Citation Nr: 1331906 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-04 303A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Pension Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for lung cancer with metastasis to the brain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from May 1980 to April 2007. He died in February 2010. An October 2010 administrative decision found that the Veteran's surviving spouse was an eligible claimant for substitution in the Veteran's appeal for benefits. Accordingly, she has been substituted as the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction currently rests with the Regional Office and Pension Center in Philadelphia, Pennsylvania. In February 2013, the Board requested an opinion from a medical specialist at the Veterans Health Administration (VHA). In June 2013, after the requested opinion was received, the Board informed the appellant that it had requested a specialist's opinion in conjunction with the adjudication of her appeal, provided her a copy of that opinion and indicated that she was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. The appellant submitted additional argument in August 2013. FINDING OF FACT The evidence establishes that the Veteran's lung cancer had onset within one year following his separation from service. CONCLUSION OF LAW The criteria for service connection for lung cancer, with metastasis to brain, are met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the appellant. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under 38 C.F.R. § 3.309(a), malignant tumors are regarded as a chronic disease. In order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a) (3). Review of the Veteran's service treatment records does not show that malignant tumors or cancer were documented during the Veteran's period of active military service. The post-service evidence reflects that the Veteran's cancer was first discovered in late September 2008 or early October 2008, roughly 18 months after his separation from service. The record reflects that in October 2008 the Veteran was noted to have had several episodes of near-syncope over the past four to five weeks. Upon subsequent testing, he was discovered to have lung cancer that had metastasized to the brain. To that end, the evidence establishes that it is more likely than not that the Veteran's lung cancer had onset within the one-year post-service period, even though it was not formally diagnosed until October 2008. In a November 2009 letter Dr. Michaelsen, a private oncologist, opined that the Veteran's lung cancer was more than likely present for six months prior to its diagnosis in October 2008. Similarly, in May 2013, a VHA specialist reviewed the evidence in the claim file and indicated that he agreed with Dr. Michaelsen's opinion. The specialist explained that while it was impossible to determine with certainty when a particular cancer first develops, it can be estimated based on an understanding of the biology of the development of cancer. He further explained that most or all lung cancers develop over a matter of years rather than weeks or months, and most or all non-small cell lung cancers have their onset more than six months before they cause any symptoms. The VHA specialist concluded that he was confident that the Veteran's cancer was present in April 2008, and it was quite likely that it was present in April 2007, even if it did not cause symptoms until late August or early September 2008. The medical opinions constitute competent and persuasive evidence with respect to the question of onset of the Veteran's lung cancer, and support rather than oppose the claim. There are no opinions of record that show the Veteran's lung cancer was not present on or before April 30, 2008, at the end of the one-year presumptive period, or otherwise contradict the November 2009 or May 2013 medical opinions. For the appellant to prevail in the claim, it must only be demonstrated that there is an approximate balance of positive and negative evidence. The Board finds that the evidence establishes that the Veteran's cancer initially manifested within the one-year presumptive period, even if it was not formally diagnosed until October 2008. Accordingly, service connection for lung cancer with metastasis to the brain is warranted. ORDER Service connection for lung cancer with metastasis to the brain is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs