Citation Nr: 21062847 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-01 466 DATE: October 12, 2021 ORDER Service connection for lung cancer is denied. FINDINGS OF FACT 1. The Veteran had active duty from February to September 1977, with additional service in the National Guard, to include multiple periods of Active Duty for Training (ACDUTRA). 2. The Veteran died in March 2020 at the age of 70. 3. In April 2021, the Regional Office (RO) recognized the appellant, his widow, as an eligible substitute claimant in the appeal. 4. Lung cancer was not shown in service, was not shown to a compensable degree within one year of separation from service, was not shown for many years after service, and was not otherwise causally or etiologically related to service, to include in-service asbestos exposure. CONCLUSION OF LAW Lung cancer was not incurred in service, may not be presumed to have been incurred in service, and was not due to in-service asbestos exposure. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a procedural matter, the Board notes that at the time of his death, the Veteran had pending claims of service connection for depression, anxiety, sleep apnea, and right ear hearing loss, as well as a pending claim for an increased rating for left ear hearing loss. However, in a November 2019 Form 10182, he opted to have the claims adjudicated under the framework established by the Appeals Modernization Act (AMA). As such, the claims will be addressed in a separate decision. Additionally, after the Veteran's death, the appellant filed April 2020 and July 2021 claims of entitlement to Dependency and Indemnity Compensation (DIC), accrued benefits, and a survivor's pension; however, those claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction to decide these issues at this time. Finally, prior to his death, the Veteran and appellant testified at a March 2018 hearing in connection with this appeal before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year of the date of separation from service. See 38 C.F.R. § 3.307. Prior to his death, the Veteran asserted, and the appellant subsequently reinforced, that his lung cancer stemmed from in-service asbestos exposure. Moreover, lung cancer is a chronic disorder under 38 C.F.R. § 3.309(a). Therefore, presumptive service connection on the basis of both asbestos exposure and continuity of symptomatology will be considered. Direct service connection will also be discussed. Turning first to direct service connection, the Veteran was diagnosed with lung cancer at the time of his death. To this end, a September 2019 VA examination diagnosed lung cancer, status-post right lung resection. Accordingly, a then-current disorder was shown at the time of the Veteran's death and the first element of service connection has been met. As to in-service incurrence, in September 2019, the RO notified the Veteran that his service treatment records (STRs) could not be located and were therefore unavailable for review. As such, the Board has a heightened obligation to explain its findings and conclusions, and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The record contains multiple lay statements from the Veteran, as well as March 2018 testimony, indicating that he was exposed to asbestos in service while based out of the Park Slope Armory in Brooklyn, New York. He explained that he trained at the armory and that the building was dusty and ultimately found to contain asbestos. However, neither he nor the appellant indicated that he was diagnosed with lung cancer or had any symptoms of lung cancer while in service. Rather, the Veteran asserted in October 2019 that his symptoms surfaced 8 years after his retirement from Reserve service. Moreover, he reported a 2-month history of a progressive cough in a February 2010 medical treatment note in which a clinician diagnosed squamous cell carcinoma of the right lung. Therefore, the second element of service connection an in-service incurrence has not been met and the medical evidence does not support service connection on a direct basis. As to presumptive service connection, no chronic disease or injury was shown in service. As noted, the record does not reflect in-service complaints of, treatment for, or diagnoses of lung cancer or any symptoms reasonably attributed to lung cancer. Also, significantly, the Veteran acknowledged in October 2019 that lung cancer symptoms did not manifest until 8 years after his ultimate February 2000 retirement from Reserve service and 23 years after his brief period of active duty. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connection for lung cancer based on continuity of symptomatology since service. Specifically, in a February 2010 medical treatment note, the Veteran reported experiencing a progressive cough since December 2009 and was ultimately diagnosed with squamous cell carcinoma of the right upper lobe of his lungs. Even assuming that the Veteran developed symptoms ultimately diagnosed as lung cancer as early as December 2009, this finding was made over 30 years after his separation from active duty. There is no indication that he was diagnosed with lung cancer in the intervening years. As the Veteran was discharged from active duty in 1977 and symptoms of lung cancer were not identified until December 2009, the medical evidence does not demonstrate service connection for the disorder based on a "continuity of symptomatology" basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year of the date of separation from service. As explained above, the Veteran separated from active duty in 1977 and retired from Reserve service in 2000; however, symptoms of lung cancer were not identified until December 2009. As such, presumptive service connection on a "manifest within one year of separation" basis has not been shown. In sum, the medical evidence does not support presumptive service connection for lung cancer based on chronicity or continuity of symptomatology. Turning to in-service asbestos exposure, as explained above the Veteran and appellant submitted multiple lay statements, as well as March 2018 testimony, noting that the Veteran was exposed to asbestos while in service. They described how he was stationed at the Park Slope Armory in Brooklyn and that the building out of which he was based was dusty and found to have asbestos. A review of the Veteran's military personnel records reveal that his in-service military occupational specialty included service as a field wireman and that while serving as a National Guardsman, military occupational specialties included service as a cannon crewmember. The records also confirm that his unit was based out of the Park Slope Armory during periods of National Guard service and periods of ACDUTRA. While it is not shown in the record, for purposes of this decision, the Board will assume, without finding, that the Veteran was exposed to asbestos. In a July 2014 private medical examination, the Veteran informed the clinician that he worked in an armory-type government building for many years for at least two weekends per month and two weeks per year between 1977 and 2002 while serving in the National Guard. He told the clinician that asbestos was present in the walls and possibly in other areas of the building. Veterans are generally competent to describe their service, to include the periods and locations of their service; however, they are not competent to assess whether asbestos was present. The July 2014 clinician opined that the Veteran's pulmonary status, to include lung cancer, was most likely caused by or a result of asbestos exposure. However, the clinician relied on the Veteran's lay assertion that the building at which he was based contained asbestos and did not otherwise provide a rationale for his opinion. Accordingly, the July 2014 private medical opinion is assigned lesser probative value. In subsequent September 2019 and June 2021 VA medical opinions, the examiners found it less likely than not that the Veteran's lung cancer was incurred in or caused by service, to include in-service asbestos exposure. The examiners noted that there were no medical records of diagnosis or treatment for lung cancer during the Veteran's periods of active service. The examiners acknowledged that the Veteran was based out of a dusty building built in 1895 that contained asbestos but noted that he had an extended 20-year history of smoking. The examiners opined that it was more likely that lung cancer was the product of his long history of smoking, explaining that he directly inhaled known carcinogens for 20 years, as opposed to 7 months and 14 days of occupational in-service exposure to asbestos. They additionally noted that smoking remains the leading cause of lung cancer. The examiners further offered that it was less likely than not that lung cancer would develop from asbestos exposure without medical evidence of asbestosis. The examiners found that without such evidence, it was less likely than not that any asbestos exposure would be clinically significant enough to cause lung cancer and reinforced that the Veteran's documented smoking history posed more of a risk of lung cancer than any in-service asbestos exposure he experienced. Read together, the September 2019 and June 2021 VA examinations are adequate because the examiners thoroughly reviewed the claims file and discussed the relevant evidence, to include whether the Veteran experienced in-service asbestos exposure and whether such exposure was significant enough to result in lung cancer. As such, the VA examinations are assigned greater probative value and weigh against the claim. Based on the above, the medical evidence does not support a causal nexus between the Veteran's active service, to include in-service asbestos exposure, and lung cancer. The Board has considered lay statements and testimony offered by the Veteran prior to his death, as well as additional statements from the appellant regarding the etiology of lung cancer. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to offer opinions as to the etiology of lung cancer due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who examined the Veteran prior to his death and by medical records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements and testimony that were submitted. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. Finally, neither the appellant nor the Veteran prior to his death raised any other issues, nor have any other issues been reasonably raised for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.