Citation Nr: 21015493 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-08 250 DATE: March 17, 2021 ORDER Service connection for lung cancer, to include as secondary to asbestos exposure is denied. Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s lung cancer is secondary to asbestos exposure, and/or that it is otherwise related to his active service. 2. The Veteran died in November 2015 and the immediate cause of death, as certified, was metastatic lung cancer, with lung cancer as the underlying cause. 3. At the time of the Veteran’s death, he was service-connected for osteoarthritis of the cervical spine and for lower back degenerative joint disease with herniated nucleus pulposus, but not for lung cancer. 4. There is no probative evidence showing that the immediate and/or underlying cause of the Veteran’s death is causally related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer, to include as secondary to asbestos exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to January 1968. He died in November 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at the St. Paul Pension Management Center, St. Paul, Minnesota. In May 2017, the appellant and a witness, S.M., testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In February 2019, the Board remanded the claims for the RO to obtain a medical opinion to address the etiology of the Veteran’s metastatic lung cancer. Accordingly, the RO obtained new medical opinions, and the case has been returned to the Board. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish 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). 1. Lung Cancer The Veteran asserted that he was exposed to asbestos, which resulted in stage 4, lung cancer. He explained that his exposure to asbestos likely began in the barracks where he was stationed at Treasure Island, San Francisco, and continued when he served on the USS Mountrail. See August 2015 Correspondence. At a May 2017 videoconference hearing, a witness, S.M., testified that the Veteran was diagnosed with lung cancer in 2013. By asserting that the Veteran’s lung cancer was due to asbestos exposure, the appellant further asserted, in pertinent part, that research shows that lung cancer is not a disease that shows up after infection; it takes years for the exposure to asbestos to develop into lung cancer, and “even longer to the point where medical examination can detect the disease.” In support of this claim, and consistent with her lay statements from the videoconference hearing, the appellant submitted a series of medical literature, including a medical article from the Agency for Toxic Substances and Disease Registry’s September 2001, entitled “Asbestos.” In pertinent part, this article indicates that it “is known that breathing asbestos can increase the risk of cancer in people” and that lung cancer is one of two types of cancer caused by exposure to asbestos. At the same time, however, this article also indicates that cigarette smoke and asbestos together significantly increase the chances of getting lung cancer. The appellant also submitted another medical article from the website, drugs.com, which also provides, in pertinent part, that the risk of all types of lung cancer, including squamous cell carcinoma, increases if one smokes, and also if one is exposed to asbestos. See May 2017 Correspondences Submitted by the Appellant. Military personnel records confirm that the Veteran served on board the U.S.S. Mountrail, APA-213, as well as Naval Station Treasure Island, San Francisco, California. Further, military personnel records confirm that the Veteran’s military occupational specialty (MOS) was electronics technician. The Board notes that the presence of asbestos-containing materials (ACM) at Treasure Island is well documented by the Treasure Island Development Authority in San Francisco, California, and a February 2011 asbestos reevaluation report, “Final 2009 Asbestos Reevaluation Report for Treasure Island and Yerba Buena Island” noted that Treasure Island was an active Naval facility during World War II, until September 30, 1997, and it confirmed that asbestos-containing materials were found in some residential units at Treasure Island. Thus, in this regard, the Veteran’s exposure to asbestos is conceded. Despite medical evidence of lung cancer in treatment records, however, the medical evidence does not show any evidence of asbestosis. Nonetheless, the RO obtained a VA opinion on the etiology of the Veteran’s lung cancer. In this May 2020 VA opinion, a VA examiner opined that the Veteran’s metastatic lung cancer was less likely than not (less than 50 percent probability) incurred in, or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner reasoned, in pertinent part, that his asbestos exposure was less likely than not due to his active service, but rather, from exposure working in the construction industry, prior to service and post service; and that his occupation was also in the construction industry as a safety inspector until 2014. The VA examiner further noted that the Veteran smoked 1 – 5 packs of cigarettes per day, for 40 years, and continued to do so until 2014, after his diagnosis of lung cancer. Citing to medical literature from Harvard Public Health, which the appellant also submitted as evidence, the VA examiner further reasoned that this publication reports that smoking is 13 times a higher risk for cancer than non-smokers and asbestosis exposure (from construction industry and shipyard worker, miners, or auto mechanics; and that according to current medical literature, smoking is the greatest risk factor for developing squamous cell lung cancer, given the Veteran’s extensive 40 year smoking history. Thus, the VA examiner concluded that the Veteran’s squamous cell lung cancer is more likely due to his smoking history. In response to the findings and determinations from the May 2020 VA opinion, the appellant asserted that the VA examiner provided inaccurate information in his opinion. She clarified that the Veteran started smoking in the Navy, he quit smoking in 2001, and that he did not start again until after his diagnosis of progressive squamous cell lung cancer. She further clarified that the Veteran did not smoke 1 – 5 packs for 40 years, and that over the years, there were many times the Veteran tried to quit, to the extent that he smoked very little for several weeks and was on a patch. She also clarified that the Veteran worked on farms in Kansas, and that between the period after his high school graduation and his enlistment into service, he worked on farms, doing some construction, weather permitting, with exposure to asbestos being minimal, if any. She also asserted that it is unlikely that the Veteran’s work as a safety manager exposed him to asbestos, post-service, because he worked mainly from his home office, his responsibilities included developing and writing safety policy and procedures manuals and guidelines for construction workers, ordering safety equipment for workers conducting safety training and occasionally conducting on-site safety inspection of workers, with these on-site safety inspections averaging once a week. She explained that during these on-site inspections, the Veteran modeled safety procedures for the workers by wearing safety equipment, including helmet and masks, and that it is hard to see how there would have been asbestos inhalation as a safety manager. See June 2020 correspondence. In support of this claim, the appellant submitted additional medical literature, which are similar to the above-mentioned medical articles that the appellant submitted in May 2017. Summarily, they reiterate that the combined effects of smoking and asbestos lead to lung cancer. In pertinent part, and while citing these sources, the appellant asserted that due “to the complex multiplicative synergy of [smoking and asbestos exposure], it is impossible to distinguish which is more likely than not to be the etiology of any given individual lung cancer case.” Further, the appellant asserted that thus, “it cannot be said, that [the Veteran’s] smoking is more likely than his exposure to asbestos to be the nexus of his lung cancer. Just as it cannot be said[ ] that his asbestos exposure is more likely than smoking to have been the cause of metastatic lung cancer and death.” Taking all of the appellant’s assertions from this June 2020 correspondence into account, the Board finds that while the appellant is permitted to testify about symptoms and manifestations that are capable of lay observation, she does not have the requisite qualification to render an opinion on the etiology of the Veteran’s lung cancer because such an opinion requires specialized knowledge and/or medical expertise. Specifically, the question of causation of the Veteran’s lung cancer involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, as it requires knowledge of pulmonology and/or oncology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (finding that although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the appellant’s opinion on the relationship between the Veteran’s exposure to asbestos and his diagnosis of lung cancer has no probative value. Nonetheless, in light of the asserted discrepancies with the May 2020 opinion, as identified by the appellant, the RO obtained another VA opinion on the etiology of the Veteran’s lung cancer. In this July 2020 VA opinion, another VA examiner opined that it is less likely than not the Veteran’s lung cancer was incurred in or caused by asbestos exposure during his active service. In providing a rationale for this opinion, the VA examiner provided a detailed clarification of the Veteran’s information that the appellant alleged was inaccurate. Specifically, for example, the VA examiner stated that there was some confusion as to how much smoking the Veteran had done in the past, as well as some confusion about the amount of spasticity the Veteran was exposed to in the past. He clarified that the Veteran was seen in February 2014, and a report stated that the Veteran had bypass surgery on his heart in 2001; he had a 40-year history of smoking; the report stated that he quit in 2001, but this was inconsistent with other medical treatment records. He explained that the Veteran was seen a week later, in February 2014, and that the report stated that the Veteran quit smoking cigarettes since he was diagnosed with lung cancer. He further noted that a March 2014 discharge summary report also indicated that the Veteran had a 40-pack year smoking history, and referenced additional treatment records, including and not limited to a March 2014 clinical note which indicated that the Veteran reported smoking 1 pack per day for 40 years. Further, the VA examiner cited to additional numerous medical treatment notes, which also provided pertinent information about the Veteran’s work history with construction companies. Also, in rendering a rationale for this opinion, the VA examiner cited to the publication the appellant submitted, the May 2017 Harvard Health Report. The VA examiner noted that this publication “reports squamous cell carcinoma of lung: risk factors including smoking (13 times more at risk than nonsmokers), [and] . . . asbestosis ([for individuals] who work in areas of miners, construction workers, shipyard workers, and some auto mechanics).” After the VA examiner provided a thorough comprehensive account of all the medical treatment records, the prior VA examination, and medical literature he reviewed, in establishing this opinion, the VA examiner explained, in pertinent part, that the record, including the Veteran’s lay statements, suggest that the Veteran had the potential for a significant exposure to asbestos while on board the U.S.S. Mountrail. He then reiterated that there has been some discussion about the Veteran’s smoking history; the record suggests that the Veteran either had a 40 or 50 pack-year smoking history; he believes that the consensus of the records would suggest that he had a history of heavy smoking; and that the record indicates that he was smoking up until the time he was diagnosed with lung cancer. The VA examiner further clarified that there has been no radiographic evidence, such as pleural plaques, peribronchial fibrosis, intralobular linear opacities, parenchymal bands, or honeycomb fibrosis. He further explained that there were no biopsies indicating histology supporting asbestosis, to include pathology at the time of his right upper lobectomy. Further the VA examiner stated that to the contrary, imaging has suggested emphysema consistent with a long history of smoking. On these bases, he concluded that it is at least as likely as not, the Veteran’s squamous cell lung cancer was proximately due to his smoking, and not asbestos exposure. After a review of all probative evidence, the Board finds that this is the most probative medical evidence of record addressing the relationship between lung cancer and the Veteran’s military service. The VA examiner provided a thorough, comprehensive explanation to support this this opinion. Specifically, the VA examiner provided a comprehensive detailed account of all pertinent medical evidence, accounted for the appellant’s lay statements and assertions, and provided a clear explanation, based on findings from the Veteran’s medical history, as to why the Veteran’s lung cancer is more likely attributable to heavy smoking, and not asbestos exposure. Pertinently, the VA examiner cited to numerous medical treatment records to clarify and dispel the appellant’s assertions that pertinent information about the Veteran’s smoking history, work history, and/or degree of asbestos exposure were inaccurate. To the extent that the appellant alleges that the Veteran’s smoking history began in service, it is important to acknowledge, that statute and regulation prohibits service connection for a condition that is attributable to a veteran's use of tobacco during service. See 38 U.S.C. § 1103, 38 C.F.R. § 3.300 In sum the Board finds that a lung cancer disability or symptoms thereof were not manifested in service or within the first post-service year. The Board further finds that the weight of the evidence is against a finding of an etiological relationship between any asbestos exposure in service and the subsequent development of lung cancer. Moreover, the evidence reveals that lung cancer was not found until many years following the Veteran’s discharge from service. Finally, the evidence does not show an etiological relationship between his then-current lung cancer residuals and his active military service. In this regard, the Board finds that the preponderance of the evidence is against this claim, and the benefit-of-the-doubt rule, which the Board has considered, is not applicable. Therefore, the service connection claim for lung cancer, to include as secondary to in-service asbestos exposure, must be denied. Cause of the Veteran’s Death The appellant asserts that due to the Veteran’s exposure to asbestos, he died of lung cancer, which began as pleural disease, obstructive pneumonitis, and squamous cell. See e.g. December 2016 Statement in Support of Claim. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute as a principal cause of death from a service-connected disability, it must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To constitute as a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the Veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had a material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995); 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that a service-connected disability casually shared in producing death, rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). The Certificate of Death establishes that the immediate cause of the Veteran’s death was metastatic lung cancer, with lung cancer as the underlying cause. However, as noted above, the probative evidence does not show that the Veteran’s diagnosis of lung cancer was related to his active military service. Nonetheless, the appellant has cited to various Board decisions, in which the Board determined that combined smoking and asbestos exposure were determined to be the cause of a Veteran’s death. See June 2020 Correspondence. However, the Board notes that although prior decisions in other appeals may be considered in a case, to the extent that they reasonably relate to the case, prior Board decisions are not precedential or binding. See 38 C.F.R. § 20.1303. Therefore, the Board finds that the prior Board decisions the appellant has cited have no probative weight in this current appeal, as they were based on different evidentiary records. Although the Board is grateful for the Veteran’s Honorable service, there is no basis for granting this claim, as the evidence does not show that the Veteran’s immediate cause of death, metastatic lung cancer, or underlying cause of death, lung cancer, was etiologically related to his active miliary service. Therefore, service connection for cause of the Veteran’s death must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.