination for discharge, dated in August 1964, shows that the veteran's lungs and chest were found to be normal. Private medical records dated from 1987 to 1992 include note that the veteran was treated in September 1988 for a cough productive of yellow sputum. Records from Miriam Hospital dated in December 1992 note that the veteran incurred a subdural hematoma in 1988. He was admitted for hospitalization in December 1992 with complaints of headaches and difficulty with actions such as writing and walking. His lungs were clear to auscultation at the time of admission. During hospitalization a cerebellar mass was found, felt to be secondary to a recently discovered lung lesion. Computerized tomography revealed a right apex lung mass without evidence of other adenopathy, pleural effusion or other lung mass. Subsequent private medical records and statements show that a diagnosis of adenocarcinoma of the lung with metastases was established. The appellant submitted documents from the World Health Organization and International Agency for Research on Cancer, which, in part, set out that most cancers induced by tobacco smoke are squamous-cell carcinomas. Other submitted information includes a listing of exposures that are, or are possibly, carcinogenic, to include Benzene, paints, dyes, solvents, degreasing agents, engine exhaust, asbestos, gasoline and diesel fuel and exhaust. A letter from the Agent Orange Veteran Payment Program indicates the appellant was not eligible for benefits as the veteran was not shown to have served in or near Vietnam during the period January 1, 1961, to December 31, 1971. R.G. submitted a statement, received in January 1997. He indicated he served from 1965 to 1969 and that his duty assignment required him to work on an airstrip or in an aircraft hanger. He reported he was exposed to cleansers, diesel fuel and fumes, and hydraulic fluids. He indicated he attended schooling at Oceana, Virginia, for a three-month period. He related that after service he was diagnosed with Burkett's lymphoma and was eventually awarded benefits based on disease caused by Agent Orange exposure. Of record is a statement from S.H. who served in the Navy from 1971 to 1975 and worked with aircraft maintenance. He indicated exposure to chemicals without precautions. He also indicated he developed chronic bronchitis after service. The record also contains technical information relevant to types of jet fighters. The appellant appeared for a personal hearing before a Hearing Officer at the RO in January 1997. She reiterated the substance of previously submitted lay statements, documents from the World Health Organization, R.G.'s medical records, and also information relevant to the F8 jet fighter, the type worked on by the veteran. She related that her family physician was deceased and his records were unavailable. In a statement dated in February 1997, P. Eller, M.D. stated that the veteran died of metastatic lung cancer, was exposed to carcinogenic materials for many years while working for the United States Navy, and that it was "certainly possible" that this occupational exposure caused his malignancy. The appellant has submitted the military and medical records relevant to R.G., another veteran who was stationed at the same location as the veteran (Oceana Beach) and who also had cancer that he attributed to radiation exposure from the ship the "Intruder." R.G.'s records reflect service in the United States Marine Corps from December 1965 to December 1969, to include in the Republic of Vietnam, that his duty assignment was as an electrician, and that his diagnosis was Burkett's lymphoma. In a statement dated in September 1996, Dr. Sambandam reported treatment of the veteran since December 1992 for carcinoma of the lung. Dr. Sambandam indicated the veteran had had longstanding bronchitis and a cough. In a statement dated in October 1996, W. Feng, M.D., reported that "[u]pon the request of the patient's wife....I have agreed with her that the patient had a chronic cough and bronchitis which could be related [to] her husband's lung cancer." The appellant asserts that S. Ghorra, M.D., advised her that the veteran's adenocarcinoma of the lung was probably due to scarring that had occurred years earlier. She reported attempting to obtain records from Dr. Ghorra but that that physician had not responded. In multiple statements submitted throughout the appeal, the appellant claims the veteran was exposed to carcinogenic materials to include benzene, asbestos, crude oils, degreasing agents, and exhaust fumes while servicing aircraft during his active duty, and that such caused his lung cancer and led to his death. The appellant submitted an internet news article relevant to an asbestos lawsuit in which the jury awarded over $2.3 million to a former sailor who was diagnosed with mesothelioma, a type of cancer stated to be caused only by asbestos exposure, 30 years after exposure to asbestos as a machinist's mate on an aircraft carrier during active service. She also submitted excerpts from a United States Environmental Protection Agency relevant to the national emission standard for hazardous air pollutants, which includes a listing of respiratory diseases and the associated hazardous exposures. Malignancies of the lung are listed as associated with exposure to asbestos, coal-tar, pitch, asphalt or bitumen or volatiles thereof, nickel, hexavalant chromium compounds or bis chloromethyl ether. Internet materials from a law firm list occupations at risk of asbestos exposure, to include shipyard workers and United States Navy veterans. Other internet materials submitted by the appellant generally define what asbestos is, in what materials it is typically found, and the risks of exposure, to include that it is a known carcinogen. The appellant's claim was referred by the Director of VA's Compensation and Pension service for an opinion from the Chief, Public Health and Environmental Hazards Officer for a medical opinion. The opinion, offered by S. Mather, M.D., M.P.H., is dated in May 1998. Dr. Mather noted the veteran's dates of service and service duty assignment as well as the fact that the veteran was a "light" smoker. Dr. Mather noted that smoking is the most important cause of lung cancer, and that although primarily associated with squamous and small lung cancers, also increases the risk for adenocarcinomas. Dr. Mather also noted that asbestos and other chemicals were recognized as causes for lung cancer and that the veteran's reported exposure to asbestos and other chemicals during military service were "possible" causes of his lung cancer. Dr. Mather cited Calabresi and Schlein, eds., MEDICAL ONCOLOGY (2nd ed. 1993) at page 111 and concluded that, ...we cannot state that such exposures are likely or as least as likely as not to be responsible. Regrettably, medical science currently cannot determine the extent to which many malignancies are due to man made chemicals versus other potentially etiologic factors. Analysis During the pendency of the appeal the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. In addition regulations implementing the VCAA (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001)), were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). The VCAA and the implementing regulations are liberalizing and are therefore applicable to the issue on appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The record reflects that the appellant has been notified of the law and regulations governing entitlement to service connection for the cause of the veteran's death. She has also been advised of the evidence considered in connection with her appeal, and the evidence potentially supportive of her claim. She has submitted treatise and other evidence, to include statements from private physicians. She has stated that her family physician is deceased and his records are unavailable. She has also indicated that efforts to obtain a written opinion from Dr. Ghorra have been unsuccessful. The appellant has specifically been advised as to the enactment of the VCAA and the implementing regulations. She was provided an additional period of time in which to submit additional evidence and argument. A Report of Contact dated in January 2002 reflects that she reported being unaware of any additional evidence which could be obtained to support her claim. Furthermore, the claims file contains the veteran's service medical and personnel records, post-service records of private treatment, and a VA medical opinion speaking directly to the etiology of the veteran's lung cancer. The evidence of record is sufficient to decide the appellant's claim. For the reasons set out above, the Board finds that all duties set out under the VCAA have been met relevant to the claim decided herein. See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001), citing DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001). Relevant to the merits of the claim, the Board first emphasizes that the veteran was not service-connected for any disability during his lifetime and that there is no competent evidence that lung cancer or any other lung disorder was present in service or until many years thereafter. Although the appellant has argued that the veteran's lung cancer was etiologically related to service, as a lay person, she is not qualified to render an opinion concerning medical diagnosis or a medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Moreover, the appellant's assertion of being informed by Dr. Ghorra that the veteran's lung cancer was due to scarring and not to smoking is not competent medical evidence. In this regard, the Board notes a layperson's account of what a physician purportedly said, filtered as it is through the sensibilities of a layperson, does not constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Board also recognizes the appellant's submission of treatise evidence and excerpted internet materials. The generic medical journals/treatise information submitted by the appellant does not specifically address the circumstances in this case and thus can not establish the existence of a medical nexus. Such treatise is informative as background information relevant to various carcinogens and cancers potentially resulting from exposure to such, but does not constitute a probative medical conclusion based on the medical history and findings specific to the veteran. Sacks v. West, 11 Vet. App. 314 (1998); cf. Wallin v. West, 11 Vet. App. 509 (1998). Neither the statement from R.G. nor his medical or service records are probative of the appellant's claim. The appellant argues similarities between R.G.'s circumstances and the veteran's circumstances, particularly citing that both men were stationed at Oceana, Virginia, both worked with aircraft and various toxic chemicals, and both developed malignancies. However, R.G. did not develop lung cancer and his service included service in Vietnam. The statement from S.H. is also not probative of the appellant's claim. S.H. served many years later than the veteran and reports only that he developed bronchitis that he attributes to in-service exposure to chemicals used in aircraft maintenance. Neither R.G. nor S.H. has been shown to possess the requisite medical expertise to establish a causal nexus between the veteran's death and any in-service toxic exposures. Moreover, entitlement to service connection is governed by specific statutory and regulatory authority as applied to the particular facts of each veteran's case. The Board distinguishes R.G.'s situation in that R.G. was stationed in the Republic of Vietnam and developed a cancer presumptive to herbicide-exposed Vietnam veterans. There is no indication in the veteran's service records that he served in Vietnam or in the waters offshore of Vietnam. Moreover, at the time of her 1997 hearing she indicated the veteran had not served in Vietnam. Thus, the veteran is not presumed to have been exposed to an herbicide agent during service, and there is no reason to find that he was so exposed. With respect to S.H.'s statement, it appears the appellant seeks to use such to establish a connection between in- service exposure to various carcinogens, the development of chronic bronchitis and then the development of lung cancer. The record does contain an opinion offered by Dr. Sambandam, that the veteran had a chronic cough and bronchitis that could be related to lung cancer. Other records state that at the time of diagnosis of lung cancer, the veteran had a long- standing cough. Even accepting such statement as based on an accurate history, service medical records do not document any respiratory disorder, there is no contemporaneous medical evidence of any respiratory disorder until many years following the veteran's discharge from service and Dr. Sambandam did not link a chronic cough and/or bronchitis to the veteran's active service. Dr. Sambandam's statement is merely a general indication that the veteran had had longstanding bronchitis at the time of initial treatment in December 1992, without any assertion of the approximate onset or cause of such bronchitis. As such, it is not supportive of the appellant's claim that in-service carcinogenic exposure resulted in lung cancer. The article pertaining to an asbestos award made to a sailor is not relevant to the etiology of the veteran's lung cancer. The veteran's service records do not show that he was stationed on a ship and do not otherwise indicate that he was exposed to asbestos. In any case, the Board notes the absence of any diagnosed asbestosis in the record, and the absence of any medical opinion suggesting more than the possibility of a nexus between the veteran's exposure to asbestos and his development of lung cancer. The appellant's argument primarily centers on the veteran's exposure to various carcinogens, such as the fuels and/or exhaust from airplanes worked on by the veteran during service, rather than exposure to asbestos or herbicides. She argues that toxic exposure to various chemicals used as a machinist's mate led to the development of the veteran's lung cancer. There are two opinions directly speaking to the etiology of the lung cancer leading to the veteran's death, one offered by Dr. Eller and the other by the Dr. Mather, the Chief, Public Health and Environmental Hazards Officer. Dr. Eller opined only that it was "certainly possible" that the veteran's in-service occupational exposure caused his malignancy. It does not appear Dr. Eller reviewed the veteran's service records, or had the benefit of review of records dated from service discharge and up to the time of the diagnosis of lung cancer. Moreover, Dr. Eller did not identify the toxins to which the veteran was allegedly exposed during service; discuss other pertinent factors such as any post-service occupational exposure, the veteran's smoking history, etc.; or otherwise support his opinion. Finally, Dr. Eller phrased his opinion only in terms of possibility. Thus, Dr. Eller's opinion is merely speculative, lacking any citation of medical principles or documented facts of the veteran's case. Therefore, his opinion is of little probative value. The opinion from Dr. Mather is more probative. It is based on a review of the entire evidentiary record, to include consideration of medical treatises pertinent to the development and causes of lung cancer. Dr. Mather specifically considered facts such as the dates of the veteran's service and place and type of duty assignment, to include claimed exposure to toxic substances. Dr. Mather also considered that the veteran was reported to be only a "light smoker." Nevertheless, Dr. Mather specifically noted that even light smoking increases the risk of adenocarcinoma and that although in-service exposure to asbestos and other chemicals could be a "possible" cause of lung cancer, she was not able to say even that it was "as least as likely as not" that such in-service exposure was responsible for the veteran's cancer. No other physician of record has opined that it is at least as likely as not that the veteran's lung cancer was etiologically related to service. For these reasons the Board must conclude that the preponderance of the evidence is against the appellant's claim. The Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the veteran's death is denied. Shane A. Durkin Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.