Citation Nr: 1804592 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-40 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD A. Sami, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1953 to December 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2016 rating decision of the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA), which in pertinent part denied service connection for lung cancer. A brief review of the procedural history is necessary to clarify the issue currently before the Board and the actions taken herein. As noted, a February 2016 rating decision denied the Veteran's claim of entitlement to service connection for lung cancer. See February 2016 Rating Decision. That decision additionally denied entitlement to service connection for an eye disability, and granted an increased 70 percent rating for the Veteran's service-connected bilateral hearing loss, effective November 13, 2015. Subsequently, the Veteran filed a new claim that indicated he was seeking a 100 percent disability rating and listed disabilities including lung cancer pulmonary problems, an eye condition, and hearing loss. See August 2016 Veteran's Application for Disability Compensation (on VA Form 21-526EZ). A November 2016 rating decision reconsidered the claims adjudicated in the February 2016 rating decision, as well as denying service connection for a back disorder, cervical spondylosis, and pneumonia. See November 2016 Rating Decision. In December 2016, the Veteran submitted a Notice of Disagreement (NOD) in which he described the symptomatology associated with his lung cancer, but did not list any specific disabilities or further indicate the issues addressed in the November 2016 rating decision with which he disagreed. See December 2016 NOD. Later that month, the RO requested clarification of the NOD, asking that the Veteran identify the issues that he intended to appeal, and stating that, should the Veteran fail to respond after 60 days, no further action would be taken on his appeal. See December 2016 Notification Letter. However, the RO ultimately issued a Statement of the Case (SOC) as to the denial of service connection for lung cancer. To date, the Veteran has not responded to the RO's request for clarification. As such, the Board has characterized the appellate issue as reflected in the SOC and as indicated on the title page of this decision. This interpretation is supported by the fact that the Veteran's NOD was limited to a discussion of the symptoms and treatment associated with his lung cancer residuals, and did not address any additional claims denied by the RO. See also 38 C.F.R. 20.201(a)(4) (2017). The Board additionally notes that the Veteran timely appealed a November 2016 rating decision concerning the rating for his service-connected bilateral hearing loss in an August 2017 NOD. The RO issued an SOC addressing the issue in October 2017. See October 2017 SOC. The Veteran, however, did not file a substantive appeal within 60 days of the date of the October 2017 SOC. See 38 C.F.R. §§ 20.200 , 20.202, 20.302(b) (2017). Accordingly, the Board finds that the issue of an increased rating for the Veteran's service-connected bilateral hearing loss is not before the Board. Cf. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(7) (2017). 38 U.S.C § 7107(a)(2) (2012). FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's lung cancer did not manifest during his active duty service or for many years thereafter; nor is it otherwise related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify the claimant of information and evidence necessary to substantiate a claim for VA disability compensation. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). The Veteran filed his November 2015 claim under the Fully Developed Claim (FDC) Program, a VA initiative established to expedite the claims process. Under this program, a Veteran must simultaneously submit with the claim relevant evidence and information that enables VA to obtain outstanding evidence to develop the claim. The FDC form contains a notice that explains the evidence required for claims as well as the respective duties of the veteran and VA. See VA Form 21-526EZ. The Board finds that the FDC notice satisfies the duty to notify. VA also has a duty to make reasonable efforts to assist in obtaining evidence to substantiate the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The Veteran's service treatment, post-service medical treatment records, and personnel records were obtained. The Veteran did not provide releases to collect any private treatment records and did not identify additional sources for relevant evidence. As part of the duty to assist, VA must provide a medical examination or obtain a medical opinion when such material is necessary to make a decision on the claim. 38 C.F.R § 3.159(c)(4)(i). The Veteran was not afforded a medical examination or opinion in regards to his claim for service connection for lung cancer. The Board finds that the absence of such an evaluation is not prejudicial to the Veteran's claim, as he has not met the legal criteria to warrant an examination or opinion, and the present record provides sufficient evidence to decide the issue. VA's duty to provide a medical examination or opinion is triggered when the record contains (1) competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 C.F.R § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With regard to the Veteran's service connection claims for lung cancer, the second, third, and fourth McLendon elements are not satisfied. See McLendon, 20 Vet. App. at 83. As discussed below, the Veteran does not state, and the evidence of record does not otherwise suggest, that there was an in-service disease, injury, or event leading to the development of lung cancer, or that the cancer developed during a presumptive period post-service. Thus, the second element is not satisfied. As the second element is not satisfied, the third element is moot with regard to a direct relationship to an in-service disease, injury, or event. Finally, the fourth element is not satisfied, as there is sufficient evidence to decide the case. See id. Hence, the Board concludes that the VA has fulfilled its duty to assist and a medical examination or opinion is not warranted. See 38 C.F.R. § 3.159(d). II. Service Connection 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. § 1110 (2012); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for certain "chronic" conditions, including cancer, when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). Furthermore, service connection for certain "chronic" diseases, including cancer, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For reasons provided below, the Board finds that service connection for lung cancer is not warranted on a direct or presumptive basis. The Board acknowledges that the Veteran was diagnosed with lung cancer, status post right lung lobectomy, and, therefore, the first element of service connection (a current disability) has been met. See June 2007 Boston HCS VAMC History & Physical Exam. However, after reviewing the entire record, the Board has determined that the evidence does not establish an in-service event, injury, or disease linking lung cancer to the Veteran's periods of service. In this regard, the Veteran was diagnosed with lung cancer in 2005 after leaving military service. See August 2005 VA Pulmonary Consult (reflecting a diagnosis of squamous cell carcinoma of the lung). The service treatment records note an isolated occurrence when the Veteran complained of pain while breathing and tightness in his chest, along with a sore throat. See July 1956 Sick Call Treatment Record. Upon clinical evaluation, his lungs were noted to be clear. Id. Additionally, the Veteran's medical examinations upon entry and discharge indicate no lung abnormalities, and his chest x-rays were negative for any problems. See November 1953 Report of Medical Examination; December 1956, Report of Medical Examination. Moreover, although the Veteran has communicated his difficulties in breathing since his 2005 surgery, he has not put forth any argument or assertion to support his claim that his current lung pathology is related to his active service. Neither is there any evidence, medical or otherwise suggesting any relationship between his active service and the onset of lung cancer nearly fifty years after discharge. See July 2017 VA 9 Form (stating "on 2 liter oxygen at night time"); December 2016 Notice of Disagreement (stating "breathing-using oxygen," "shortness of breath when walking after lung surgery," and "climbing 6 stairs very short of breath"). Accordingly, service connection for lung cancer on a direct basis is not warranted. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with cancer, which is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, the medical evidence does not show, and the Veteran has not alleged, that the lung cancer manifested in service or within one year of his separation from service. The medical records indicate that he was diagnosed with lung cancer in 2005, and the 1956 separation examination and service treatment records are silent for diagnoses or symptoms of lung cancer. The preponderance of the evidence is against a finding that the Veteran's cancer manifested to a sufficient degree either in service or within one year of his separation. Therefore, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology for lung cancer is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). For these reasons, the Veteran's claim for service connection for lung cancer is denied. ORDER Service connection for lung cancer is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs