Citation Nr: 1817955 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-06 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for lung cancer, to include as due to exposure to asbestos and ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to September 1964. He died in August 2012 and the appellant is his widow. At the outset, the Veteran's death occurred after October 10, 2008, and so 38 U.S.C. § 5121A and implementing regulation 38 C.F.R. § 3.1010 are applicable. As provided for in the statute, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title." Moreover, the RO issued a favorable decision in January 2013 accepting the appellant as an eligible substitute claimant pursuant to 38 C.F.R. § 3.1010. Thus the appellant's claim is not one for accrued benefits, but remains the Veteran's original claim, into which she is substituted in his stead. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, denied service connection for lung cancer as a result of exposure to asbestos and/or radiation. This matter was remanded in February 2017 for additional development, to include obtaining a VA medical opinion. FINDINGS OF FACT 1. The Veteran's documented military occupation as quartermaster is shown to have a minimal risk of exposure to asbestos, and competent, probative evidence of record attributed his lung cancer that was first diagnosed in 2010, to his 40-year history of smoking one-half to two packs of cigarettes per day, rather than to any asbestos exposure. 2. A preponderance of the evidence is against a finding that the Veteran had exposure to ionizing radiation during service; lung cancer did not have its clinical onset in service and is not otherwise related to active duty; lung cancer was not exhibited within the first post service year. CONCLUSION OF LAW The criteria for establishing service connection for lung cancer, to include as due to exposure to asbestos and/or ionizing radiation, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disorder manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Pertinent to claims based on exposure to asbestos, there is no specific statutory or regulatory guidance with regard to claims of service connection for asbestos-related diseases. However, VA's Adjudication Procedures Manual addresses these types of claims. See M21-1, Part IV, Subpart ii, Chap. 1, Sec. I, Para. 3 [hereinafter M21-1] (M21-1, IV.ii.1.I.3), entitled "Developing Claims for Service Connection for Asbestos-Related Diseases" (updated Aug. 17, 2017) and M21-1, IV.ii.2.C.2 entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos" (updated Nov. 2, 2016). The manual provisions acknowledge that inhalation of asbestos fibers or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). M21-1, IV.ii.2.C.2.b. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, IV.ii.2.C.2.g. Additionally, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed Veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" such as lung cancer may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. First, a "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d)(2). Evidence which may be considered in rebuttal of service incurrence of a listed disease listed will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). Second, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include, but may not be limited to, the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service treatment records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in section 3.311(b)(2) become manifest 5 years or more after exposure. Third, and notwithstanding the above, the Court has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. 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 Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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 appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has 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). During his lifetime, the Veteran claimed his lung cancer was due to military service, to include as due to asbestos and/or radiation exposure. Relevant to asbestos exposure, the Board finds the Veteran's claimed exposure to asbestos unlikely based on his MOS as a quartermaster. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and others. M21-1, IV.ii.2.C.2.d. Common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. M21-1, IV.ii.2.C.2.a. Notably, the occupations involving exposure to asbestos involve physically handling materials containing asbestos. The record does not show that the Veteran had a military occupational specialty that would indicate asbestos exposure. See M21-1, IV.ii.1.I.3.c (listing MOSs with their probability of asbestos exposure) (last updated Aug. 17, 2017). Indeed, his MOS listed as quartermaster is shown to have minimal exposure to asbestos. Further, June 2012 correspondence from the Department of the Navy indicated that there were no reports of occupational exposure to ionizing radiation pertaining to the Veteran. In a March 2017 medical opinion, the examiner reviewed the claims file and indicated that the Veteran's lung cancer was not likely related to his military service. He noted that the Veteran's Navy Occupation and Training History indicate that the Veteran was a Quartermaster. He also noted that his specialty was shown to have a minimal probability to asbestos exposure. The examiner found that based on this determination, it was not possible to conclude with 50 percent or greater probability that the Veteran had a job description with a high probability for asbestos exposure. Furthermore, the examiner noted that the Veteran had a well-documented history of heavy smoking as noted in the VA treatment records. The examiner concluded that given the well-known association of heavy smoking and lung cancer; and Naval MOS listed as "minimal exposure", a nexus with asbestos exposure is less than 50 percent likely whereas, he noted, the nexus with smoking is far more likely with 50 percent or greater probability. The examiner also opined with regard to possible other causes, to include toxic chemicals or paint solvents, he indicated that with review of the expert literature available to, he was unaware of any toxic effects of chipped paint and paint solvents that would cause lung cancer 40 plus years after the exposure ceased. Considering the probative evidence of record, the Board finds that service connection for lung cancer on the basis of claimed exposure to asbestos or other toxic chemicals is not warranted. The final theory of entitlement to service connection for lung cancer involves the Veteran's claimed exposure to ionizing radiation while he participated in nuclear weaponsman training during service from April 1961 to May 1961, as documented in his service personnel records. Although the personnel records document such training, as noted above, the Department of the Navy informed VA that there were no reports of occupational exposure to ionizing radiation pertaining to the Veteran. Thus, the Board finds there is no indication that service connection for lung cancer due to ionizing radiation is warranted. Further, there would be no reason to obtain a medical opinion with regard to this theory of entitlement; and remanding the case for such opinion would result in unnecessary delay. The Board has considered the lay statements that the Veteran's lung cancer is the result of claimed in-service asbestos or ionizing radiation exposure. The Board is cognizant that lay evidence may be sufficient to establish a nexus in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Board finds, however, the lay opinions are lacking in specifics and are therefore accorded less probative value than the well-supported VA medical opinion described above. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board also notes that the appellant has not alleged, and the record does not suggest, that the Veteran experienced continuing lung symptomatology since service. In fact, the record indicates that the Veteran was diagnosed with lung cancer 40 years later. Therefore, lung cancer was not manifest during service or within one year of separation and is not otherwise attributable to service. Rather, the competent evidence establishes that there was a remote post-service onset. The Board thus finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for lung cancer. Accordingly, the benefit sought on appeal is denied. See 38 C.F.R. 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In summary, although the Veteran had lung cancer during his lifetime, the Board finds that service connection for lung cancer is not warranted on any basis. Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence, so as to afford the appellant the benefit of the doubt on the question of medical etiology. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet.App. 49, 53-56 (1990). The preponderance of the evidence now of record is against the claim for service connection for lung cancer. ORDER Service connection for lung cancer, to include as due to exposure to asbestos and ionizing radiation is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs