Citation Nr: 0831186 Decision Date: 09/12/08 Archive Date: 09/22/08 DOCKET NO. 05-34 058 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a respiratory condition/lung cancer, to include as secondary to asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from March 1952 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 RO decision, which denied a claim for service connection for a respiratory condition/adenocarcinoma. In April 2006, a video conference hearing was held before the undersigned Veterans Law Judge at the Indianapolis, Indiana RO. A transcript of that proceeding has been associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The veteran's currently diagnosed respiratory condition and lung cancer are not related to a disease, injury, or claimed asbestos exposure in service. CONCLUSION OF LAW Service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD), and lung cancer, as related to asbestos exposure is not warranted. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. Letters dated in June 2004, January 2006, March 2006, and March 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service, private, and VA medical records are in the file. All records identified by the veteran as relating to this claim have been obtained, to the extent possible. The Board acknowledges that the veteran has indicated that he is in receipt of Social Security Administration (SSA) benefits. Exhaustive efforts were made to obtain these records. The most recent request resulted in a March 2008 response indicating that these records were unable to be located and that further efforts to locate them would be futile. The Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With a service connection claim, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2007). The veteran was provided a VA opinion in April 2008, which discussed whether or not the veteran has a current asbestos- related condition. The Board finds this opinion to be thorough and complete. The examiner noted that the claims file had been reviewed extensively. Therefore, this examination report and opinion are sufficient upon which to base a decision with regards to this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The veteran is seeking service connection for a respiratory condition/lung cancer, as related to in-service exposure to asbestos. Essentially, he contends that, while serving aboard the USS L.S.T. 527 from March 8, 1952 to July 18, 1955, he was consistently surrounded by steam pipes, wrapped in asbestos, which resulted in his current lung conditions. See veteran's statement, undated; hearing transcript, April 2006. He asserts that his physician specifically informed him that his lung cancer was caused by smoking and exposure to asbestos. Id. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). It is clear from the evidence of record that the veteran has a current diagnosis of a respiratory condition and lung cancer. Specifically, the veteran has been noted as having COPD (emphysema) and squamous cell carcinoma of the lung with local paratracheal advancement, stage IIIB. See VA examination report, April 2008. With regards to the etiology of these conditions, the Board notes that, in a February 2004 letter from Kentuckiana Cancer Institute, PLLC, the veteran's treating physician acknowledged that the veteran reported possible exposure to asbestos while in the Navy and had a history of cigarette use. The physician went on to state that both cigarette use and asbestos have been correlated with an increased risk of lung cancer. In a February 2004 letter from Dr. F.R.R., M.D., it was noted that the etiology of the veteran's cancer was probably multifactorial. This physician stated that it is possible that the veteran's cancer could have been related somehow to exposure in the past, particularly his asbestos exposure, though typically this is not an asbestos-related cancer. He concluded by reiterating that there may be multiple factors that have caused the veteran's cancer of his right lung. In a January 2005 letter from Kentuckiana Cancer Institute, PLLC, a treating physician noted that the veteran was a long- time smoker and that smoking is the main etiologic factor in squamous cell carcinoma of the lung. He went on to note that there have been links with asbestos exposure, particularly mesothelioma, but it is less clear whether asbestos exposure is a causative factor in squamous cell carcinoma of the lung. He concluded by saying that, given the veteran's history of asbestos exposure and smoking, both of these insults are most likely co-morbidities in the development of his lung cancer. In April 2008, the veteran underwent a VA examination. The examiner reviewed the veteran's military, employment, and medical history. She noted that the veteran was a 2 pack per day smoker for 30 years. He quit smoking in 1986 but had considerable second-hand exposure to smoke. Upon review of the evidence, the examiner diagnosed the veteran with COPD (emphysema), squamous cell carcinoma of the lung with local paratracheal advancement, and recurrent pneumonia. She noted that the veteran's non-small cell carcinoma of the lung was initially felt to probably be adenocarcinoma but that the definitive diagnosis is squamous cell carcinoma type. The examiner stated that the predominant cause of both small cell and non-small cell lung carcinoma is smoking. She also stated that there are multiple environmental risk factors but that they account for only a small number of cases each year. COPD increases the risk of lung cancer. Genetic factors can also play a role in the development of lung cancer. The examiner noted that the veteran's risk factors include tobacco use, COPD, genetic predisposition, secondary smoke exposure, and several employment-related exposures of uncertain significance. In conclusion, the examiner found that it is less likely than not that the veteran's lung cancer was caused by or related to asbestos exposure. She also found that there is no objective evidence to support an asbestos-related condition. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In the April 2008 VA examination report, the examiner specifically indicated that she reviewed the claims folder extensively and gave a detailed rationale for her opinions. There is no indication that the private physicians who submitted the February 2004 letters and the January 2005 letter had access to the entire claims file. In addition, the Board finds that the 2 private physicians who submitted letters in February 2004 have not offered definitive opinions indicating that the veteran's COPD or his lung cancer have been caused as a direct result of in-service exposure to asbestos. Instead, the physician from the Kentuckiana Cancer Institute who submitted the February 2004 letter stated that both asbestos and cigarette use have been correlated with an increased risk of lung cancer. Dr. F.R.R., M.D. noted that it is possible that the veteran's cancer could have been related somehow to exposure in the past, particularly his asbestos exposure, though typically this is not an asbestos-related cancer. He went on to note that there may be multiple factors that have caused his cancer of the right lung. Therefore, the Board finds that both of the February 2004 statements are speculative, due to the fact that they discuss the general possibility of a relationship between lung cancer and asbestos and state that the veteran's cancer "could have been related somehow" to asbestos exposure. This is not sufficient to raise a reasonable doubt. See, e.g., Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the appellant may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative). In regards to the January 2005 letter, again the Board notes that this opinion does not appear to be based on a complete review of the claims folder but instead appears to be based on the veteran's report of exposure to asbestos in service. The mere recitation of a veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). In addition, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). Therefore, in light of the fact that the February 2004 private opinions are general and speculative, and none of the private opinions appear to be based on a complete review of the veteran's claims folder, the Board finds the April 2008 VA opinion to be more credible and concludes that there is no objective evidence supporting the veteran's assertion that he currently has an asbestos-related condition and it is less likely than not that the veteran's lung cancer was caused by or related to asbestos exposure. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). Currently, there is no evidence of record indicating that the veteran had a respiratory disability or lung cancer in service and the competent medical evidence of record does not reflect that either his current COPD or lung cancer is related to an incident of service, to include asbestos exposure. Thus, the veteran's claim must fail. See Hickson, supra. In addition, the Board notes that on July 22, 1998, the President signed into law a new provision, codified at 38 U.S.C.A. § 1103, essentially barring service connection on the basis that a disease or injury is attributable to the use of tobacco products during service. 38 C.F.R. § 3.300 (2007). This provision applies to claims filed after June 9, 1998. Therefore, service connection cannot be granted as a result of in-service tobacco use. Although the Board is sympathetic to the veteran's health difficulties, the fact remains that the competent medical evidence of record does not link his current COPD or lung cancer to his active duty service, to include asbestos exposure. The Board acknowledges the veteran's contentions that his current respiratory condition and lung cancer were caused by in-service exposure to asbestos. However, no persuasive medical evidence has been submitted to support this contention. The veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a respiratory condition/lung cancer as a result of exposure to asbestos must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory condition/lung cancer, to include as secondary to asbestos exposure is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs