Citation Nr: 21003538 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-10 129 DATE: January 21, 2021 ORDER Entitlement to service connection for lung cancer is denied. Entitlement to service connection for brain cancer is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s lung cancer manifested during or was caused by his military service. 2. The preponderance of the evidence is against a finding that the Veteran’s brain cancer manifested during or was caused by his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). 2. The criteria for service connection for brain cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1956 to August 1958. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter to the Agency of Original Jurisdiction (AOJ) in August 2015 with instructions to obtain additional opinions on the etiology of the Veteran’s lung and brain cancers. The Veteran died in December 2015, and VA found his surviving spouse to be a substitute party for the purpose of continuing the Veteran’s appeal. See October 2020 letter from VA to the appellant. The appellant has not raised any issues with the duty to notify or duty to assist in regard to the claims on appeal. 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 duty to assist argument). Service connection is granted on a direct basis when there is 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. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). While the Board finds the first two Shedden elements are met in this case, the Board finds the preponderance of the evidence is against a finding that the third Shedden element is met regarding both claims. The Veteran’s death certificate shows that the Veteran suffered from lung and brain cancer (a meningioma), which caused his death. As noted in the Board’s prior remand order, the Veteran’s service records show that he served at Camp Lejeune during a period for which VA will presume he was exposed to environmental contaminants, and the Veteran reported a history of smoking including during his military service. While many diseases including several cancers are presumed to be service connected in the case of soldiers exposed to the Camp Lejeune contaminants under 38 C.F.R. § 3.309(f), the presumption does not apply to lung cancer or brain cancer. Additionally, 38 C.F.R. § 3.300(a) provides that for claims received by VA after June 9, 1998 (as in the case of the appellant), a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran’s use of tobacco products during service. Therefore, the Board must consider the extent to which the competent and credible evidence of record establishes a nexus between the Veteran’s military service and his lung and brain cancer in the context of his history of smoking and other applicable risk factors. VA obtained an opinion on the etiology of the Veteran’s cancers from a VA examiner in November 2014. The VA examiner noted that the epidemiology of lung cancer has been intensively investigated since the mid-1900s. The examiner noted that established environmental risk factors for lung cancer include smoking cigarettes and other tobacco products and exposure to secondhand tobacco smoke, occupational lung carcinogens, radiation, and indoor and outdoor air pollution. The examiner noted that cigarette smoking is the predominant cause of lung cancer and the leading worldwide cause of cancer death. The examiner noted that a positive family history and acquired lung disease are also host factors that are clinically useful risk indicators for lung cancer. The examiner noted that almost all lung cancer deaths are caused by cigarette smoking. The examiner noted that the medical records in the Veteran’s file show that the Veteran’s past medical history was remarkable for a 60 pack-year history of smoking cigarettes, and the examiner noted that the Veteran had undergone radiation treatment for recurrent meningioma. In addition, the examiner noted that the Veteran had a strong family history of lung cancer in his sister. By contrast, the examiner noted there is only limited/suggestive evidence of association of lung cancer with the solvents found in the drinking water at Camp Lejeune. Considering the risk factors in the context of the totality of the evidence, the examiner indicated that it is less likely as not that the Veteran’s lung cancer was caused by events during his military service other than the cigarette smoking. In regard to the meningioma, the November 2014 VA examiner noted that is not among the tumors which have been linked to the drinking water at Camp Lejeune. The examiner noted that meningioma has been linked to ionizing radiation (usually post treatment for childhood cancers), as well as to neurofibromatosis and familial meningioma, both of which are genetic disorders. The examiner noted that there was no family history is in the claims file. The examiner found that a number of lines of evidence suggest that hormonal factors have a role in the development of meningioma. The examiner noted there is also some association between obesity - thought to be related to hormonal changes - and the development of meningioma, as well as between meningioma and increasing age, seizure disorder, and head trauma. The examiner noted that the Veteran was past 70 when he was diagnosed with meningioma and had a history of severe head trauma in 1984 with subsequent development of partial complex seizures. Considering the risk factors in the context of the totality of the evidence, the examiner indicated that it is less likely as not that the Veteran’s meningioma was caused by events during his military service. After reviewing the opinion of the VA examiner, the Board determined the AOJ should obtain an addendum opinion in order to address some inconsistencies in the record regarding the Veteran’s service record, his family history of cancer, and his smoking history. The AOJ obtained an addendum opinion from the examiner in July 2020. After reviewing additional evidence in the claims file and pertinent medical literature, the examiner noted epidemiology of lung cancer has been intensively investigated since the mid-1900s. The examiner noted that established environmental risk factors for lung cancer include smoking cigarettes and other tobacco products and exposure to second-hand tobacco smoke, occupational lung carcinogens, radiation, and indoor and outdoor air pollution. The examiner noted cigarette smoking is the predominant cause of lung cancer and the leading worldwide cause of cancer death. The examiner noted that a positive family history and acquired lung disease are also host factors that are clinically useful risk indicators for lung cancer. The examiner noted that almost all lung cancer deaths are caused by cigarette smoking. The examiner noted that the Veteran’s medical records show that the Veteran’s past medical history was remarkable for 60 pack-year history of smoking cigarettes. The examiner considered that the Veteran has said that he stopped smoking at age 34, (e.g. in 1972 rather at age 41, and in 1979). However, the examiner indicated that even accepting the Veteran’s statements, the Veteran had a 60 pack-year history of smoking. In addition, the examiner noted the Veteran had undergone radiation treatment for recurrent meningioma and that the medical records show the Veteran had a strong family history of lung cancer in his sister. The examiner considered that the Veteran has said that this was an error and that he did not have a family history of lung cancer. However, the examiner maintained that there is only limited/suggestive evidence of association of lung cancer with the solvents found in the drinking water at Camp Lejeune. Considering the risk factors in the context of the totality of the evidence, the examiner indicated that it is less likely as not that the Veteran’s lung cancer was caused by events during his military service other than the cigarette smoking. Regarding the meningioma, the examiner noted that is not among the tumors which have been linked to the drinking water at Camp Lejeune. The examiner noted that meningioma has been linked to ionizing radiation (usually post treatment for childhood cancers), as well as to neurofibromatosis and familial meningioma, both of which are genetic disorders. The examiner found no family history in the claims file. In addition, the examiner found that a number of lines of evidence suggest that hormonal factors have a role in the development of meningioma. The examiner noted there is also some association between obesity - thought to be related to hormonal changes - and the development of meningioma, as well as between meningioma and increasing age, seizure disorder, and head trauma. The examiner noted that the veteran was past 70 when he was diagnosed with meningioma and had a history of severe head trauma in 1984 with subsequent development of partial complex seizures. Considering the risk factors in the context of the totality of the evidence, the examiner indicated that it is less likely as not that the Veteran’s meningioma was caused by events during his military service. The Board affords great probative value to the VA examiner’s opinions as the examiner carefully considered the Veteran’s lay statements about his risk factors including his family history and his history of risk factors for cancer including smoking. The Board finds the opinion adequately demonstrates by reference to the Veteran’s medical history, service records, and medical literature that the Veteran’s cancers were less likely as not caused by his exposure to Camp Lejeune contaminants. The Board finds that the examiner also provided adequate rationale explaining that even accepting the Veteran’s correction about his family history and smoking history as fact, the history of smoking and advanced age were prominent risk factors in his case for the development of his cancers in the context of the totality of the evidence. As noted above, service connection for cancer caused by smoking tobacco products is not available in this case. In the absence of compelling evidence that the Veteran experienced additional in-service exposures that are at least as likely as not the cause of his cancers, the Board finds that the preponderance of the evidence is against the appellant’s claims. As noted in the Board’s prior remand order, the January 2015 opinion from the Veteran’s pulmonary physician, M.J., is speculative and only indicates it is a “possibility” that the environmental contaminants at Camp Lejeune contributed to the cancers. The Board affords the opinion little probative value and affords more value to the VA examiner’s opinions as they considered the totality of the evidence in the context of the Veteran’s medical history, service records, objective imaging, lay statements, and pertinent medical literature. The record lacks competent and credible evidence indicating the Veteran’s cancers were at least as likely as not related to his military service aside from his history of smoking. Moreover, the appellant has not indicated that any outstanding evidence or additional development is likely to provide VA with such evidence. As the preponderance of the evidence of record is against the appellant’s claims, entitlement to service connection for lung and brain cancers is denied. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.