Citation Nr: A19001545 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190130-6188 DATE: September 26, 2019 ORDER Entitlement to service connection for lung cancer of the left lung is denied. FINDING OF FACT The Veteran’s lung cancer is less likely than not due to or aggravated by his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for lung cancer have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to June 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of December 2018 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Before discussing the merits of the Veteran’s claim, the Board finds it necessary to briefly discuss its procedural history so as to clarify the applicable law on appeal. The Veteran originally filed his claim in July 2017. The RO first denied his claim in a rating decision of March 2018. Contemporaneously with his June 2018 notice of disagreement (NOD), the Veteran sought higher-level review in the Rapid Appeals Modernization Program (RAMP), which allowed him to have his appeal considered under the Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA). In effect, the Veteran’s appeal under the legacy regulations was canceled and a new appeal under the VAIMA was substituted in its place. The RO again denied the Veteran’s claim under the VAIMA in the rating decision on appeal. The Veteran subsequently filed his appeal to the Board in January 2019. Because the Veteran opted for the evidence submission option under the RAMP, no hearing before the Board was scheduled. The Board notes that the 90-day window for the submission of additional evidence, dated from January 30, 2019, has expired. No additional evidence was submitted during that time. The Board will therefore adjudicate the Veteran’s claim on the merits. 1. Entitlement to service connection for lung cancer of the left lung. Service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). 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). Certain conditions may be presumptively service-connected on the basis of exposure to contaminants in the water supply at Camp Lejeune, North Carolina, even in the absence of a direct nexus. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). In the rating decision on appeal, the RO conceded that the Veteran’s active duty service included qualifying exposure at Camp Lejeune. Under the VAIMA, the Board is bound by the RO’s findings where they are favorable to the Veteran and where they are not rebutted by clear and convincing evidence. See 38 U.S.C. § 5104A. The Board has confirmed that the Veteran’s military service records reflect training at Camp Lejeune from February to May 1972. The Board has therefore not found clear and convincing evidence to the contrary in this case and is bound by the RO’s determination on this issue. However, lung cancer is not among the conditions listed for presumptive service connection. See 38 C.F.R. § 3.309(f) (providing that “the following diseases shall be service-connected” and specifically listing eight conditions). The assignment of service connection on a presumptive basis is therefore not warranted. Private and VA treatment records both reflect that the Veteran was diagnosed with lung cancer in August 2014. The Board therefore finds that the first Shedden factor is satisfied. Because the Veteran was exposed to contaminants in the water supply at Camp Lejeune, the second Shedden factor is likewise satisfied. The Board must therefore consider whether the total evidence of record supports the conclusion that it is at least as likely as not that the Veteran’s lung cancer is due to or aggravated by his qualifying exposure at Camp Lejeune. The Board concludes that it does not. The Veteran underwent a VA examination on this issue in January 2018. The VA examiner opined that the Veteran’s lung cancer was less likely than not the result of his active duty service. The VA examiner opined that the Veteran’s qualifying exposure at Camp Lejeune was one of several relevant factors, including alcohol use, age, and gender, but ultimately concluded that while “[a] number of factors are involved in the development of lung cancer… cigarette smoking is the most important. Approximately 90% of all lung cancers are related to cigarette smoking… [the Veteran] had been a smoker of one pack of cigarettes a day for over 40 years.” Because the VA examiner thoroughly reviewed relevant medical literature and explained its application to the specific risk factors of the Veteran’s medical history, the Board assigns his conclusion significant probative weight. In his January 2019 appeal to the Board, the Veteran argues that the VA examiner’s conclusion is incorrect because “I never even smoked until after my military service.” This argument does not logically support the Veteran’s claim: he also did not develop lung cancer until well after his military service. As part of his appeal to the Board, the Veteran also submitted a previous Board decision from March 2015 in which an unrelated veteran’s claim for prostate cancer was found to be at least as likely as not due to exposure to contaminants at Camp Lejeune. Board decisions are binding only with respect to the instant matter decided – that is, to that specific veteran’s case. See 38 U.S.C. § 7104(c); see also 38 C.F.R. § 20.1303 (providing that the Board may consider prior decisions “to the extent that they reasonably relate to the case” before it, but that “each case… will be decided on the basis of the individual facts… in light of applicable procedure and substantive law”) (emphasis added). The Board notes that in the March 2015 decision, the VA examiner did not specifically link the alternative risk factors for prostate cancer to the facts of that veteran’s case to support an alternative etiology, as the January 2018 VA examiner did here. The Veteran also submitted a September 2017 positive medical nexus opinion from his treating physician. The Board notes that “[VA] statutes and regulations do not provide any basis for the ‘treating physician’ rule [providing that the medical opinion of a treating physician is automatically granted additional probative weight].” See White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001). Instead, the Board’s decisions must be based on the total evidence of record. 38 U.S.C. § 7104(a). The September 2017 private physician opined that it is at least as likely as not that the Veteran’s lung cancer is due to his qualifying exposure at Camp Lejeune. The Board finds that this does not place the medical evidence of record in equipoise because the private physician’s opinion is not as well-supported as that of the January 2018 VA examiner. The Board particularly notes that the private physician does not address the Veteran’s forty-year smoking history at all. In support of his conclusion, the private physician cites to “[information] provided,” “paperwork submitted to my office,” and “the report[.]” The Board infers that the private physician is referring to two documents also submitted by the Veteran and which are of record as of February 2018 and January 2019. The former is a VA document of July 2015 titled “Camp Lejeune: Past Water Contamination.” It provides that qualifying veterans may receive free medical care if they possess one of fifteen different conditions, including lung cancer. The Board notes that this list appears inclusive of the eight conditions specified in 38 C.F.R. § 3.309(f). The Board further notes that the VA document specifically provides that a qualifying veteran “[does not] need a service connected disability to be eligible as a Camp Lejeune Veteran for VA health care.” In other words, this VA program is distinct from the issue before the Board, which is whether the Veteran is entitled to service connection for lung cancer. Qualifying for health care under this program is legally distinct from qualifying for service connection under 38 C.F.R. § 3.303(a). At best, the VA document suggests an association between qualifying exposure at Camp Lejeune and the incidence of lung cancer. However, and as will be discussed further below, varying degrees of association are accorded equally varying degrees of probative weight. Moreover, the January 2018 VA examiner did not opine that qualifying exposure was not a relevant factor, but only that it was outweighed as a potential causal explanation by the Veteran’s forty-year history of smoking. The VA document therefore does not logically rebut the January 2018 VA examiner’s conclusion. The latter January 2019 document is an excerpt of “Chapter 4: Other Health Outcomes” from Review of VA Clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation (The National Academies Press 2015) (NAP Review). Of particular relevance is the distinction between varying degrees of association. The Board is not qualified to make its own medical determinations and must rely on independent and qualified medical expertise. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board cannot therefore explain why some cancers have a stronger scientific association with qualifying exposure at Camp Lejeune than others. However, the Board may logically infer that those cancers included in 38 C.F.R. § 3.309(f) were selected on the basis of stronger, rather than weaker, associations. This is supported by the NAP Review, which notes that the evidence supporting a link to lung cancer “was insufficient to allow for specific associations to be made[,]” while finding stronger evidence supporting links to kidney and bladder cancers. See NAP Review at 2-4; cf. 38 C.F.R. § 3.309(f) (including kidney and bladder cancers but omitting lung cancer). As previously discussed, the January 2018 VA examiner’s opinion did not dismiss the Veteran’s qualifying exposure as irrelevant to his lung cancer, but opined that it was outweighed by his forty-year history of smoking. The NAP Review therefore also does not rebut the VA examiner’s conclusion. The total evidence of record, including the Veteran’s treatment records, his lay statements, and his VA and private medical examinations, does not support a conclusion that his lung cancer is at least as likely as not due to or aggravated by his active duty service. The assignment of service connection is therefore not warranted on a direct basis. Shedden, 381 F.3d at 1167. Furthermore, lung cancer does not qualify for presumptive consideration under the applicable regulations. 38 C.F.R. § 3.309(f). The Board has considered the doctrine of reasonable doubt but finds that is not applicable because the preponderance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.