Citation Nr: 1331268 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 12-32 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for lung cancer, to include as due to asbestos exposure. 2. Entitlement to service connection for lung cancer, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from March 1944 to January 1946 and from June 1947 to June 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which reopened the Veteran's claim for service connection for lung cancer and denied the claim on the merits. In April 2013, the Veteran testified before the undersigned at a travel board hearing. A transcript of the hearing has been associated with the claims file. Subsequent to the April 2013 hearing, the Veteran submitted additional evidence in support of his claim. However, in an April 2013 written statement, the Veteran waived RO consideration of this evidence. See 38 C.F.R. §§ 19.37, 20.1304 (2013). Therefore, the Board finds no prejudice to the Veteran in proceeding to adjudicate this appeal and taking into account this new evidence. In June 2013, the Board requested a Veterans' Health Administration (VHA) opinion, and the VHA opinion was obtained in July 2013. The Veteran was advised of his right to provide additional evidence or argument in response to that opinion, but in an August 2013 statement, he indicated that he had no additional evidence to submit and wished for the Board to proceed with his appeal. See 38 C.F.R. § 20.1304 (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The May 2007 rating decision that denied service connection for lung cancer was not appealed and is final. 2. Some of the evidence received since the May 2007 rating decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for lung cancer. 3. Lung cancer was not manifested during service or for many years thereafter, and the most competent and probative evidence does not relate lung cancer to the Veteran's period of service, to include as due to exposure to asbestos, smoke screen agents, and diesel fuel. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for lung cancer. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(b) (2013). 2. The criteria for establishing service connection for lung cancer have not been met. 38 U.S.C.A. §§ 1110, 1112, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the Board's favorable disposition to reopen the claim for lung cancer, the Board finds that no discussion of VCAA compliance is necessary for this issue. Regarding the claim for service connection for lung cancer, the notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In a July 2012 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The July 2012 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA medical records, a VA examination report, a VHA opinion, and the Veteran's statements. The Board finds that the August 2012 VA examination conducted in connection with the claim is adequate because the examiner was informed of the relevant facts regarding the Veteran's medical history and addressed the relevant criteria regarding whether the Veteran's lung cancer was due to asbestos exposure. Similarly, the Board finds that the July 2013 VHA opinion is adequate because the oncologist was informed of the relevant facts regarding the Veteran's medical history and addressed the relevant criteria regarding whether the Veteran's lung cancer was due to exposure to smoke screen agents or diesel fuel. The Veteran has been afforded a Board hearing in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2013) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned specifically noted the basis of the prior determination or the element that was lacking to substantiate the Veteran's claim. The Veteran also volunteered his treatment history by indicating that he had additional medical evidence to submit. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument, including at a Board hearing. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran 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 in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). Service connection for lung cancer was originally denied by a rating decision in May 2007. The RO denied the claim because the Veteran's service treatment records did not show that he was treated or diagnosed with any lung disability during service, there was no evidence that the Veteran had been diagnosed with a lung disability, and there was no evidence that the Veteran had a lung disability that either occurred in or was caused by his period of service. In May 2012, the Veteran filed his request to reopen the claim for service connection for lung cancer. In the August 2012 rating decision on appeal, the RO determined that new and material evidence had been submitted to reopen the claim, but denied the claim on the merits. The evidence received subsequent to the May 2007 rating decision includes, in relevant part, VA medical records dated from March 2012 to April 2013, an August 2012 VA examination report, a July 2013 VHA opinion, an April 2013 travel board hearing, and the Veteran's statements. As pertinent here, the medical records show that the Veteran has a current diagnosis of non-small cell carcinoma of the lungs. The Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim. In this regard, the Veteran's claim was previously denied, in part, because there was no evidence of a current diagnosis of any lung disability. The Board notes that the Veteran's claim had also been previously denied because there was no evidence that a lung disability was related to his military service. The newly received evidence need only help prove one unestablished element of a current disability to qualify as new and material evidence to reopen the claim. Here, the new evidence is in the form of a diagnosis of lung cancer. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Therefore, as the threshold for reopening a claim is low, the Board finds that new and material evidence has been submitted to reopen the claim for service connection for lung cancer. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and tumors become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. See M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). Additionally, the Board must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997). VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. The Veteran initially contended that his current lung cancer was due to exposure to asbestos during his period of service when he was stationed aboard the U.S.S. Pondera. Later, he contended that his lung cancer was due to in-service exposure to smoke screen agents or diesel fuel. Service personnel records confirm that the Veteran served aboard the U.S.S. Pondera during his first period of service. His military occupational specialty was that of seaman first class. However, service treatment records for both of the Veteran's periods of service are negative for any complaints, treatment, or diagnoses of lung cancer. On separation examination in January 1946, the Veteran made no respiratory complaints. An x-ray of the lungs showed a small area of increased density in the right lower lobe that did not appear to be active, but the Veteran's respiratory system was otherwise found to be within normal limits. The Veteran's June 1950 separation examination also revealed that his respiratory system was within normal limits, and he did not make any respiratory complaints. VA medical records dated from March 2012 to April 2013 show that the Veteran had been diagnosed with non-small cell carcinoma of the lungs and that he received intermittent treatment for this condition. Chest x-rays of the lungs revealed a right hilar mass that represented non-small cell carcinoma. On VA examination in August 2012, the Veteran stated that he served in both the Navy and Air Force for a total of 6 years. He maintained that he had a history of smoking for approximately 50 years. He indicated that his only exposure to asbestos would have been when he was aboard a ship during service, but he reported that he had not been involved in refitting or repair. He had instead been involved with electronic equipment while serving in the Air Force, and following discharge from service, he worked with home electronics. He reported that his lung cancer had been diagnosed in 2012 when he first began experiencing right chest pain. He indicated that he currently also suffered from some chest pain. The examiner noted that the Veteran's pulmonary conditions included inactive bacterial lung infection and traumatic total pneumothorax that had resulted in hospitalization in 1951. An April 2012 CT scan revealed that the Veteran had right hilarmous, and an April 2012 bronchoscopy indicated that the Veteran's lungs were positive for non-small cell cancer of the lungs. An August 2012 x-ray of the chest revealed that the Veteran had chronic right upper lobe infiltrate that possibly could be the sequelae of asbestosis. However, the August 2012 B-Reader test results revealed no evidence of asbestosis. CBC test results also showed no significant abnormalities. The Veteran was diagnosed with non-small cell carcinoma of the lungs. The examiner reviewed the entire claims file and opined that the Veteran's non-small cell carcinoma of the lung was less likely than not due to exposure to asbestos. He explained that the Veteran had not been involved in refitting or repair of ships, and his asbestos exposure risk was essentially none. The examiner also noted that the Veteran had no evidence of asbestosis on CT or PET scan of the lung. He concluded that the Veteran's smoking history was the most likely cause of his non-small cell carcinoma. The Veteran testified before the Board at a travel board hearing in April 2013. Testimony revealed, in pertinent part, that the Veteran served aboard the U.S.S. Pondera and that his primary task as a crew member of one of the boat pools on the ship had been to deliver troops and supplies ashore during an invasion. The Veteran testified that he had also used a smoke generator to lay smoke screens for the ship so that any suicide bombers or boats could not find the ship. He reported that he had not worn anything covering his face when he used the smoke generators. He stated that he had been diagnosed with non-small cell carcinoma and that he was going for a follow-up appointment because his last PET scan had not come out clearly. He indicated that the physician had not been able to determine whether the PET scan had been showing part of the cancer or a scar. He maintained that his right lung was very scarred because he had been in an accident in 1951 where his lung became punctured. The Veteran testified that other than when he had first been diagnosed with a lung problem, he had not experienced any prior breathing problems over the years. He contended that his exposure to smoke from the smoke generators and the diesel fuel that was burned in the smoke pots caused his lung cancer. In July 2013, a VA oncologist reviewed the Veteran's claims file to determine whether his lung cancer was due to exposure to smoke screen agents and/or diesel fuel. The oncologist specifically noted reviewing the Veteran's medical records regarding his lung cancer diagnosis, documentation of exposure to smoke screens during World War II in the Pacific theater of operations (war diary), and the Veteran's April 2013 Board hearing testimony. Based on the information presented, the oncologist opined that it was less likely than not that the Veteran's lung cancer was related to his military service, including exposure to smoke screen agents and/or diesel fuel. He explained that his opinion was based on the fact that during World War II, the agent used to develop smoke was titanium tetrahydrochloride, and the available medical literature, including toxicological literature on titanium tetrahydrochloride, suggested that this chemical did not have any known carcinogenic effects on humans. He reported that the available literature on other components of smoke screens, including zinc chloride and white phosphorus, was also inconclusive about any carcinogenic effects from these agents. Regarding diesel fuel, the oncologist indicated that recent population-based studies had suggested a role for diesel exhaust and its role in increasing the risk of lung cancer. Diesel exhaust had also been upgraded to the status of a carcinogen by the World Health Organization. However, he noted that the Veteran's statements indicated the use of a high octane gasoline on the LCVP, and exposure to the fuel itself was not considered sufficient for carcinogenic effects. Therefore, the oncologist concluded that the Veteran's lung cancer was less likely than not related to military service, including exposure to smoke screen agents and/or diesel fuel. He instead found that the Veteran's medical record supported the notion that his long history of smoking was a more likely contributing factor to his development of lung cancer. The Board reiterates that although there was evidence of asbestos exposure in service, the Veteran's service treatment records were found to be negative for any complaints, diagnosis, or treatment of any respiratory disability. In addition, lung cancer was not shown to a compensable degree within one year following the Veteran's discharge from service, for any period of active service. Indeed, at his April 2013 hearing, the Veteran acknowledged that he had only been diagnosed with lung cancer in the previous year and that he had not experienced any respiratory symptoms prior to that diagnosis. Moreover, the Board notes that at no time did any of the Veteran's treating providers find that his lung cancer was due to his period of service, to include asbestos exposure, and exposure to smoke screen agents and/or diesel fuel. However, the VA examiner who performed the August 2012 VA examination thoroughly reviewed the claims file, interviewed and examined the Veteran, and provided adequate reasoning and bases for the opinion that it was less likely than not that the Veteran's lung cancer was due to his in-service exposure to asbestos. Specifically, the examiner found that because the Veteran had not been involved in refitting or repair of ships, his exposure risk to asbestos in service had essentially been none. He also noted that the Veteran had no evidence of asbestosis on CT or PET scan of the lung. He concluded that the Veteran's smoking history had been the most likely cause of his non-small cell carcinoma. Similarly, the VA oncologist who provided the July 2013 VHA opinion thoroughly reviewed the claims file and provided adequate reasoning and bases for the opinion that it was less likely than not that the Veteran's lung cancer was due to his in-service exposure to smoke screen agents and/or diesel fuel. Specifically, the oncologist found that the available medical literature regarding the components used in smoke screens suggested that the chemicals did not have any known carcinogenic effects on humans. He also explained that although diesel exhaust had been upgraded to the status of a carcinogen, the Veteran had indicated the use of a high octane gasoline on the LCVP, and exposure to the fuel itself was not considered sufficient for carcinogenic effects. The oncologist concluded that the Veteran's medical record supported the notion that his long history of smoking was a more likely contributing factor to his development of lung cancer. For these reasons, the August 2012 VA opinion by the VA examiner and the July 2013 VHA opinion by the VA oncologist are afforded great probative value. The Board notes that the Veteran has been diagnosed with lung cancer, which is a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2013) (tumors). Service connection based on a continuity of symptomatology can be warranted under 38 C.F.R. § 3.303(b) (2013) for chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, in this case, the Veteran has not asserted having lung cancer in service, nor has he asserted a continuity of symptomatology after discharge. Indeed, at his April 2013 hearing, the Veteran acknowledged that he had only been diagnosed with lung cancer in the previous year and that he had not experienced any respiratory symptoms prior to that diagnosis. Moreover, the objective evidence of record does not show that the Veteran has continuously had lung cancer since discharge from service. The first objective post-service evidence of a diagnosis of lung cancer is in March 2012, which is approximately 62 years after the Veteran's last period of service. As lung cancer was not shown for many years after the Veteran's periods of service, this weighs against a claim that it was related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Therefore, the Board finds that service connection for lung cancer based on a theory of continuity of symptomatology is neither raised by the record nor warranted by the record. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's lung cancer is etiologically related to his service falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of chest pain, any actual diagnosis of lung cancer requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the symptoms the Veteran experienced in service or following service are in any way related to any current lung cancer requires medical expertise to determine because it involves a complex medical matter. To the extent that the Veteran himself believes that he has lung cancer that is due to his period of service, including exposure to asbestos, smoke screen agents, or diesel fuel, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current lung cancer is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence is of greater probative value than the lay contentions of the Veteran. In sum, the Board finds that the most competent and probative evidence indicates that lung cancer was not shown in service or for many years thereafter, and the most probative evidence fails to link the Veteran's current lung cancer to service, including as due to exposure to asbestos, smoke screen agents, and diesel fuel. Accordingly, service connection for lung cancer is not warranted on any basis. In reaching the conclusions above, 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, 55-57 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for lung cancer is reopened. Entitlement to service connection for lung cancer is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs