Citation Nr: 21064545 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-49 594 DATE: October 20, 2021 ORDER Entitlement to service connection for lung cancer is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's lung cancer began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for lung cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to October 1973. He testified before the undersigned in January 2020; a transcript of the hearing is associated with the record. This matter was most recently remanded in February 2020. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his lung cancer is related to service, to include exposure to asbestos while in service. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 or aggravated during service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was diagnosed with lung cancer and treated in 2014. See February 2019 VA Examination. Thus, the remaining question is whether the lung cancer is related to service. He contends that his lung cancer could be due to exposure to asbestos during service or as a result of exposure to herbicides while in Vietnam for a period of three months. A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, there are certain diseases, including lung cancer, that shall be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The Veteran's official personnel records show assignment to Europe from March 1971 to October 1973. His DD 214 shows two years, six months foreign service; listing Germany as country of last overseas service. The Veteran has asserted that he was assigned to Vietnam on temporary additional duty (TAD) while assigned as a member of the 279th signal platoon from August to October 1972. In the February 2020 remand, the Board noted that the Veteran's military personnel records documented overseas assignment in Germany only; however, an April 1972 letter of commendation referenced his performance in exercises conducted in West Germany and Turkey in February and March 1972. Given the reference to possible assignment in Turkey, which was not noted in personnel record, the Board remanded for the AOJ to attempt to verify the Veteran's claim of assignment in Vietnam. In a March 2021 Records Research Response, a professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, reported having completed comprehensive research on the Veteran's claimed exposure; specifically that while assigned to 279TH SIGNAL PLATOON from August 1 to October 31, 1972, he was exposed to herbicides. The researcher requested records from National Archives and Records Administration (NARA), the custodian of Army unit records for 1972. NARA was unable to locate records for the unit and dates the Veteran provided. "In conclusion, no evidence was located to support documentation of the claimed exposure." The Board notes that dental records included in the Veteran's service treatment records detail multiple appointments from July to October 1972, the period during which the Veteran said he was in Vietnam. Those records are stamped "USA DC Sullivan Barracks Mannheim." There is nothing in the dental records that shows the treatment was at a facility other than in Germany. The Board finds that the Veteran's assertions that he was on temporary duty to Vietnam are not supported. Thus, the presumption of herbicide exposure is not warranted and service connection for lung cancer cannot be granted on a presumptive basis. The Board must still consider whether service connection is appropriate on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board concludes that the preponderance of the evidence is against the claim. Service treatment records show no complaints, diagnosis, or treatment related to a lung cancer disability. During the July 1973 separation examination, evaluation of the chest and lungs were normal. An x-ray conducted during the examination found no abnormalities. In a corresponding report of medical history, the Veteran specifically denied having had constant cough, chest pain, or shortness of breath. A diagnosis of lung cancer is not shown by medical evidence until approximately 2014, many years after the Veteran's separation from service. The Veteran presented for a VA examination in February 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner concluded the Veteran's lung cancer was not related to his service, to include exposure to asbestos In the medical history portion of the examination, the examiner noted the Veteran's report that he served as a radio-teletype operator and was stationed in the United States, Germany and Turkey. The Veteran reported being exposed to asbestos as his barracks were constructed of asbestos but he was not involved in activity where asbestos fibers might become airborne (for example, construction, repair or renovating). He also reported exposure to second-hand smoke. Chest x-rays in service were normal. The examiner also noted the Veteran's "long-standing history of tobacco abuse" and treatment for emphysematous chronic obstructive pulmonary disease (COPD). In the rationale for the negative opinion, the examiner noted there was no evidence that the Veteran was exposed to airborne asbestos fibers during service or that his military specialty would have put him in contact with asbestos. Diagnostic imaging does not show that the Veteran suffers from asbestosis. Chest imaging does not show that he developed benign pleural plaques or malignant mesothelioma, other characteristic pleuropulmonary conditions secondary to asbestos fiber inhalation. Rather, imaging shows centrilobular, or proximal acinar, emphysema, which is characteristic of tobacco abuse, and his pulmonary function test (PFT) parameters are indicative of COPD. The examiner further noted that "while asbestos exposure increases the risk of non-small cell lung cancer (NSCLC), for which smoking is the greatest risk factor, with NO clear evidence that the Veteran was ever exposed to airborne asbestos fibers, with NO other evidence of asbestos lung disease, and with NO asbestos bodies or fibers noted by his treating physicians at the time of pathologic diagnosis, it can NOT be said that asbestos played a role in the pathogenesis of the Veteran's bronchogenic malignancy." The Agency of Original Jurisdiction (AOJ) requested an addendum opinion to clarify whether or not there was evidence that the Veteran had been exposed to asbestos in service because the February 2019 examiner concluded he was not, but a separate VA cardiac examination concluded there was exposure. In a June 2019 addendum opinion in connection with a separate claim for a heart disability, a second VA physician concluded that it was less likely than not that the Veteran had asbestosis. "If the [V]eteran was indeed exposed to asbestosis, it did not affect his lungs." The opinion provider noted that based on two chest x rays in 2018, there was no asbestosis found in his lung lungs. The Board finds the February and June 2019 VA opinions highly probative as they are based on an accurate medical history, review of the record, and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). To the extent that tobacco use may be a causative factor in the development of the Veteran's lung cancer, service connection may not be granted because of tobacco use, even if such tobacco use began in service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. For claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110. While the Board does not make a finding here, one way or another, as to what extent the Veteran's smoking served as a causative factor for his current disability, the Board notes that such history when coupled with the probative medical evidence, only weighs further against the Veteran's claim. The Veteran and his representative argue that the benefit of the doubt doctrine is applicable here in connection with the AOJ's finding that there are no records showing that the Veteran served in Vietnam. The representative argues that the benefit of the doubt is applicable "even in the absence of official records." See May 2021 correspondence. The Board finds that the evidence preponderates against concluding that the Veteran had service in Vietnam and the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records were stamped by the U.S Army health clinic in Mannheim, Germany in June 1971 and reviewed in October 1972. At no time does it appear the records were checked out of the Army Health Clinic. During the time period in question, the Veteran reported for multiple dental examinations that were also stamped Mannheim, Germany. The records show two dental appointments in July 1972, four in August, four in September, and three in October. The Veteran's military records indicate his only period of foreign service was April 1971 to October 1973 when he served in Germany. The Board's conclusion is not based solely on the absence of the official records related to any service in Vietnam, but includes consideration of the contemporaneous service treatment records and other official documents. Thus, the evidence on the question of whether the Veteran had service in Vietnam is not so evenly balanced that the benefit of the doubt should be granted in the Veteran's favor. As the preponderance of the evidence is against the claim, service connection for lung cancer is denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.