Citation Nr: 0947557 Decision Date: 12/16/09 Archive Date: 12/31/09 DOCKET NO. 06-21 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of lung cancer. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1942 to October 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St Paul, Minnesota which, in part, denied service connection for residuals of lung cancer. In May 2009, the Board granted the Veteran's motion to advance this appeal on its docket due to his advanced age. See 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2009). In June 2009, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2009). That opinion has been obtained and will be discussed below. On September 14, 2009, the Board wrote to the Veteran, providing him with a copy of the VHA opinion and soliciting additional evidence and/or argument. Cf. Thurber v. Brown, 5 Vet.App. 119 (1993). The Veteran did not respond within the 60 day period provided. Issue not on appeal In the above-mentioned February 2006 rating decision, the RO also denied the Veteran's claim of entitlement to service connection for pleural plaques. The Veteran indicated his disagreement with this decision and a statement of the case (SOC) was issued in May 2006. In a May 2006 rating decision, the RO granted service connection for pleural plaques. A noncompensable (zero percent) disability rating was assigned. The Veteran has not filed a notice of disagreement with the initial disability evaluation assigned for his service- connected pleural plaques. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. Therefore, this matter has been resolved and is not in appellate status. FINDING OF FACT The competent evidence of record does not support a finding that a relationship exists between the Veteran's lung cancer or residuals thereof and his military service. CONCLUSION OF LAW Lung cancer, or residuals thereof, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for lung cancer residuals. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires 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 VA 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. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the Veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated May 5, 2005, including a request for evidence of a relationship between his current disability and an injury, disease, or event in military service. Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claim in the above-referenced May 2005 letter, whereby the Veteran was advised of the provisions relating to the VCAA. Specifically, the Veteran was advised that VA would assist him with obtaining "relevant records from any Federal agency. This may include medical records from the military, from VA Medical Centers (including private facilities where VA authorized treatment), or from the Social Security Administration." With respect to private treatment records, the letter informed the Veteran that the VA would make reasonable efforts to obtain private or non-Federal medical records to include "records from State or local governments, private doctors and hospitals, or current or former employers." Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The May 2005 letter further emphasized: "If [there is] evidence [that] is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original letter] In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's service connection claim, elements (1) and (2), veteran status and existence of a disability are not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the Veteran's claimed lung cancer residuals. In other words, any lack of advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. The Veteran's claim of entitlement to service connection was denied based on element (3) a connection between the Veteran's service and the claimed disability. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to this crucial element. Because as discussed below the Board is denying the Veteran's claim, elements (4) and (5) remain moot. In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the Veteran's service treatment records, VA outpatient medical records, private medical records, provided him with two VA examinations and obtained a VHA opinion. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations in May 2005 and June 2006 and a VHA opinion was obtained in August 2009. The reports of this examinations and medical opinion reflects that the physicians reviewed the Veteran's past medical history, recorded his current complaints, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examinations and opinion are adequate for rating purposes. See 38 C.F.R. § 4.2 (2009). The Veteran and his representative have not contended otherwise. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined to exercise his option of a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). In order to establish service connection for the claimed disorder, there must be (1) competent and credible 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) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases 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). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis With respect to Hickson element (1), the Veteran's private medical records indicate that a left lung nodule was identified in a September 1999 chest x-ray. An April 2000 follow-up x-ray report indicated that the nodule had increased in size. The Veteran was subsequently diagnosed with non-small cell lung cancer and underwent a left upper lobectomy in June 2000. In addition to the diagnosis of non-small cell lung cancer, the Veteran has been diagnosed with chronic obstructive pulmonary disease (COPD). See the May 2005 VA examination. The evidence of record also contains conflicting reports as to whether the Veteran has asbestosis. By law, the Board is obligated under 38 U.S.C.A. § 7104(d) to analyze the credibility and probative value of all medical evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993), and Colvin v. Derwinski, 1 Vet. App. 171 (1991). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the June 2006 VA examiner diagnosed the Veteran with asbestosis. No explanation for this diagnosis was provided. In contrast, Dr. W.C.P., Chief of Respiratory Service at a VA Medical Center, stated in his August 2009 opinion that "asbestosis results from long term, heavy exposure to asbestos and produces scarring of the lung in the mid/lower lung zone which can be seen on chest X-ray." However, as noted by Dr. W.C.P., scarring of the mid/lower lung zones has never been noted on any of the Veteran's x-rays and pulmonary function studies reveal he has obstructive lung disease, not restrictive lung disease." Furthermore, the Veteran's asbestos exposure was described as mild, at best. It was noted that in order to develop asbestosis, "near daily exposure to aerosolized asbestos fibers is required for many years [and] it is extremely rare for [individuals] with less than 10 years of exposure to develop asbestosis." Accordingly, based on the Veteran's symptomatology and his exposure history, Dr. W.C.P. ruled out asbestosis as a possible diagnosis. Because of his detailed explanation as to why the Veteran does not have asbestosis, the Board finds the August 2009 VHA opinion to be more probative than the opinion of the June 2006 VA examiner who did not explain the basis for her diagnosis. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [whether the physician provides the basis for his/her opinion goes to the weight or credibility of the evidence]. In addition, the August 2009 VHA opinion appears to be congruent with the objective evidence of record, which does not contain a diagnosis of asbestosis other than that provided by the June 2006 VA examiner. Notwithstanding the fact that the Veteran has had asbestosis ruled out as a possible diagnosis, as noted above, he has been diagnosed with non-small cell lung cancer and COPD. Hickson element (1) has therefore been met for these disabilities. With respect to Hickson element (2), the Veteran has argued that he was exposed to asbestos during service. As noted in the law and regulations section above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. In this case, the Veteran's service records indicate that his primary military occupational specialty (MOS) was a torpedoman's mate. In April 2005, the Veteran indicated that while aboard the USS Dahlgren, there were constant "problems with the steam engine that ran the compressor [that fired torpedoes] so it was [his] duty to be on station in the #1 boiler room when the air was needed." He further indicated that he had to work on the pipes coming from the steam engine and replaced the asbestos insulation surrounding these pipes. The Veteran has also stated that he was aboard the USS Dahlgren when it went into the Charleston Navy Yard for repairs in January 1945. While the Board is aware that a torpedoman's mate is not one of the occupations noted to have been involved with exposure to asbestos, based on the Veteran's MOS that involved maintaining pipes and insulation along with his service aboard the Dahlgren while it was undergoing repairs, the Board finds that the Veteran was exposed to asbestos during service. Accordingly, Hickson element (2) has been satisfied. With respect to Hickson element (3), in May 2005 the Veteran underwent a VA examination to determine the etiology of his lung cancer. After reviewing the Veteran's medical records and claims folder, the VA examiner noted that the Veteran smoked "cigarettes from when he was about age 13 . . . throughout most of his adult life until he quit in 1991 when he was about 69 years old." He concluded that the Veteran's lung cancer and COPD were at least as likely as not the result of smoking, and less likely as not caused by his exposure to asbestos. In the August 2009 VHA opinion, Dr. W.C.P. concurred with the May 2005 VA examiner's opinion and stated that "the Veteran does have [COPD] as a result of his exposure to tobacco smoke." In June 2006, the Veteran's claims folder was reviewed by a separate VA examiner to determine the percentage of the Veteran's overall pulmonary disability that was related to his asbestos exposure as opposed to his non service-connected chronic obstructive pulmonary disease. In rendering an opinion about the etiology of the Veteran's lung cancer, the VA examiner stated that this disability "may be related to [the Veteran's] smoking history and possible asbestos exposure with it being pure speculation as to what degree. While the VA examiner indicated that asbestos exposure did contribute to the Veteran's overall lung disorder he indicated that opining as to what degree would be speculation. As such, the VA examiner did not offer any opinion as to whether the Veteran's lung cancer residuals are as likely as not the result of his in-service asbestos exposure. In support of his claim, the Veteran has submitted several Internet articles that describe asbestos and asbestos lung cancer. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the Court has held that medical evidence is speculative, general or inconclusive in nature cannot support a claim. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, the treatise evidence which has been submitted by the Veteran is general in nature and does not specifically relate to the facts and circumstances surrounding the Veteran's particular case. The Internet articles are of no probative value and cannot be used to establish the existence of a medical nexus. Notwithstanding the above, in the June 2009 VHA request, the Board specifically asked that a pulmonologist comment on the articles submitted by the Veteran. In his August 2009 VHA opinion, W.C.P., M.D., noted that the Veteran submitted three internet articles in support of his claim. Of those three articles, two were general articles relating to the diagnosis and treatment of asbestos related lung cancer. The third article, published by the Health and Safety Executive of the United Kingdom, entitled "Asbestos-related Lung Cancer" was found to be useful in formulating a medical opinion. In discussing the Heath and Safety paper, Dr. W.C.P. noted that "the article . . . states that a rule of thumb has been established of one to two asbestos related lung cancer for every mesothelioma deaths. The article goes on to suggest that the ration may be overestimated and that the actual ration may be at the bottom end of the range of one to two and might [even] be as low as 2/3 to 1." Dr. W.C.P. further observed that in the United States, "there are over 170,000 new cases of lung cancer annually while there are approximately 3,000 mesothelioma cases." It was also noted that "epidemiologically, 85%-90% of all the lung cancer cases are associated with exposure to tobacco smoke." In discussing the Veteran's lung cancer, Dr. W.C.P. stated that when the worst case epidemiology estimates from the Heath and Safety article are applied to the annual instance of mesothelioma cases in the United States "we would expect approximately 6,000 cases of lung cancer annually to be related to asbestos exposure out of an approximate total of 170,000 annual cases of lung cancer." Accordingly, Dr. W.C.P. observed that "the probability that the Veteran has lung cancer related to his asbestos exposure is then 6,000/170,000 or approximately 3.5%." Instead, Dr. W.C.P. noted that there was an 85 percent probability that the Veteran's lung cancer was related to his cigarette use. To the extent that the Veteran and his representative contend that a medical relationship exists between his asbestos exposure and his lung cancer residuals, any such statements offered in support of the Veteran's claim do not constitute competent medical evidence and cannot be accepted by the Board. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, Hickson element (3) has not been met, and the Veteran's claim fails on this basis. The Board observes that the Veteran has established service- connected for pleural plaques as a result of his in-service asbestos exposure. There is nothing in the Veteran's medical records or elsewhere in the claims folder which even remotely suggest a connection between his pleural plaques and his lung cancer. Cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006). On the contrary, the August 2009 opinion from Dr. W.C.P. notes that the Veteran was diagnosed with lung cancer and underwent surgery five years before pleural plaque was first noted. As noted previously, Dr. W.C.P. opined that there was an 85 percent probability that the Veteran's lung cancer was related to service. Thus, there is, at best, only a 15 percent probability that the Veteran's cancer is related to other sources such as his service-connected pleural plaques. As such, consideration of the Veteran's lung cancer residuals as secondary to pleural plaques is not necessary or warranted. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for lung cancer residuals. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for residuals of lung cancer is denied. ____________________________________________ DAVID L. WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs