Citation Nr: 1336172 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-45 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for lung cancer, including as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1957 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant appeared at a Travel Board hearing at the RO in September 2011 before a Veterans Law Judge who is no longer employed by the Board. The Board previously adjudicated the appellant's claim on appeal in April 2012. The appellant's claim for service connection for lung cancer, including as secondary to asbestos exposure, was denied. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The appellant's attorney (whose representation was limited to the Court) and VA's General Counsel filed a Joint Motion with the Clerk of the Court requesting that the Court vacate the Board's decision and remand the case to the Board for further development and re-adjudication in accordance with the directives of the November 2012 Joint Motion. The Court granted the Joint Motion for Remand in November 2012. The claim was returned to the Board and in March 2013, the Board remanded the case for a hearing. In June 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In September 2013, the Board requested a Veterans Health Administration (VHA) medical expert opinion. A VHA opinion was received in October 2013. FINDING OF FACT The competent medical, and competent and credible lay, evidence of record demonstrates that the appellant's lung cancer is related to asbestos exposure in service. CONCLUSION OF LAW Lung cancer was incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant'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, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 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 appellant 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance The claim has been granted in full, as discussed below. As such, the Board finds that any defect related to VA's duties to notify and assist under the VCAA on the claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2013); Mlechick v. Mansfield, 503 F.3d 1340 (2007). II. Legal Criteria and Analysis The appellant asserts that his lung cancer was caused by exposure to asbestos in service. For the reasons that follow, the Board finds that service connection is warranted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), for certain chronic disabilities, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). A March 2001 private treatment record reflects that the appellant was diagnosed with Stage III A squamous cell carcinoma of the lung. A June 2007 VA examination report indicates that the appellant was status post lobectomy/thoracotomy with reduced pulmonary function and scar. Thus, the appellant has residuals of lung cancer. The appellant's service personnel records indicate that he served aboard the USS Vesole and the USS Morton as a radarman. The appellant asserted that he performed duties on an ad hoc basis, to include "chipping and grinding paint which contained asbestos and lead. Also floor tile which contained asbestos was removed in some passageways." See November 2009 substantive appeal. The appellant also testified that he was exposed to asbestos at the September 2011 and June 2013 Board hearings. The appellant is competent to report that he performed ad hoc duties and the Board finds his statements in this regard to be credible. Thus, the Board finds that the appellant was likely exposed to asbestos in service. The appellant's private treatment records indicate that the appellant was a cigarette smoker until his lung cancer diagnosis. Records from Lenoir Memorial Hospital note that the appellant reported a 56 year history of smoking 2 and a half packs per day. The appellant was afforded a VA examination in June 2007. The June 2007 VA examiner found that the Veteran's lung cancer, "cannot be related to military service without mere speculation given the claimant's diverse occupational exposures following his military service." The VA examiner noted that review of service medical records show normal chest x-ray and photofluoroscopic lung exam. There were no records of any lung related problems during service. As the VA examiner indicated that he could not provide an opinion without mere speculation, the VA examination report has limited probative value. In a February 2009 letter, P.R.W., M.D., stated that the appellant had non-small cell lung cancer. He stated that: "It is known that the combination of the cigarette smoking and asbestos exposure is synergistic in its potential to induce lung cancer and therefore it is quite possible that his asbestos exposure did contribute to his development of this disease." Dr. P.R.W.'s statement is equivocal. Thus, it has limited probative value. In an undated letter, J.K.J., M.D., stated that the appellant recalled frequent exposure to asbestos in his living and working quarters during service in the US Navy. He stated that "asbestos exposure has been associated with increased lung disease, mesothelioma and other lung cancers in multiple studies." Dr. J.K.J. did not specifically indicate whether the appellant's lung cancer was related to exposure to asbestos. In an October 2011 letter, J.F.M., M.D., stated that: Any of many standard textbooks dealing with the epidemiology of lung cancer state that while tobacco usage is the leading environmental risk factor for development of lung cancer, asbestos exposure independently increases that risk. When combined with smoking exposure, asbestos exposure increases an individual's risk of development of lung cancer far more than the sum of the separate effects of smoking and asbestos exposure. The two factors combined exponentially increase one's risk of development of lung cancer. Looking back at your pathology report, the type of lung cancer you developed is exactly the type that a person would be expected to develop from the combination of smoking and asbestos exposure. Dr. J.F.M. did not specifically indicate whether the appellant's lung cancer was related to his exposure to asbestos in service. Thus, although the October 2011 letter is probative, it does not demonstrate that the appellant's lung cancer is related to service. In an October 2013 VHA opinion, a VA physician opined that: . . . it is more likely than not that the appellant's cancer is, in part related to his in-service exposure to asbestos. In this case, the duration of smoking is clearly longer than that of the asbestos exposure, however the effect and contribution of each carcinogen in the development of lung cancer would be difficult to separate. As such, asbestos related pulmonary effects can remain silent for 20-30 years. Given that the veteran continued to smoke after leaving the service, it is more likely that the carcinogenic effects of cigarettes were enhanced due to his prior exposure to asbestos. The VA physician noted that this opinion was supported by research that demonstrates an increased risk of lung cancer in patients with exposure to asbestos. The Board finds the October 2013 VHA opinion to be probative. The VA physician specifically found that is more likely than not that the appellant's cancer is, in part related to his in-service exposure to asbestos and provided a thorough rationale for the opinion. The Board finds that the overall evidence demonstrates that the appellant's lung cancer was caused or aggravated by his in-service exposure to asbestos. As noted above, the Board finds the October 2013 VHA opinion to be probative. Although the letters from Dr. P.R.W., Dr. J.K.J., and Dr. J.F.M. have limited probative value because the doctors did not specifically opine that the appellant's lung cancer was related to his in-service asbestos exposure, the letters support the appellant's claim that his lung cancer is related to asbestos exposure. The Board finds the October 2013 VHA opinion to be more probative than the June 2007 VA examiner's opinion. The June 2007 VA examiner provided the opinion prior to the Board's finding that the appellant was likely exposed to asbestos in service. In contrast, the October 2013 VA physician provided a thorough rationale for the opinion and considered the fact that the appellant was likely exposed to asbestos in service. In sum, the Board finds that the appellant was likely exposed to asbestos in service. The appellant has residuals of lung cancer. A preponderance of the evidence of record, particularly the October 2013 VHA opinion, demonstrates that the appellant's lung cancer is related to his exposure to asbestos in service. Consequently, the Board finds that a preponderance of the evidence supports the appellant's claim for entitlement to service connection for lung cancer. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for lung cancer as secondary to asbestos exposure is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs