Citation Nr: 1324775 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 11-06 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from October 1956 until his retirement in August 1975. He died in April 2010. The appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for lung cancer. The Veteran filed a notice of disagreement later that month. The Board notes that following the Veteran's death, the appellant submitted a request for substitution. The Board observes that by letter dated December 2010, the RO notified the appellant she had been awarded death pension benefits as the Veteran's surviving spouse. In addition, the statement of the case issued in January 2011 acknowledged that the appellant had filed a request to be substituted for the Veteran. The RO certified the appeal to the Board in January 2012. The Board finds that the RO has effectively substituted for the Veteran regarding the claim for service connection for lung cancer. FINDINGS OF FACT 1. The appellant is the surviving spouse of the Veteran, and filed her request for substitution within one year of his death. 2. It is not shown either by competent medical evidence or by credible lay evidence that the Veteran had carcinoma of the lung, to include as due to exposure to asbestos, that is related to service. CONCLUSION OF LAW Carcinoma of the lung was not incurred in or aggravated by active service, nor may lung cancer be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. Letters dated in September and October 2009 explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. These letters also informed the Veteran of disability rating and effective date criteria. As noted above, the appellant has been substituted for the Veteran and she has had ample opportunity to respond and supplement the record, and has not alleged that notice in this case was less than adequate. An opinion regarding the etiology of the Veteran's lung can has been obtained from a VA physician. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA medical opinion obtained in this case is adequate, as it is based on a review of at least part of the record, and considered the pertinent evidence of record, including the opinion of the Veteran's private physician. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the appeals on these claims, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual background, legal criteria and analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war, or during peacetime service after December 31, 1946, and carcinoma becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The record shows the Veteran served aboard the USS Saratoga from November 1957 to November 1958, and the USS Kitty Hawk from December 1970 to February 1973. Among the medals he received were the Vietnam Service Medal and the Vietnam Campaign Medal. The discharge certificate for the period from May 1971 to February 1973 states he "[s]erved in Vietnam." In January 2010, the National Personnel Records Center, responding to a request from the VA to furnish the Veteran's dates of service in Vietnam, indicated it was unable to determine if the Veteran had served in Vietnam. It noted he had served aboard the USS Kitty Hawk, which was in the official waters of Vietnam for various periods between December 1970 and October 1972, but the record provided no conclusive proof of in-country service. The service treatment records are negative for complaints or findings pertaining to a lung disability, to include cancer. A report of medical history in July 1975 shows the Veteran denied shortness of breath, but indicated he had pain or pressure in the chest. The physician's summary noted it was not considered disqualifying. On examination, the lungs and chest were normal, and a chest X-ray was within normal limits. On VA general medical examination in December 1975, the Veteran had no pertinent complaints, and the lungs were clear to percussion and auscultation. There were no wheezes or rhonchi. The Veteran was admitted to a VA hospital for unrelated complaints in August 1991. An examination disclosed the chest was clear to auscultation. In a statement dated July 2009, a private physician noted the Veteran had been having troubles with a cough and not feeling well. He had been seen the previous month and had an abnormal chest X-ray. A CT scan revealed a persistent abnormality that was suspicious for cancer. He was then referred to a specialist and the diagnosis of lung cancer was made. The Veteran was admitted to a private hospital in July 2009. It was reported he had a 40 pack-year history of smoking, and had quit approximately 12 years earlier. Clinical notes when he was in the emergency room show the Veteran stated all his lung troubles began recently. He believed they were related to a chemical used at his job. The Veteran also noted he had been exposed to asbestos in service. An October 2009 statement from the Veteran's then-representative noted the Veteran did not touch foot on Vietnam soil, and was not exposed to Agent Orange. The representative requested the Veteran's claim be developed on the basis that his lung cancer was due to exposure to asbestos. Letters dated in November and December 2009 were received from K. Darabi, M.D. The physician not that cigarette smoking is the main predisposing factor in the development of small cell lung cancer. The link between smoking and small cell carcinoma was very strong. Dr. Darabi observed that exposure to asbestos increases the risk in developing this tumor. He said the combination of asbestos exposure plus cigarette smoking is particularly harmful. He commented in December 2009 that while asbestos exposure can cause small cell lung cancer, a much stronger link exists between smoking and small cell lung cancer in individuals with a long-standing history of tobacco use. The Veteran was hospitalized at a private facility from March 2010 until his death three days later in April 2010. The pertinent diagnosis was progressive small cell carcinoma of the lung. The death certificate shows the Veteran died in April 2010 of small cell carcinoma of the lung. An autopsy was not performed. The Veteran's claims folder was referred to a VA physician in January 2011 for an opinion as to whether the Veteran's lung cancer was due to exposure to asbestos in service. The physician observed the Veteran was an aerographer's mate in service, and this indicated he had a low probability of asbestos exposure. He noted the Veteran was diagnosed with right lung small cell carcinoma in July 2009. He related the Veteran had pulmonary CT scans and an angiogram that did not show any plaques or scarring in the left lung (the unaffected side). He stated one would expect asbestosis would have some bilateral disease showing pleural changes on both sides, but the Veteran's left lung was free of those findings. The VA physician acknowledged the letters from Dr. Darabi, but his own interpretation was that it would lean more towards being secondary to long term chronic cigarette smoking. He noted the Veteran had chronic obstructive pulmonary disease, which would go along with this. He construed the letters from Dr. Darabi as providing a stronger association of the Veteran's cancer with cigarette smoking as the etiology. The VA physician believed the etiology of the Veteran's small cell carcinoma favored association with long term chronic cigarette smoking, even though he quit smoking around 1997. While there is a strong association between asbestos exposure and cigarettes combined, he thought the etiology still lent itself towards cigarette smoking, noting the service department indicated there was minimal risk of asbestos exposure in the Veteran's job duties in service. Thus, the VA physician concluded it was less likely than not that the Veteran's small cell carcinoma of the lung was due to asbestos exposure in service. On his initial claim for service connection for lung cancer, the Veteran stated it was related to exposure to Agent Orange and/or asbestos. The relationship of his lung carcinoma to Agent Orange exposure was addressed in the February 2010 rating decision, and the Veteran responded in his notice of disagreement that he had never alleged he set foot in Vietnam. The Board notes that during the hearing before the undersigned in April 2012, the appellant asserted the Veteran performed two tours off the coast of Vietnam, apparently seeking to relate the Veteran's lung cancer to his exposure to Agent Orange. In her substantive appeal, she alleged he came into close contact with pilots returning from missions to Vietnam and was thereby exposed to Agent Orange. She also claimed he went ashore on many occasions for supply runs. However, in light of the Veteran's acknowledgement he had not served in Vietnam, and the fact that the National Personnel Records Center could not confirm the Veteran set foot in Vietnam, the Board finds the provisions of 38 C.F.R. § 3.309(e) are not applicable. It is argued that the Veteran's carcinoma of the lung is related to his exposure to asbestos during service. In his notice of disagreement, the Veteran asserted that the plumbing and heating systems on the ships on which he served were covered with asbestos. He pointed out that his duties as an aerographer's mate took him into every area of the ship. He also stated he was exposed to asbestos when the USS Kitty Hawk underwent overhaul in 1970. The Board acknowledges that Dr. Darabi noted that exposure to asbestos increased the risk of developing small cell lung cancer. It is significant to point out that in a subsequent letter, he conceded that while exposure to asbestos may cause small cell lung cancer, in fact, there was a much stronger link between such cancer and a history of smoking. Thus, even the physician who initially furnished an opinion lending some support to the appellant's claim, essentially retracted his statement and related the Veteran's lung cancer to his cigarette smoking. In addition, the Board finds the January 2011 opinion of the VA physician to be more probative. In this regard, he noted the Veteran had minimal risk of asbestos exposure in his duties as an aerographer. Further, he noted that if the Veteran did have asbestosis, it most likely would have been bilateral, yet abnormal findings were present only on one lung. The VA physician unequivocally concluded that the Veteran's lung cancer was related to his cigarette smoking and not due to the minimal exposure to asbestos he might have received in service. The Board acknowledges the assertions of the appellant that the Veteran's lung cancer was related to his exposure to asbestos during service. Lay persons are competent to provide opinions on some medical issues; however, the specific issue in this case, the etiology of carcinoma of the lung, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is no probative medical evidence linking lung cancer to service. The Board concludes the medical findings of record are of greater probative value than the appellant's allegations regarding the etiology of carcinoma of the lung. The Board finds, accordingly, that the preponderance of the evidence is against the claim for service connection for carcinoma of the lung, to include as due to exposure to asbestos. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for carcinoma of the lung, to include as due to asbestos exposure, is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs