Citation Nr: 1218687	
Decision Date: 05/25/12    Archive Date: 06/07/12

DOCKET NO.  09-47 740	)	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 in-service asbestos exposure.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. Neilson, Counsel






INTRODUCTION

The Veteran had active service from August 1964 to March 1965.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDING OF FACT


The Veteran's lung cancer was first diagnosed over four decades after his active duty and has not been found by competent and credible evidence to be related in any way to such service, including his purported in-service exposure to asbestos.  


CONCLUSION OF LAW

Lung cancer was not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  They also require 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 the Secretary 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.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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).

In the current appeal, the RO received the Veteran's service connection claim in September 2008.  In October 2008, the RO sent to him a letter notifying him of the evidence required to substantiate that claim.  The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency.  The letter also requested that he provide specific information regarding his alleged asbestos exposure.  The RO further advised the Veteran on the types of evidence he could submit that would support his service connection claim, such as the dates of medical treatment during service, evidence of medical treatment since service, employment physical examination reports, and statements by persons who knew of the Veteran's disability.  The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates.  

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the October 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim.  Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran.  All available evidence pertaining to the Veteran's claims has been obtained.  The evidence includes his service treatment records (STRs), service personnel records; VA outpatient treatment records; the report of an October 2009 VA examination report, and the operative report of his September 2008 lung surgery.  The Veteran elected to not have a hearing in his case.  

Further, at the October 2009 VA examination, the examiner reviewed the Veteran's claims folder, took a detailed history from the Veteran, conducted the appropriate diagnostic tests, and provided an opinion as to the etiology of the Veteran's lung cancer.  The examination report contains sufficient evidence by which to evaluate the Veteran's claim and the Board finds that the examiner's opinion is supported both by the evidence of record and the reasons stated therein.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (discussing requirements for an adequate VA examination).  

The Board notes that the examination request indicated that the Veteran was to be examined "by a pulmonologist or at least a physician," but that the examination was conducted by a physician's assistant.  In this regard, the Board points out that status as a medical doctor is not required to offer an adequate medical opinion; rather, the examination need only be "'provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.'"  Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (quoting 38 C.F.R. § 3.159(a)(1) (2006)).  In this case, there is no evidence that the medical examiner does not meet these requirements.  Furthermore, the examination report was reviewed and signed by a physician.  Accordingly, the Board finds no reason to reject the VA examination and the opinion rendered as a result thereof as inadequate based on the fact that the examination was conducted by a physician's assistant.  Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination.

II.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011).  

In the instant case, the Veteran's post-service treatment records show that in May 2008, he presented with a cough for two weeks.  A June 2008 positron emission tomography (PET) scan was highly suspicious for early stages of lung cancer.  During a July 2008 surgery consultation, the Veteran denied tobacco use, stating that he had quit smoking 20 years beforehand.  He reported a history of crack cocaine use, but denied use of marijuana.  An August 2008 chest computed tomography (CT) scan was suspicious for a malignancy.  In September 2008, the Veteran underwent a left upper lobe wedge resection with completion lobectomy.  The wedge resection demonstrated moderately differentiated adenocarcinoma.  

That same month, the Veteran filed an application for VA compensation benefits, seeking service connection for lung cancer, which he alleged was due to asbestos exposure in service.  He later reported that he was exposed to asbestos while working in the hull of the ship and being assigned to the dry dock area at Pearl Harbor, Hawaii, where he refitted Naval vessels, which included removing and restoring asbestos wrapped materials and working with lead based paint.

As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection.  See McGinty v. Brown, 4 Vet. App. 428, 432 (1993) (noting 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).  However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims.

In 1988, VA issued the Department of Veterans Benefits (DVB) Circular 21-88-8, which provided guidelines for considering asbestos compensation claims.  See DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates in 2005 and 2006.  See VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Ch.2 Section C, Topic 9 (Dec. 13, 2005) and Section H, Topic 29 (Sep. 29, 2006).  In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract.

The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.

The applicable sections of the M21-1MR note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect.  The guidelines point out that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed.  They further specify that asbestos fibers may produce asbestosis, pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract.  See M21-1MR, Part IV.ii.2.C.9.

Accordingly, with asbestos-related claims, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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, keeping in mind the latency and exposure information discussed above.  See M21-1MR, Part IV.ii.2.C.9.h.  The VA General Counsel has held that relevant factors in the adjudication manual are not substantive, but must be considered by the Board in adjudicating asbestos-related claims.  VAOPGCPREC 4-2000 (April 13, 2000).

A review of the Veteran's STRs does not reveal any evidence of symptoms or treatment relating to his lungs.  No lung disability was diagnosed in service.  Chest X-rays taken in August 1964 at entrance into service were essentially negative, and the Veteran's lungs and chest were clinically evaluated as normal both at entrance to and separation from service.  Additionally the service treatment and personnel records do not explicitly document any exposure to asbestos.  In this case, the RO found that the Veteran's likelihood of exposure to asbestos was minimal due to the fact that he was a commissary man in service and only served aboard the USS Carpenter from November to December 1964.

Although in-service asbestos exposure was not documented, as noted above, the Veteran has proffered his theory of asbestos exposure.  Regardless, however, of whether the Veteran was indeed exposed to asbestos in service, service connection for lung cancer residuals must be denied because the competent and credible evidence of record fails to establish a link between the Veteran's lung cancer and his alleged exposure to asbestos in service-nor does the competent and credible evidence of record show a link between the Veteran's lung cancer and his service or support a finding of continuity of symptomatology.

In this regard, the Board notes that the Veteran was afforded a VA examination in October 2009 for the specific purpose of determining the etiology of his lung cancer and likelihood that it was related to service, to include any alleged in-service exposure to asbestos.  The VA examiner reviewed the claims folder, noting the Veteran's service on board a ship from November to December 1964, and his post-service work as a general construction laborer and roofer.  The Veteran denied post-service exposure to asbestos.  He reported developing a chronic cough in early 2008, for which he sought treatment in May of that year.  The VA examiner noted the PET and CT scan findings and reviewed the report of the September 2008 left upper lobectomy, noting that the pathology report showed moderately differentiated adenocarcinoma, or non-small cell lung cancer.  The examiner also noted emphysematous changes of the left upper lobe and stated that five lymph nodes were negative for evidence of malignancy.

The Veteran endorsed a history of smoking, stating that he had smoked one pack of cigarettes a day for 23 years, but had quit smoking 21 years prior.  He admitted to intermittent use of marijuana and cocaine, and reported exposure to second-hand smoke in his house.  The Veteran reported that he had quit working as a roofer several years prior because it was too difficult for him to climb the ladders.  He stated that he continued to have a chronic productive cough, which produced approximately one teaspoon of white sputum daily.  It was noted that the Veteran had had no postoperative treatment other than the pulmonary rehabilitation program, which was ongoing at that time.  

Chest X-rays revealed changes of the prior left upper lobectomy.  The nodular lesion previously demonstrated was not seen on the current study.  There was blunting of the left costophrenic angle, likely representing pleural thickening or small pleural effusion.  Partially calcified nodules in the lungs likely represented healed granulomas.  No acute abnormality was seen.  A pulmonary function test (PFT) revealed a moderate obstructive ventilator defect and significant bronchodilator effort, which could have been effort related.  The lung volumes were essentially normal.  The forced expiratory volume was significantly decreased compared to a June 2008 PFT.

The examiner diagnosed non-small cell adenocarcinoma of the left upper lobe, status post left upper lobectomy, and mild to moderate emphysema.  He then provided his opinion that the Veteran's lung cancer was not due asbestos exposure, but rather, was most likely due to his history of smoking.  As support for his negative nexus opinion, the VA examiner explained that asbestos exposure leads to mesothelioma lung cancer, which was not the type of lung cancer diagnosed in the Veteran.  The examiner also noted that lung imaging showed no evidence of pleural plaques or interstitial lung disease caused by asbestos exposure.  

In the instant case, although the Veteran believes his lung cancer to be related to his alleged asbestos exposure, the Board finds the medical evidence of record to be more probative on the issue of nexus.  In this regard, the Board notes that etiology of dysfunctions and disorders is generally a medical determination.  See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  Here, the VA examiner provided a medical explanation for why the Veteran's theory of the case should be rejected.  The Board is persuaded by the examiner's explanation because of his expertise and because the record is consistent with the explanation.  Thus, there is no basis to establish service connection for lung cancer as a result of any in-service exposure to asbestos, as a crucial element of service connection has not been shown.  See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability).  

Moreover, the competent and credible evidence of record does not otherwise associate the Veteran's lung cancer to his active duty.  Significantly, no medical professional has provided a positive opinion as to such.  In fact, the October 2009 VA examiner concluded that the Veteran's lung cancer was caused by his smoking history.  [In this regard, the Board notes that, at the October 2009 VA examination, the Veteran reported that he had stopped smoking 21 years earlier and that, prior to quitting, he had smoked one pack a day for 23 years.  Clearly, based on the Veteran's own reported history he did not begin smoking until approximately the fall of 1965 (after service).]
Also as this discussion illustrates, the Veteran's lung cancer was not diagnosed until 2008, more than four decades after his discharge from active duty.  Further, at no time during the current appeal has the Veteran asserted that he has experienced respiratory problems since service.  In fact, throughout the appeal, he has admitted that he did not begin to experience such problems until early 2008, when he began to have a chronic cough.  Thus, the grant of service connection based on a continuity of pertinent symptomatology since active duty is not warranted.  Mense v. Derwinski, 1 Vet. App. 354, 356 (1991); Savage v. Gober, 10 Vet. App. 488 (1997); & Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  

Accordingly, because the preponderance of the evidence is against the Veteran's claim, service connection for lung cancer must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102 (2011).


ORDER

Service connection for lung cancer, to include as due to in-service asbestos exposure, is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs