Citation Nr: 0946555 Decision Date: 12/08/09 Archive Date: 12/18/09 DOCKET NO. 04-16 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for flat feet. 2. Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) from decisions of April 2000 and January 2003 of the Department of Veterans Affairs (VA). The RO and the Board have deemed the Veteran's testimony at a hearing before a hearing officer in May 2004 to be a timely substantive appeal with regard to the Veteran's flat feet and lung claims. An October 2008 Board decision denied a compensable initial rating for hearing loss but remanded the claims of whether new and material evidence has been submitted to reopen a claim for service connection for flat feet and service connection for lung cancer. The case has now been returned for appellate adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not appeal an April 1950 rating decision which confirmed and continued a denial service connection for flat feet; and that decision is final. 2. The additional evidence received since the April 1950 rating decision is either cumulative or redundant, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The evidence of record shows that the Veteran was not exposed to ionizing radiation or asbestos during service and asbestosis is not shown. 4. Lung cancer was not affirmatively shown to have been present during service, and lung cancer is first shown decades after service; and lung cancer is unrelated to a disease, injury or event during service, including alleged inservice exposure to radiation, asbestos, and diesel oil and diesel fumes. CONCLUSIONS OF LAW 1. The RO rating decision in April 1950 confirming and continuing a denial of service connection for flat feet became final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. § 3.104(a) (2009). 2. The additional evidence presented since the April 1950 rating decision confirming and continuing a denial of service connection for flat feet is not new and material, and the claim of service connection for flat feet is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. Lung cancer was not incurred or aggravated in active service and service connection for lung cancer may not be presumed based on the one-year presumption for a chronic disease and service connection may not be presumed based on inservice exposure to radiation. 38 U.S.C.A. §§ 1110, 1112(c), (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) and (d)(2)(xx), 3.311 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the claim for service connection for lung cancer, the Veteran was provided with pre-adjudication VCAA notice by letter, dated in June 2002 which notified him of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. He was also notified of what he could do to help substantiate this claim and what VA would do to assist him. As to the application to reopen the claim for service connection for flat feet, the case was remanded in October 2008, in part, to provide the Veteran with appropriate notice pursuant to the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006). This was done by letter dated later in October 2008 which informed him of the reason for the prior denial, what was needed to substantiate the claim, and VA's obligations to assist him. That letter also informed the Veteran of the means of determining effective dates and disability ratings. While the 2008 letter was after the adjudication leading to this appeal, an error in failing to afford a preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication. See Mayfield v. Nicholson, 499 F.3d at 1323-24; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004). In this case the notification was prior to readjudication of the claims in the Supplemental Statement of the Case in September 2009. As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, 483 F.3d 1311, 2007 WL 1016989 (C.A. Fed. 2007). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claims. The Veteran was afforded the opportunity to testify at a personal hearing in support of his claims. The RO has obtained the service treatment records and VA treatment records. Because the Veteran reported having been treated at Camp Elliot during service for flat feet, the RO contacted the National Personnel Records Center (NPRC) to locate those records. However, the NPRC replied that such records could not be located and either did not exist or that NPRC did not have them, and that further efforts to locate them at the NPRC would be futile. Pursuant to the October 2008 Board remand, the Veteran was provided with notice compliant with the holding in Kent, Id. Also, the RO obtained VA treatment records. However, records of alleged VA treatment in 1966 could not be found. Also, private clinical records are on file, including records from Dr. Kish, as requested in the Board remand. Moreover, the Veteran was afforded a VA examination as to his claim for service connection for lung cancer and a medical nexus opinion was obtained. Accordingly, there has been compliance with the 2008 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998)). However, no examination was requested in connection with the application to reopen the claim for service connection for flat feet. This is because under the duty to assist, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented, and that is not the case here. See 38 C.F.R. § 3.159(c)(4)(iii). As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background Examination for service induction in September 1943 found that the Veteran had 1st degree hallux valgus and 1st degree pes planus. Another clinical record dated September 1943 reflects that he had asymptomatic 3rd degree pes planus. In August 1945 the Veteran underwent treatment on five occasions with infrared heat to the dorsum of both feet. Inservice chest X-rays were negative. The examination for service discharge revealed no abnormality. A service record shows that the Veteran was on the USS Specter which in December 1945 participated in clearing mines from the Tsushima Straits, in Korea. A June 1947 VA outpatient treatment evaluation found that the Veteran had 3rd degree pes planus of the right foot and 2nd degrees pes planus of the left foot. There was a loss of the transverse arch of each foot and he needed arch supports. The Veteran was notified in July 1947 that the claim for service connection for pes planus was denied. The Veteran did not appeal that decision. The Veteran was notified in August 1948 that the denial of service connection was confirmed and continued. The Veteran did not appeal that decision. In a January 1949 statement Dr. L. W. J. reported that the Veteran had been in the military service from 1943 to 1946 and had never had any foot trouble before. During service in 1945 he failed his demolition training because of flat feet. He had been treated in a dispensary for painful feet. He had been treated once a week for 10 weeks. After service he returned to work for the railroad, working there from April 1946 to April 1948 but quit to go to school because his feet bothered him too much. Since then, he had been going to masonry school. Currently, he had pain in his arches, especially during the summer. He could walk about one mile but then became tired. He had been rejected for treatment of his feet by VA. He had had pads put into his shoes but this had not helped. On examination he had pronation of each foot to a degree constituting 2nd degree pes planus. His feet were flexible. His heel cords were not short. There was tenderness to pressure over each os calcis. The diagnosis was 2nd degree pes planus which was symptomatic. The prognosis was that he would probably always have some mild aching of his feet. The Veteran was notified by RO letter of February 1949 that his claim was previously denied because his condition of the feet had existed prior to service and was not aggravated during service. The additional evidence from Dr. L. W. J. did not warrant any change in the determination. The Veteran did not appeal that decision. A service comrade, J. C. reported in a sworn statement in April 1949 that he had served with the Veteran. The Veteran had been treated at a dispensary for a period of 10 weeks for his feet. During this visits he received 4 shots in each leg, two pair of arch supports, and sun lamp treatments. The treating physician had also requested that the Veteran be kept on light duty. The Veteran was notified by RO letter of April 1949 that his claim was previously denied because his condition of the feet had existed prior to service and was not aggravated during service. The additional evidence from a service comrade did not warrant any change in the determination. The Veteran did not appeal that decision. After the receipt of additional service information the Veteran was notified by RO letter of April 1950 that the denial of his claim for service connection for flat feet was confirmed and continued. The Veteran did not appeal that decision. A February 1951 service clinical record, in conjunction with the reserves, found that the Veteran had 2 degree pes planus which was not considered disqualifying. When hospitalized at the Mercy Hospital in March and April 1985 chest X-rays revealed findings of atelectasis of the right lobe. It was felt to represent Mycoplasma pneumonia. Pulmonary function testing revealed very mild chronic obstructive pulmonary disease (COPD) patter. A private chest X-ray in December 1987 revealed scarring in the right lower lung. In November 1997 the Veteran's claim for service connection for a respiratory condition was received. In that claim he alleged that his lung cancer was due to inservice radiation exposure. He stated that he was stationed in Sasebo, near Nagasaki, Japan, two months after the atomic explosion. He was stationed there from October 22, 1945, to April 1946. A November 1997 VA outpatient treatment record reflects that the Veteran reported having been in the area of an atomic explosion for 2 months after the detonation. He inquired whether his lung problem could be related to this. In December 1997 he complained of exertional dyspnea and it was reported that he had been exposed to asbestos. A January 1998 VA pulmonary function test revealed a mild obstructive defect. The Veteran was notified in August 1998 of a rating decision that month which denied service connection for COPD, claimed as due to inservice ionizing radiation exposure. He did not appeal that decision. The Veteran was notified in November 1998 of a rating decision that month which confirmed and continued the denial of service connection for COPD, claimed as due to inservice ionizing radiation exposure. He did not appeal that decision. The Veteran applied to reopen the claim for service connection for flat feet in November 1999. In March 2000 the Veteran submitted duplicate service treatment records and a statement that he had been in the Navy for 2 years when he started having trouble with his feet. He had received cortisone shots in both feet. After service he had been treated by three physicians, all of whom were deceased, who had also given him cortisone shots and other medications. He had received VA treatment since 1998, including injections of cortisone. A February 2000 VA outpatient treatment record noted that the Veteran had a history of having had a burning sensation in his feet since the age of 20. On examination he had decreased sensation to pinprick and temperature, distally, in both lower extremities. The impressions were peripheral neuropathy and questionable restless leg syndrome. An April 2000 rating decision denied reopening of the claim for service connection for flat feet was appealed, leading to this decision. The Veteran participated in a January 2001 teleconference with the RO. In July 2001 the Veteran submitted a duplicate of the January 1949 statement from Dr. L. W. J. Statements in February 2002 from Dr. D. E. P. reflect that the Veteran was an ex-smoker. A CAT scan had shown an abnormality in the upper lobe of the left lung. Surgery might be required. Dr. D. E. P. reported in April 2002 that the Veteran had had a left upper lobectomy in March 2002 for stage I non-small cell lung cancer. In the Veteran's April 2002 claim for service connection for lung cancer he reported that a PET scan had revealed a mass in his left lung and after surgery in March 2002, the mass was found to be lung cancer. The upper 1/3 of his left lung had been removed. In a June 2002 statement the Veteran reported that he believed his lung cancer was from inservice ionizing radiation exposure. He had been in Sasebo, Japan, which was about 10 miles from Nagasaki, Japan, about 20 times over a period of 6 months because Sasebo was the home port for the ships he was on, the USS Specter (AN 306) and the USS Refresh (AN 287). A November 2002 VA outpatient treatment record reported that the Veteran's lung cancer was due to long-term smoking of tobacco. The Defense Threat Reduction Agency reported in December 2002 that the Veteran had served aboard the USS Specter form November 12th to December 10th 1945 and aboard the USS Refresh from December 10th to April 6th 1946. Those ships conducted minesweeping operations in the vicinity of Sasebo while the Veteran was aboard them. Sasebo was approximately 180 miles from Hiroshima and 30 miles from Nagasaki. 38 C.F.R. § 3.309(d)(3)(vi) was quoted. In the Veteran's Notice of Disagreement to the January 2003 rating decision denying service connection for lung cancer, he reported that Dr. D. E. P. had informed him that his lung cancer was due to inhaling diesel fumes. At a May 2004 RO hearing the Veteran testified that he was being treated by VA for pes planus. He stated that he did not remember having flat feet when he entered active service. His feet first became an issue after being in the Navy for two years, with symptoms of pain and burning. He had received inservice injections into his feet. After service he had been employed for 50 years as a bricklayer. Page 2 of that transcript. He had first been diagnosed as having lung cancer 2 1/2 years ago, followed by surgical removal of part of his left lung. It was now in remission. He had smoked heavily during and after service. Page 3. His physician had stated that the Veteran's lung cancer was from inhaling diesel fumes. The Veteran stated he had inhaled quite a bit of diesel fumes during service in the Navy. He also felt that he may have drank water contaminated by radiation when he was in Sasebo, Japan, which he stated was 30 miles from Nagasaki or Hiroshima. Page 4. He had started having problems with his feet after about 2 years and 9 months of military service but he had not had problems during basic training. Page 5. While he was onboard the U.S.S. Refresh he had been sent to another ship, the name of which he could not remember, for treatment of his feet. Page 6. A physician on that ship had given him pills but after an examination had not told the Veteran what the problem was. Shortly after service he sought VA treatment for his problems with his feet and was told that he had fallen arches. Page 7. During service he had been treated for his feet at Camp Elliot. Page 8. In statements in June 2004 Dr. D. E. P. stated that he met the Veteran when he was 76 years of age and he had stopped smoking 2 decades earlier. He had some history of occupational dust exposure during service. He developed non- small cell lung cancer in the upper lobe of the left lung, for which he had a lobectomy. The etiology of the lung cancer was not entirely clear because as a person approached two decades out of non-smoking, the incidence approaches that for persons who had never smoked. Of course, a second possibility was his prior active duty exposure. Unfortunately, there was no definitive test that would reliably answer these questions. While the exact etiology might never be known, exposure to non-cigarette carcinogens was at least a possibility. The Veteran has submitted articles from the Internet concerning the development of cancer and exposure to diesel engine exhaust. In a July 2004 statement Dr. D. E. P. stated that diesel oil contained polycyclic aromatic hydrocarbons (PACs) which cause lung cancer. The Veteran was heavily exposed to diesel oil during service. He further stated that: I have included a modest number of articles from the medical and scientific literature linking diesel oil exposure to development of lung cancer. Without reservations, with 15 years of thoracic surgery experience with over 4000 operations, and with complete honesty, I believe [the Veteran] is entitled to some compensation for his active duty exposure. In an August 2004 statement the Veteran reported that he had inhaled diesel fumes only during his active service. In an April 2005 statement he stated that his felt his lung cancer was due to "nuclear" exposure. The Veteran was afforded VA pulmonary function testing in July 2009. The case was referred to a VA physician for an opinion later in July 2009. The physician reported that he had seen the Veteran from 1999 thru 2004. He had had a resection of the left lung. He had smoked for 25 years, as much as 3 packs per day, and had claimed asbestos exposure. He had quit smoking around 1968. The physician stated that he saw no record of the cell type of the lung cancer and he was not a specialist in occupational medicine or oncology. His review of literature on the effect of diesel exposure suggested there was an elevated risk of lung cancer relative to no exposure with risk ratio being around 1.5, but there was very little date on exposure duration, and risk, and no data suggesting that diesel exposure would be anywhere near as likely a cause of lung cancer as cigarette smoking. The statements of Dr. D. E. P. and articles submitted were reviewed. These records indicated that the Veteran had smoked for 35 years and had quit smoking in 1975. After a further view of the records, the VA physician stated that the lung cancer was squamous cell cancer. There was no evidence of recurrence of the cancer. There were no notes from Dr. D. E. P. relating to diesel exposure. It was acknowledged that the Veteran had been exposed to diesel powered boats during World War II. With the present evidence, the VA physician did not believe that exposure to diesel fumes was the likely cause of the Veteran's lung cancer. It was more likely, greater than 50 percent, the result of cigarette smoking. Reopening The RO originally denied the claim of service connection for flat feet in July 1947. The most recent denial was in April 1950 when reopening of the claim was denied. The Veteran did not appealed the April 1950 denial and by operation of law, that rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a). New and Material Evidence Claim An unappealed rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c). New and material evidence is required to reopen a previously denied claim. 38 U.S.C.A. § 5108. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The ultimate weight to be accorded evidence is a question of fact that must be determined after the claim is reopened and readjudicated based on all of the evidence on file. Id. at 513. After a series of either RO or Board final denials, or both, the issue is not whether the evidence since the original denial of service connection is new and material. Rather, 38 U.S.C.A. § 5108 limits the review to whether the evidence submitted since the most recent denial on any basis, including a denial of reopening, is new and material. See Evan v. Brown, 9 Vet. App. 273, 285-86 (1996) (in effect overruling the holding in Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994) (holding that the evidence considered as new is that since the most recent denial on the merits)). As to applications to reopen a previously denied claim received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The current application to reopen the claim of service connection for flat feet was received at the RO in November 1999, prior to August 2001. Accordingly, the definition of new and material evidence which was in effect prior to August 2001 must govern. Prior to August 29, 2001, 38 C.F.R. § 3.156(a) provided that new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." If not established, a showing of continuity of symptoms after service discharge is required. Service connection may be granted for any disability diagnosed after discharge, when all of the evidence establishes it was incurred in service. 38 C.F.R. § 3.303. However, not every manifestation of abnormality of a cough, in service will permit service connection for pulmonary disease, first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Certain conditions, such as lung cancer, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection requires that there be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Radiation Service connection for disability due to inservice ionizing radiation exposure can be shown by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, certain types of cancer are presumptively service connected where a person is a "radiation-exposed veteran" which is defined at 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). This includes lung cancer. 38 U.S.C.A. § 1112(c)(2)(T) and 38 C.F.R. § 3.309(d)((2)(xx). A radiation exposed veteran is one who engaged in a radiation-risk activity and this includes the occupation of Hiroshima or Nagasaki, Japan, from August 6, 1945, and ending on July 1, 1946. 38 U.S.C.A. § 1112(c)(2)(A) and (B)(ii). The term ``occupation of Hiroshima or Nagasaki, Japan, by United States forces'' means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials. 38 C.F.R. § 3.309(d)(3)(vi). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Certain cancers are listed as radiogenic diseases under 38 C.F.R. § 3.311(b)(2) and the list includes cancer of the lung. 38 C.F.R. § 3.311(b)(2)(iv). For the provisions of claim development, the diseases listed at 38 C.F.R. § 3.311(b)(2) must, under 38 C.F.R. § 3.311(b)(5)(iv), manifest five (5) years or more after last exposure, except for bone cancer (must manifest within 30 years of exposure), posterior subcapsular cataracts (must manifest 6 months or more after exposure), and leukemia (may manifest at any time after exposure). Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is otherwise shown that lung cancer, even if first diagnosed after service, is otherwise the result of military service, including inservice ionizing radiation exposure (or other inservice event such as exposure to asbestos or some carcinogen). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Asbestos Regarding 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 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that provided 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, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate claims for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1 provides that when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). The M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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). See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 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, Part VI, par. 7.21(b)(1). Also, the M21-1 provides that for a clinical diagnosis of asbestosis, the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); that the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and that exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). However, the Court has held that the M21-1 does not create a presumption of inservice exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, an appellant must first establish that the disease was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 04-2000 (April 13, 2000) it was held that M21- 1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. The Board must determine whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the preponderance of the evidence supports of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If it is found that the preponderance of the evidence is against the claim, the Board has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Reopening Analysis The evidence on file in 1950 established that the Veteran's bilateral flat feet were noted on the service entrance examination and, so, the presumption of a veteran being in sound condition at service entrance was not applicable. While he was treated during service, the evidence did not establish that there was a permanent increase in severity of the flat feet due to the Veteran's military service, which is a prerequisite for establishing aggravation of a pre-existing condition. The additional evidence since the April 1950 rating decision documents the continued existence of bilateral flat feet but this was not a matter in dispute. Thus, the evidence, including the Veteran's statements and testimony of having had treatment for flat feet since service is not material because it has no bearing on whether the flat feet were aggravated during service. Also, the 1951 service clinical record, when the Veteran was apparently in the Navy reserves, also merely documents that he still had pes planus. In fact, this record tends to show that the Veteran's flat feet were not aggravated during his earlier active duty in the mid- 1940s because in 1951 his flat feet were not considered disqualifying for service in the reserves. The Veteran's statements and testimony elaborating upon his inservice treatment for pes planus also is not new and material because the fact that he was treated during his active service was already well established. The duplicate service treatment records are not new and the additional VA outpatient treatment records indicating that he had some form of neuropathy in the lower extremities, either peripheral neuropathy or restless leg syndrome, are not shown to be relevant to the question of inservice aggravation of bilateral pes planus (flat feet) and, so, are not material. Accordingly, in the absence of new and material evidence, the application to reopen the claim for service connection for flat feet must be denied. In the determination of whether a claim should be reopened the benefit-of-the-doubt standard does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Lung Cancer In essence, the Veteran has asserted three potential causes of the lung cancer which indisputably first manifested many years after his active service. He asserts that it may be due to inservice exposure to radiation, inservice exposure to asbestos or inservice exposure to diesel fumes. Initially, the Board observes that the Veteran's having been in Sasebo, Japan, does not qualify him as having engaged in a radiation-risk activity or qualify him as being a radiation exposed veteran. Despite his suggestion that he was exposed to contaminated water, the governing statute and regulations are clear that merely having been in Sasebo, Japan, which is more than 10 mile from both Hiroshima and from Nagasaki, does not qualify the Veteran as having been part of the occupational forces of those cities. Accordingly, the Board concludes that the statutory presumptions governing radiation exposed veterans are not applicable in this case. Similarly, because he is not a radiation exposed veteran, did not engage in a radiation risk activity, and was not part of the occupational forces of Nagasaki or Hiroshima, development of the claim under 38 C.F.R. § 3.311 was not required. Also, there is no competent evidence that the Veteran's lung cancer, which manifested decades after service is related to any putative inservice ionizing radiation exposure. Specifically, no physician had rendered an opinion asserting this nor is there otherwise competent evidence on file supporting this hypothesis. As to exposure to asbestos, the evidence simply does not show that the Veteran was exposed to asbestos during his active military service. Thus, while lung cancer is a disease associated with such exposure, absent evidence of inservice exposure, there can be no competent evidence of a nexus between these two. Moreover, no physician had rendered an opinion asserting this and there is virtually no radiological evidence confirming the existence of particles of asbestos in the Veteran's lungs. Next, addressing inservice exposure to diesel fumes as a carcinogenic causing the Veteran's lung cancer, the Board concludes that the Veteran was most probably exposed to diesel fumes during his active service. Dr. D. E. P. stated in June 2004 that even though the Veteran had been a smoker for many years, his inservice diesel oil or diesel fume exposure was a possible cause, although the exact etiology might never be known. Later in July 2004 that physician stated that there was some literature linking such exposure to the development of lung cancer and he went on to state that he felt that the Veteran was entitled to compensation. However, he stopped short of actually stating that in his opinion there was such a causal, medical or etiological connection which was more than a mere possibility. It must be noted that to prevail, it must be shown that the Veteran's military service, including some event such as exposure to a carcinogenic agent, was the cause of the development of the claim disability, i.e., lung cancer, many years after service and that the evidence establishes that such a causal nexus was at least as likely as not. However, the existence of a mere possibility falls far short of this standard. Dr. D. E. P. has not stated, or even suggested, that the possibility of such a nexus is at least as likely as not. This was essentially the conclusion of the VA physician in 2009 who opined that such exposure was not the likely cause of the Veteran's lung cancer but, rather, the Veteran's past history of cigarette smoking was the more likely cause. In sum, the opinion of Dr. D. E. P. was merely speculative whereas the opinion of the 2009 VA physician was specific, in stating that smoking was more likely the cause of the Veteran's lung cancer. The Veteran is competent to describe respiratory symptoms; however, lung cancer is not a condition under case law that has been found to be capable of lay observation. To the extent that he relates his lung cancer to military service, including inservice exposure to ionizing radiation, asbestos or diesel fumes, where as here the determination involves questions of a medical diagnosis, not capable of lay observation, or of medical causation, a lay assertion on medical causation is not competent evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Competent medical evidence is required to substantiate the claim and is provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As a lay person, the Veteran is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis, not capable of lay observation, or on medical causation. For this reason, the Board rejects the Veteran's statements as competent evidence to substantiate the claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that Dr. D. E. P. asserts a causal, medical or etiological connection between the Veteran's inservice exposure to diesel fumes and his subsequent development of lung cancer, as opposed to the lung cancer being from smoking tobacco products, the VA examiner's opinion, supported by the opinion recorded in a VA outpatient treatment record, associates the Veteran's lung cancer with his cigarette smoking. As to claims received after June 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. 38 U.S.C.A. § 1103 (West 2000) and 38 C.F.R. § 3.300 (2009). Here, the claim for service connection for lung cancer was received in 2002, after the June 1998 cut-off date. As to the question of whether service connection may be granted on the basis that lung cancer was first diagnosed after service, considering all the evidence, lung cancer was first documented decades after service and, for the reasons discussed, the competent medical evidence against the claim outweighs the favorable competent evidence, from Dr. D. E. P., that associates lung cancer to inservice exposure to diesel fumes. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER As new and material evidence has not been presented, the application to reopen the claim of service connection for flat feet is denied. Service connection for lung cancer is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs