Citation Nr: 1137712 Decision Date: 10/06/11 Archive Date: 10/11/11 DOCKET NO. 06-05 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for lung cancer, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from May 1952 to May 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran had a hearing before the Board in April 2008 and the transcript is of record. The case was brought before the Board in May 2008 and June 2010, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence indicates the Veteran was likely exposed, at least minimally, to asbestos while in the military working in the Navy in Great Lakes, Illinois. 2. The Veteran worked post-service in, among other places, a railroad and was likely exposed, at least minimally, to asbestos. 3. The Veteran currently has lung cancer, post-operative, but the most competent and persuasive medical evidence indicates the Veteran's lung cancer is unrelated to any in-service asbestos exposure or any other incident of his military service. CONCLUSION OF LAW The Veteran's lung cancer is not attributable to his military service, to include asbestos exposure, nor may it be presumed to have occurred therein. 8 U.S.C.A. §§ 1101, 1110, 1112, 1131, and 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in October 2004 and March 2006. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Veteran was provided a VA examination in February 2010, with addendum opinions given in August 2010 and December 2010 to ensure all evidence was considered. The examination and addendums are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Thus, the Board finds that VA has satisfied the duty to assist the Veteran and the Board may proceed to consider the merits of the claim. Service Connection (Lung Cancer) Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for lung cancer may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, no legal presumption is applicable because the Veteran was not diagnosed with lung cancer until decades after service. In the absence of a presumption, in order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition to the above requirements, there are alternative methods of establishing service connection under 38 C.F.R. § 3.303(b). For example, a claimant may establish service connection by chronicity. Chronicity is established if the claimant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. See Savage v. Gober, 10 Vet .App. 488 (1997). Alternatively, the claimant may establish service connection by continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage, 10 Vet. App. at 495. The Veteran claims his development of lung cancer is due to asbestos exposure in the Navy. While the Veteran concedes he held a largely "desk job" as a communications technician in the Navy, to include service in Guam and Germany, he believes various old barracks he was stationed in were in such poor condition exposing him to asbestos. The Veteran specifically noted an old submarine's barracks in Germany that he believed exposed him to radioactive waste. He further noted the barracks at Treasure Island after his induction to the Navy in 1952 and on his return from Guam in 1954 exposed him to asbestos. The Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. [This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.] See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions 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. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include 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 sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). 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 id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. Here, the Veteran's personnel records confirm he worked as a communications technician in the Navy working in various parts of the United States and internationally, in Guam and Germany. There is nothing in the personnel records specifically confirming asbestos exposure and the Veteran did not hold an occupation generally considered at-risk for asbestos exposure. In support of his claim, the Veteran submitted a June 2002 GAO report indicating the Naval Training Center Barracks in Great Lakes, Illinois contained asbestos and lead paint in a 2001 examination. The Veteran's personnel records confirm the Veteran was stationed at the Naval Training Center in Great Lakes, Illinois at the beginning of his service in 1952. Again, however, the GAO report confirms asbestos presence as of 2001. In light of the report, however, the Board will concede that the Veteran may have been minimally exposed to asbestos in 1952 while living at the barracks, which now have confirmed levels of asbestos (albeit decades after the Veteran's service). The Board notes, however, there is no confirmation that the Veteran was ever exposed to radioactive wastes or asbestos at other locations during his military service. The Veteran's service treatment records are silent as to any complaints, treatment or diagnoses of a lung-related disorder. The Veteran was examined in May 1952, October 1953 and April 1956 and all examinations indicate a normal lung and respiratory examination. The Veteran does not claim he incurred a lung disorder or even lung symptoms while in the military. Rather, he believes his development of lung cancer years later is attributable to in-service asbestos exposure. After service, the Veteran first sought treatment for lung-related complaints in 2003, nearly five decades after service. In May 2003, a private radiology report noted findings "consistent with asbestosis." The Veteran was ultimately diagnosed with lung cancer and underwent surgery in February 2004. Despite the May 2003 radiology report, no asbestos fibers were found on the lung specimen following the surgery. The Veteran's private treatment records indicate on-going follow-up for his lungs since the 2004 surgery. During the Veteran's hearing before the Board in April 2008, the Veteran conceded that after service he worked 38 years for a railroad company. Of those years, most (28 years specifically) of the time he worked in an office position. He did work various odd jobs his first 10 years with the Railroad company and although he was not a mechanic, the Veteran testified he cannot say truthfully that he was never around toxins. He conceded it is quite possible he was exposed to asbestos during this post-service job. He further conceded to an over 20 year smoking habit. Even so, the Veteran believes his ongoing exposure to asbestos while stationed at the Naval Training Center at the beginning of his service is what ultimately caused his lung cancer. In support of his claim, the Veteran submitted a statement from his private physician, Dr. V., who in March 2005 opined, "[t]o the best of my knowledge [the Veteran] was exposed to asbestos during his admission in the service. This could have contributed to his development of lung cancer for which he was treated." The Board does not find this opinion persuasive. Although positive at first glance, Dr. V. merely indicates a possibility that in-service asbestos exposure "could have contributed" to the Veteran's lung cancer development. Speculative or inconclusive medical opinions are not probative. Obert v. Brown, 5 Vet. App. 30, 33 (1993). Dr. V. also does not offer any rationale for this opinion or whether other pertinent facts were known and/or considered in rendering the opinion, to include the fact that the Veteran has a long-standing smoking habit and a 38 year post-military history working for a railroad company. Opinions based on incomplete or inaccurate facts are not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In contrast, the Veteran was afforded a VA examination in February 2010 where the examiner thoroughly examined the Veteran, detailed the Veteran's self-reported asbestos exposure both in and after his military service, and completely reviewed the claims folder. The examiner noted the Veteran was diagnosed with lung cancer in 2003 with surgery in February 2004. In light of the Veteran's heavy and lengthy smoking habit versus the Veteran's minimal in-service asbestos exposure, the examiner opined the Veteran's lung cancer was not likely developed as a result of his in-service asbestos exposure, or any other incident of his military service. The June 2002 GAO report was associated with the claims folder after the February 2010 VA examination, so the examiner was asked to provide an addendum to the opinion in light of evidence of at least some amount of in-service asbestos exposure. The examiner provided addendums in August 2010 and again in December 2010. In both opinions the examiner maintained that it is not likely the Veteran's lung cancer has any etiological relationship with in-service asbestos exposure or any other incident of his military service. The examiner again found the Veteran's over 20 year history of tobacco exposure the most likely cause of the Veteran's development of lung cancer. The examiner indicated careful review of the Veteran's pathologic report, his service treatment records, the GAO report and the entire claims folder. The Veteran's pathologic report indicates no evidence of asbestos fibers in the specimen collected during his February 2004 surgery. The record as a whole does not support definite exposure to asbestos, radiation, or any other toxic material in quantities to be carcinogenic or detectable during his military service. Again, the examiner noted the fact that no asbestos fibers were detected in his surgical specimen and, therefore, "it is not likely that his lung cancer had its onset during active service or is related to any in-service disease or injury, including exposure to asbestos or radiation." The Board finds the VA examiner's opinions persuasive. They are based on a thorough examination and a complete review of the claims folder, to include the Veteran's contentions, his private records, Dr. V.'s opinion and the GAO report. The Board also considered internet articles submitted by the Veteran, but found them not persuasive because they are merely generic texts not specific to the Veteran's fact pattern. The Board notes such generic texts, which do not address the facts in this particular Veteran's own case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). In short, the Board finds there is at least some confirmation that the Veteran may have been minimally exposed to asbestos while stationed at the Naval Training Center in Great Lakes, Illinois in 1952. There is also some suggestion the Veteran may have been exposed to asbestos during his many years post-service working for a railroad company. The Veteran also concedes to a long-standing smoking habit. The most persuasive and probative medical evidence indicates the Veteran did not develop lung cancer due to any asbestos exposure, whether it be in service or thereafter. Accordingly, while the Veteran's statements regarding asbestos exposure has been considered, even if conceded, the Veteran's claim fails based upon the lack of a persuasive and probative medical nexus associating his in-service exposure to his current disability. In light of the evidence described above, the Board finds that service connection for lung cancer is not warranted. Direct service connection requires a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The most probative evidence of record is against such a finding in this case. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for lung cancer, claimed as due to asbestos exposure, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs