Citation Nr: 18146108 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-26 110 DATE: October 30, 2018 ORDER The claim for entitlement to service connection for residuals of papillary thyroid cancer (thyroid cancer), as due to in-service exposure to chemicals, to include polychlorinated biphenyls (PCBs), is granted. The claim for entitlement to service connection for metastatic pulmonary nodules (lung cancer), secondary to thyroid cancer, is granted. FINDINGS OF FACT 1. VA has conceded that the Veteran’s military occupational specialist as an auto-mechanic during the military exposed him to hydraulic fluids, and that it is plausible that he was exposed to PCBs. 2. Competent, probative medical opinion evidence on the question of whether the Veteran's thyroid cancer was etiologically related to his service is, at least, in relative equipoise. 3. Competent, probative medical evidence indicates that the Veteran’s lung cancer was likely etiologically related to his now service-connected thyroid cancer.   CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for thyroid cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for lung cancer, secondary to thyroid cancer, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1972. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for any thyroid and lung cancer conditions. In November 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2015. In December 2015, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claims file. In March 2017, the Board dismissed the claims appeal due to the Veteran’s death in January 2017. In March 2017, the appellant (the Veteran’s surviving spouse) requested that she be substituted for the Veteran in this appeal. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C. § 5121A (2012)). Such request must be filed not later than one year after the date of the Veteran’s death. Id. As provided in the law, a person eligible for substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a)...” Id. The appellant’s request to substitute for the Veteran in this appeal was granted in March 2018. Accordingly, as the appellant has now been substituted as the claimant in this case, the Veteran’s appeals are continued. See 38 U.S.C. § 5121A. As a final preliminary matter, the Board notes that, in July 2018, the Veteran filed an NOD in July 2018 with the March 2018 denied service connection for the cause of death. Thus, although issuance of a statement of the case is required in response to a notice of disagreement, here, as the NOD was recently filed and the AOJ is in the process of developing the claims, the matter is not currently before the Board, and remand for issuance of an SOC is not appropriate. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303. In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303 (d). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Service connection may also be established on a secondary basis for disability that is proximately due to or the result of, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of current disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether elements of a claim are met is based on an analysis of all the evidence of record, and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. 5107(b); 38 C.F.R. 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-57 (1990). Initially, the Board notes that VA has conceded that the Veteran’s military occupational specialty as an auto-mechanic during the military exposed the Veteran to hydraulic fluids, and that it is plausible that he was exposed to PCBs. See October 2014 Compensation and Pension Exam Inquiry. In February 2012 correspondence, a physician explained that there is no doubt the Veteran was exposed to hazardous material and that there is a really high probability that this contributed to his cancer. The physician noted the Veteran was exposed to lubricants, fuels, and hydraulic fluids and attached a product list from 1972 of various chemicals he was routinely exposed to. The physician noted the Veteran’s thyroid cancer was one of the most aggressive forms of thyroid cancer and when they began treating him, they eventually removed his thyroid and he has been treated with chemo and radiation. The Veteran was exposed to PCBs and Reliance Electric produced many electric motors for Joy Manufacturing company, which were used extensively in the military. He also cited a National Center for Environment Assessment office of Research and Development and the U.S. Department of Environmental Protection Agency released a study entitled “PCBS: Cancer Dose-Response Assessment and Application to Environmental Mixtures,” in which it discussed how thyroid gland follicular cell adenomas and carcinomas were increased in males and it also discusses that thyroid tumors are noted for PCBs and the development of benign and malignant neoplasms. The physician also pointed out that the Endocrine Society published a scientific statement titled “Endocrine-Disrupting Chemicals,” in which it included PCBs and the latency of exposure and the manifestation of a disorder, specifically, consequences of developmental exposure may not be immediately apparent but may manifest during aging. In an October 2012 medical opinion, a private hematologist/oncologist opined that the Veteran’s thyroid cancer was initially diagnosed in 2006, which had since become metastatic and refractory to iodine therapy. She explained the Veteran had a history of exposure to industrial chemicals during his service, and expressed her belief that his metastatic papillary thyroid cancer may have been related to this exposure. In November 2012, the Veteran submitted an assessment, PCBs: Cancer Dose-Response Assessment, which indicates that exposure to PCBs revealed increased incidences of live tumors in female rats and the tumor incidences at the highest doses were higher for a 12-month exposure than for a 24-month lifetime exposure, which indicate that less-than-lifetime exposure can quickly induce high incidences of early stages of tumor development. In a January 2015 VA medical opinion, the physician provided a negative opinion, stating that literature on the carcinogenesis of PCB in humans is not established. It is noted that the Veteran was in the military service for under three years. It appears he worked as a civilian mechanic for over thirty years. The evidence does not indicate that hydraulic fluids (and PCBs) cause cancer in humans. This level of evidence does not rise to the level of “as least as likely than not” or equipoised evidence. He opined that the claimed conditions are not due to military service and that the exposures to hydraulic fluids (which may have contained PCBs) during military service did not cause his claimed conditions (papillary thyroid cancer with metastasis to the lungs). In a March 2015 VA opinion, the nurse practitioner stated a review of the literature reveals that exposure to fuels, such as petroleum, oils, and lubricants, may cause possible health effects, however, the “Scientific research on long-term effects is not conclusive,” according to the literature. Many variables exist, such as how exposure occurred, length of time exposed, and personal factors such as age, gender, genetic traits, and diet. Health effects may include irritation to unprotected skin, eye and upper respiratory irritation, fatigue, breathing difficulty, headaches, dizziness, and sleep disturbance. Further review of the available literature states that the “lung is also a potential target for cancer risk following PCB exposure.” The clinician went on to state that, at this time, there is no well documented occupational etiology for thyroid cancer. Written advocacy submissions by Veteran’s physicians/providers were respectfully considered but do not change the lack of medical or clinical evidence of claimed conditions. She also opined that the Veteran’s lung cancer was secondary to his thyroid cancer. She explained the Veteran’s cancer began in the thyroid gland, which is the primary cancer site, and spread through the bloodstream or the lymph system to the Veteran’s lungs. Therefore, the lung cancer is a metastasis of the thyroid cancer, and is a result of the claimed thyroid cancer. In a March 2015 VA opinion, the chief physician of the VA Hematology and Oncology Division indicated that the Veteran had ongoing treatment with her and that she had reviewed his occupational history while he was in the military, to include that he worked as a mechanic working on trucks and tanks and daily exposure to hydraulic fluid during that time. She explained that she was concerned that his metastatic papillary thyroid cancer is associated with significant exposure to hydraulic fluid, and hence, polyhalogenated aromatic hydrocarbons (PHAH), such as polychlorinated biphenyl (PCB). Although there is no specific case-control epidemiologic studies looking at PHAH, PCBS, and thyroid cancer, more recently, a Bioscience Hypotheses in 2008 indicated there is an increase in risk of thyroid cancer with exposure to Ethers. She indicated she reviewed his military health and occupational history, as well as his history of thyroid cancer and years of treatment with her in rendering the opinion. Based on the evidence of record, and after resolving all benefit of the doubt in the Veteran’s favor, the Board finds that service connection for thyroid cancer and lung cancer is warranted. As noted above, prior to his death, the Veteran had then current diagnoses of thyroid and lung cancer. Thus, the fundamental criterion of current disability is met for each claim. Next, addressing the in-service injury or disease requirement, the Board notes that the Veteran's service treatment record do not document lung or thyroid cancer in service. However, the VA has conceded the Veteran’s MOS exposed him to various chemicals, including significant exposure to hydraulic fluid, to plausibly include PCBs. Such plausible exposure tends to support a finding of in-service injury for service connection purposes. Thus, for thyroid cancer, particularly, the remaining question is whether such disability was medically related to service, to specifically include the exposure to chemicals therein. In this case, the record reflects conflicting medical opinions on this point. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Both the negative and positive opinions above were rendered by competent medical professionals. However, the Board notes that the October 2012 and March 2015 private opinions were provided by hematologists/oncologists, with the latter being the Chief of the Hematology and Oncology Department. A private physician also provided the February 2012 positive opinion. The negative VA opinions were provided by an occupational physician and nurse practitioner. While the Board finds no reason to question the credentials and experience of any of the above-mentioned physicians and clinician, the Board nonetheless finds that the negative January and March 2015 VA opinions are of limited probative value because they are confusing and contradictory. Here, the January 2015 VA physician stated that there is some evidence that PCBs may be endocrine disrupters and that PCBS may interfere with thyroid hormone action, but this cannot equate with carcinogenesis of the thyroid gland, however, he explained there is some evidence of tumorigenicity in animals, but that the results of the individual studies reflect a lack of clinically apparent illness in situations with high PCB exposure and that the literature on cancer of PCB in humans is not established and the Veteran. Here, while indicating that there is no literature on cancer from PCB in humans, the physician nonetheless provided a negative opinion and did not address the findings as noted in the positive medical opinions and medical treatise submitted by the Veteran. Further, he also noted that there is some evidence of tumorigenicity in animals, but does not elaborate on this significant finding. Finally, the physician noted the Veteran was in the military for under three years and a civilian mechanic for over thirty years, but does not address the article submitted by the Veteran which found increased tumors in mice with shorter length in exposure to PCBs. Regarding the March 2015 negative opinion provided by the nurse practitioner, she added that further review of the available literature states that the “lung is also a potential target for cancer risk following PCB exposure,” and there is no well-documented occupational etiology for thyroid cancer. This opinion, however, tends to support a causal relationship between lung cancer and PCB exposure. Although the October 2012 and March 2015 positive opinion providers did not utilize the term “at least as likely as not, the oncologists both concluded that PCB exposure may or could cause thyroid cancer, and the February 2012 opinion provider concluded that it was highly probable that this was the case, with a detailed rationale and citations to multiple medical articles. The opinions of the oncologists who treated the Veteran extensively indicate review of medical literature and the Veteran’s entire claims file and reported history, and are accompanied by specific rationale that is not inconsistent with the evidence of record. Therefore, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Regarding the Veteran’s lung cancer, the March 2015 VA opinion provider explained that the Veteran’s lung cancer was caused by his now service-connected thyroid cancer. There is no contrary opinion of record. The Board emphasizes that VA is not free to ignore a medical opinion or pertinent medical findings (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject such a medical opinion based on its own medical judgment (see Obert v. Brown, 5 Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based, in part, upon lay assertions. Here, the Board finds no reason to question the probative value of such opinion. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Given the totality of the evidence, to include the credible lay assertions and competent, probative medical opinion evidence noted above, and resolving all reasonable doubt on any element(s) of each claim in the Veteran's favor, the Board finds that the criteria for service connection for thyroid cancer and for secondary service connection for lung cancer are met. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell