Citation Nr: 18140460 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-11 889 DATE: October 4, 2018 ORDER New and material evidence has been received to reopen a service connection claim for lung cancer. Service connection for lung cancer is granted. Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. In an unappealed May 2009 rating decision, the RO denied the Veteran’s service connection claim for lung cancer. 2. Evidence received since the last final rating decision in May 2009 raises a reasonable possibility of substantiating the claim of service connection for lung cancer. 3. The Veteran died in May 2015; the certificate of death reflects that an underlying cause of death was adenocarcinoma of the lung. 4. The appellant is the Veteran’s surviving spouse, who was properly substituted as the claimant to continue the Veteran’s pending claim and appeal. 5. The evidence is at least in equipoise as to whether a relationship exists between the Veteran’s exposure to contaminated water at Camp Lejeune and his fatal lung cancer. 6. The service-connected lung cancer contributed substantially and materially to the Veteran’s death, or hastened it, or otherwise aided or lent assistance to his death. CONCLUSIONS OF LAW 1. The May 2009 rating decision denying service connection for lung cancer is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The additional evidence received since the May 2009 rating decision denying service connection for lung cancer is new and material, and that service connection claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The Veteran’s surviving spouse is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 4. Resolving all reasonable doubt in the appellant’s favor, the criteria to establish service connection for lung cancer are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. Resolving all reasonable doubt in the appellant’s favor, the criteria to establish service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 1970 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated August 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In a September 2015 rating decision, the St. Paul, Minnesota RO continued to deny the claim. Unfortunately, the Veteran died in May 2015 during the pendency of his appeal. The Board notes that in cases where a veteran died on or after October 10, 2008, an eligible person, such as a surviving spouse, may be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A. The substitute claimant is then allowed to continue adjudication of the claim. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). In April 2016, VA substituted the appellant in accordance with the provisions of 38 U.S.C. § 5121A, and the appellant timely perfected this appeal in June 2016. The appellant is appropriately recognized as the substitute-claimant in this case. 38 U.S.C. § 5121A. In July 2017, the Board granted the appellant’s request for a 90-day extension of time to allow for the submission of additional evidence and argument. Shortly thereafter, the appellant’s representative submitted additional evidence, a waiver of initial consideration of the evidence by the RO, an appellate brief, and a waiver of the remainder of the extension period. See Letter from J.M.W. dated July 18, 2017. Therefore, the Board now proceeds with review of the appellant’s claim. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Petition to Reopen Previously Denied Service Connection Claim Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. §7105; 38 C.F.R. §§ 3.160(d), 20.302. The Veteran did not appeal the May 2009 rating decision that, as relevant here, denied service connection for lung cancer, nor was new and material evidence received within a year of issuance of the notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” “The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find.” Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). “New” evidence is defined as 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a May 2009 rating decision, the RO denied the Veteran’s original service connection claim for lung cancer. In September 2013, the Veteran sought to reopen a service connection claim for lung cancer. Based on the procedural history of the case, the last final decision pertinent to the Veteran’s lung cancer claim is the May 2009 rating decision. The evidence of record at the time of the May 2009 rating decision consisted of the Veteran’s February 2009 claim for compensation, military personnel records, service treatment records (STRs), and VA and private treatment records. Subsequent to the May 2009 rating decision, evidence has been added to the claims file relevant to the Veteran’s claim for service connection for lung cancer, including the Veteran’s September 2013 petition to reopen the claim, the Veteran’s statements dated September 2013 and June 2014, a July 2014 VA examination report, a June 2015 death certificate, and a July 2017 private medical opinion. The Board finds that the new evidence relates to the previously unestablished element of a causal relationship between the Veteran’s lung cancer and service, and raises a reasonable possibility of substantiating such claim. Accordingly, new and material evidence has been received, and to this extent only, the claim of service connection for lung cancer is reopened. 2. Service Connection for Lung Cancer Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e. a nexus, between the current disability and an in-service precipitating disease, injury, or event. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In a Dependency and Indemnity Compensation (DIC) claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection for a disease associated with exposure to contaminated water at Camp Lejeune may be established on a presumptive basis if the evidences shows the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Veteran, and now the appellant, have asserted that the Veteran’s lung cancer was caused by his exposure to contaminated water at Camp Lejeune during service. See Appellate brief dated July 18, 2017 at pg. 2. A February 2015 VA treatment record reflects that the Veteran was diagnosed with carcinoma of the lung (lung cancer) metastatic to lymph nodes, pancreas, and adrenal glands; a June 2015 VA treatment record described the disease as stage four adenocarcinoma of the lung. Although lung cancer is a chronic disease under 38 C.F.R. § 3.309(a) (as a malignant tumor), after a review of all the evidence of record, lay and medical, the Board finds that the Veteran’s lung cancer was not incurred in-service, did not manifest within one year of discharge from service, and symptoms of lung cancer have not been continuous since service. The Veteran’s STRs are silent as to complaints or diagnoses of lung cancer, and the earliest record evidence of lung cancer is not shown until decades after service separation, when the Veteran was diagnosed with a tumor in the right lung in 2006. Additionally, while the Veteran’s service personnel records show that he served at Camp Lejeune for no less than 30 days, and VA has conceded his exposure to contaminated water at Camp Lejeune, lung cancer is not among the diseases identified in 38 C.F.R. § 3.309(f) as being associated with exposure to contaminated water at Camp Lejeune. Therefore, the criteria for presumption service connection under 38 C.F.R. §§ 3.309(a) and 3.309(f) are not for application. Nevertheless, the appellant is not precluded from establishing service connection for the cause of the Veteran’s death through proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA has recognized that exposure to chemicals such as benzene, vinyl chloride, trichloroethylene, and tetrachloroethylene may result in lung cancer, particularly in the context of contaminated drinking water at Camp Lejeune between August 1953 to December 1987. See Veterans Benefits Administration Training Letter 10-03 (Apr. 26, 2011); Veterans Benefits Administration Fast Letter 11-03 (Jan. 28, 2013). The Veteran’s service personnel records show that he was stationed at Camp Lejeune for more than 30 days during that period. A VA medical opinion dated July 2014 was obtained during the pendency of the Veteran’s claim. The VA medical examiner opined that the Veteran’s lung cancer was less likely than not related to his exposure to contaminated water at Camp Lejeune. The examiner explained that the Veteran’s long history of smoking and post-service occupation as a truck driver with potential exposure to cancer causing chemicals in Diesel fumes and other byproducts of gasoline combustion were more likely causes of his cancer. The examiner cited medical literature in support of his opinion. See VA examination report dated July 8, 2014. In contrast, a medical opinion by private physician N.T., MD dated July 2017, submitted by the Veteran’s attorney, opines that it is more likely than not that the Veteran’s exposure to known contaminants in the Camp Lejeune water supply such as trichloroethylene (TCE), tetrachloroethylene (PCE), and benzene contributed to the development of his malignancy, which led to his death. N.T. acknowledged the Veteran’s smoking history and post-service exposure to combustion engine fumes in his occupation as a truck driver, and emphasized that scientific research demonstrates that exposure to TCE and PCE increases the risk of developing cancer. See Letter from N.T., MD dated July 3, 2017 at pgs. 1-2. N.T. cited medical literature and study results in support of his opinion. Id. Additionally, N.T. opined that the Veteran’s lung cancer led to his death when it became metastatic and he developed complications from treatment. Id. at pg. 3. The July 2014 VA medical opinion and the July 2017 medical opinion submitted by private physician N.T. are both competent, credible and probative: Both opinions were authored by licensed physicians, who reviewed the Veteran’s claims file and were therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his lung cancer; the opinions were each based on a review of the evidence of record as well as relevant medical literature. Both opinions are consistent with the medical evidence of record, and contain clear conclusions with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Accordingly, the Board finds that the July 2014 and July 2017 medical opinions are highly probative and persuasive medical evidence in this case. Review of the record shows that there is an approximate balance of positive and negative evidence regarding evidence of a nexus between the in-service exposure to contaminated water at Camp Lejeune and the Veteran’s lung cancer, placing the issue in equipoise. Accordingly, the Board resolves any doubt in favor of the appellant, and finds that service connection for Veteran’s lung cancer is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. Cause of the Veteran’s Death DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to constitute a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). As determined above, service connection for the Veteran’s lung cancer is warranted. A June 2015 death certificate establishes that the immediate cause of the Veteran’s death in May 2015 was acute hemorrhagic shock, with metastatic adenocarcinoma of the lung identified as an underlying cause of death. See Certificate of Death dated June 2, 2015 issued by the Arkansas Department of Health. Therefore, the Board resolves any doubt in favor of the appellant, and finds that the Veteran’s service-connected lung cancer contributed substantially and materially to the Veteran’s death, or hastened it, or otherwise aided or lent assistance to his death. Accordingly, service connection for the cause of the Veteran’s death is warranted. 38 C.F.R. § 3.312(c)(1). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel