Citation Nr: 1104065 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 09-15 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for lung cancer, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran was exposed to asbestos during service; did not have continuous symptoms of lung cancer after service separation; does not have an asbestos-related pulmonary disorder; and the currently diagnosed lung cancer is not related to any in-service injury or disease, including in-service asbestos exposure. CONCLUSION OF LAW The criteria for service connection for lung cancer, to include as due to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (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. In a timely May 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence that VA will seek to provide, and what information and evidence the Veteran is expected to provide. The notice included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post- service VA treatment records, a VA examination report, and the Veteran's statements. The VA examination report was adequate for rating purposes, as it included a thorough and accurate medical history obtained from claims file review and history of the Veteran, physical examination of the Veteran, diagnosis, opinion, and bases for the opinion. In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration. Service Connection for Lung Cancer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease 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). The Veteran alleges that he was exposed to asbestos while working as a shipfitter pattern maker, noting that he worked in the machine shop which was full of asbestos and that he was exposed to asbestos while repairing submarines at the Submarine Base in New London, Connecticut. There is no specific statutory guidance with regard to asbestos related claims, nor has the VA Secretary promulgated any specific 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 were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. The Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims and hereinafter 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 the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV lists some of the major occupations involving exposure to asbestos including 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. 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. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C 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). 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. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). VA satisfied the above requirements by obtaining the Veteran's service personnel files and providing the Veteran an asbestos questionnaire. It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGPREC 4- 2000. It should also be noted that for many asbestos related diseases, the latency period varies from ten to forty-five or more years between first exposure and development of disease. Id. at IV.ii.2.C.9.d. The evidence demonstrates that the Veteran was likely exposed to asbestos during active duty service. In various lay statements, the Veteran reported that he was exposed to asbestos during service; specifically, that he was exposed to asbestos while repairing submarines. Although the Veteran's service treatment records are negative for asbestos-related disease or any mention of asbestos exposure, service personnel records reflect that the Veteran's military duties included service as a shipfitter pattern maker, which likely would have required him to perform activities exposing him to asbestos during service, including insulation and repair work and use of pipe products. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Veteran is competent to testify that he was exposed to asbestos during service. The Board also considers the Veteran's statements to be credible, as they are consistent with his personnel records which reflect that his military occupational specialty would likely have required some exposure to asbestos during service. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. Thus, the Board finds that the Veteran's statements are credible and sufficient to establish that he was exposed to asbestos during active duty service. Even finding the Veteran had in-service exposure to asbestos, competent evidence is required for a determination that the Veteran has an asbestos-related disability, and that asbestosis or another asbestos-related disorder is etiologically related to asbestos exposure in service. After a review of the evidence, the Board finds that the record does not indicate that the Veteran has an asbestos-related respiratory disability or that his lung cancer is due to any in-service injury or disease, including in-service asbestos exposure. According to the Veteran's in-service treatment records, there is no evidence that the Veteran complained of or was treated for lung cancer or symptoms of lung cancer in service. The Veteran's February 1973 separation examination also does not reflect a history, complaints, or findings of lung cancer. A chest x-ray conducted in July 1973 was negative for evidence of active disease. The Veteran is competent to testify as to his observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is competent to relate symptoms of lung cancer since service, the Veteran has not even asserted continuity of symptomatology since service separation. In the context of the February 1973 examination upon separation from service, and negative post-service treatment records, the Board finds as a fact that there were not continuous symptoms of lung cancer since service separation. As the Veteran is contending that his current lung cancer is due to exposure to asbestos in service, and is not contending that he has had symptoms of lung cancer since separating from service, there is no basis for finding continuity of symptomatology of symptoms after service. For this reason, the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) are not applicable in this case. On the question of nexus between currently diagnosed lung cancer and service, including asbestos exposure in service, the evidence includes VA treatment records from February 2007 to August 2008 that indicate the Veteran has a current lung disorder; however, these records do not reflect an opinion on the etiology of that disorder. The VA treatment records diagnose the Veteran with non-small cell carcinoma, favor squamous cell carcinoma of the lung. A January 2007 VA Pulmonary Abnormal Radiograph reports that the Veteran was diagnosed with bronchogenic carcinoma of a proximal bronchus, anterior segment of the left upper lobe. In a March 2007 VA Hematology and Oncology Consult, the Veteran was diagnosed with non-small cell carcinoma, favor squamous cell carcinoma. In an April 2009 VA respiratory examination, the examiner diagnosed non-small cell lung cancer (likely squamous cell) of the left upper lobe with no recurrence. There is no competent medical evidence of record to indicate that the Veteran's current lung cancer is related to service, and the competent medical evidence that is of record tends to weigh against a finding of relationship between currently diagnosed lung cancer and service, including in-service asbestos exposure. In an April 2009 VA respiratory examination, the VA examiner pertinently opined, after a thorough examination of the Veteran and upon review of the history in the claims file, that "The vast majority of asbestos exposed individuals who develop cancer secondary to asbestos inhalation develop mesothelioma. It is therefore statistically less likely than not that [the Veteran's] lung cancer was related to his asbestos exposure." The VA examiner stated that "the Veteran has never been diagnosed with asbestosis, per se" and that the Veteran's "significant smoking history of 10-20 cigars per day for many years is certainly a significant risk factor in the development of his lung cancer." See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). To the extent that the lung cancer is associated with smoking, as the current claim was filed after June 9, 1998, that is, in 2007, service connection is precluded by law for a disability, resulting from the use of tobacco products in service. 38 U.S.C.A. § 1103(a) (West 2002 and Supp. 2010). There is no competent evidence of record contrary to the medical opinion of the April 2009 VA examiner, nor is there any medical evidence indicating that the Veteran's current lung cancer is due to any other injury or disability. VA treatment records from February 2007 to August 2008 confirm a current diagnosis of lung cancer; however, they are silent as to whether the Veteran's current lung cancer is related to his exposure to asbestos while in service. The Veteran has had ample opportunity to secure medical evidence in his favor and submit the same to VA. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim for VA benefits). The Board acknowledges the Veteran's lay statements indicating his belief that his current lung cancer is related to exposure to asbestos in service. See, e.g., October 2008 Notice of Disagreement. To the extent that the Veteran contends that his currently diagnosed lung cancer is related to his active duty service, he is not competent to render such a medical nexus opinion regarding the more complex disability of lung cancer, a disability that requires specific clinical testing to even diagnose. See 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). This is not a case in which the Veteran's lay beliefs alone can serve to establish an association between his lung cancer and his military service. Accordingly, the statements by the Veteran purporting to establish a medical link between his current disability and his military service are not competent on the complex medical question of nexus in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). See also Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (a veteran is competent to report in- service "injury" of radiation exposure, but is not competent to diagnose carcinoma (cancer) or relate it to service). On the question of nexus of currently diagnosed lung cancer, the Board finds that the weight of the competent evidence demonstrates that the currently diagnosed lung cancer is not related to any in-service injury or disease, including to asbestos exposure in service. The Board places more probative weight on the opinion of the April 2009 VA examiner, who stated that it was "statistically less likely than not that [the Veteran's] lung cancer was related to his asbestos exposure." In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for lung cancer. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, the benefits sought on appeal are denied. ORDER Service connection for lung cancer, to include as due to asbestos exposure, is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs