Citation Nr: 21015665 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-11 988 DATE: March 18, 2021 ORDER Service connection for lung cancer related to exposure to carcinogens in service and inflammation from COPD is granted, subject to the laws and regulations governing the award of monetary benefits. As of November 16, 2020, a 100 percent disability rating for chronic obstructive pulmonary disease (COPD) with obstructive sleep apnea is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Entitlement to a rating greater than 60 percent for COPD, now rated together with obstructive sleep apnea, for the time period prior to November 16, 2020 is remanded. FINDINGS OF FACT 1. The Veteran’s exposure to carcinogenic paint and chemicals during nearly twenty years of service contributed to the subsequent development of lung cancer, as did his service-connected COPD and his multi-year smoking history. 2. Beginning on November 16, 2020, the Veteran has required outpatient oxygen therapy daily and nightly. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer related to exposure to carcinogens in service and inflammation from COPD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for a 100 percent disability rating for COPD with obstructive sleep apnea have been met as of November 16, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Codes 6604 and 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to June 1976, and from September 1977 to July 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from Agency of Original Jurisdiction (AOJ) decisions of July 2012, which denied a disability rating in excess of 60 percent for COPD; and June 2015, which denied service connection for lung cancer. The Veteran presented sworn testimony in support of his appeals during a May 2018 hearing before the undersigned Veterans Law Judge. In July 2018, the Board obtained an informed medical opinion from a VA physician who is an expert in occupational and environmental medicine. The opinion addresses complex medical questions regarding the Veteran’s chemical exposures during service. The Veteran and his attorney were provided with a copy of the medical opinion in October 2018. In April 2019 the Board remanded these matters along with the question of entitlement to service connection for obstructive sleep apnea, for further evidentiary development. Following such development, in a December 2020 decision, the AOJ granted service connection for obstructive sleep apnea, and rated the apnea together with the Veteran’s COPD, at 60 percent disabling. The Board notes that the record reflects that the Veteran has entered hospice care. The Board grants a motion to advance the case on the docket at this time. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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 evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lung cancer The Veteran’s non-small cell adenocarcinoma in the right upper lobe was initially manifested in 2011, and pathologically diagnosed in 2014 following an endobronchial biopsy. The cancer was deemed to have been non-resectable, so he subsequently underwent chemotherapy and radiation treatment. His medical treatment reports reflect a history of heavy smoking from a young age. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. The Internal Revenue Service Restructuring and Reform Act of 1998 (IRS Reform Act) enacted in July 1998 as Public Law No. 105- 206, in pertinent part, prohibits service connection for death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C. § 1103. Thus, service connection for lung cancer caused by the use of tobacco products during service is prohibited by law. The medical evidence is clear that the Veteran’s smoking history is a primary cause of his lung cancer. The Veteran asserts that his lung cancer is caused, at least in part, by exposure to paints, solvents, and other chemicals during his time in service, when he primarily worked in maintenance. During the May 2018 hearing on appeal, the Veteran testified that he painted aircraft in the Navy, removed corrosion, sandblasted, and also removed corrosion with glass beads. He painted with lacquer, enamel, epoxy, and Imron paint. He used air pressure painting techniques, and did not always have what he considered to be complete protective gear. The Veteran has submitted medical treatise evidence pertaining to an increased incidence of lung cancer in painters. He has also submitted evidence indicating that chronic inflammation associated with COPD likely plays a role in the pathogenesis of lung cancer. Because he has been service-connected for COPD deemed to have been caused by chemical exposures in service since he was discharged from service, he asserts that his lung cancer may be in part due to or aggravated by his service-connected COPD. The VA has already conceded the Veteran’s chemical exposures in the grant of service connection for COPD. However, the Board obtained further medical evidence regarding the Veteran’s particular exposures in the July 2018 Veterans Health Administration opinion. As noted above, a physician with particular expertise in such exposures reviewed the Veteran’s service records, medical records, and performed a review of relevant medical literature. Following a careful review of the Veteran’s service records, the physician summarized the Veteran’s inservice-chemical exposures as follows: Exposures include asbestos, chemicals, hydraulic fluids, solvents, pain, and isocyanates. … Imron paint does contain isocyanates in the form of hexamethylene diisocyanate (HDI) which is associated with occupational asthma and sensitization. This can lead to irreversible obstructive pulmonary disease if exposure continues, even with personal protective equipment. Imron also includes lead chromate which contains hexavalent chromium which is associated with nasal and lung cancer. The physician performed an extensive review of medical literature, which can be summarized as showing that corrosion control and painting exposed servicemen such as the Veteran to occupational hazards. Compounds to which the Veteran was likely exposed during his time working with Navy aircraft included isocyanates, hexavalent chromium, methyl ethyl ketone, HDI, toluene, mixed solvents, zinc chromate primer, methyl chloroform, trichloroethane, aliphatic naphtha, cadmium, and zinc. Several scientific studies were cited showing that painting as an occupation is considered a risk for developing lung cancer, with an increased risk when controlling for smoking. The physician concluded by opining that: It was likely that the appellant was exposed to levels of isocyanates, dust, mixed solvents, and hexavalent chromium at higher than current permissible exposure levels, particularly early in his military service. Even more recent evaluations in the mid to late 1990s indicated higher than acceptable levels of occupational exposures in aircraft corrosion control and painting. The appellant also has a significant heavy smoking history that is in probability a greater risk for development of lung cancer than the occupational exposure alone. It was stated in a medical surveillance exam on 3/04/1982 that he had no evidence of pulmonary disease and was given medical clearance but that he had a combination of toxic work exposure and smoking which increased his risk. I would state that it is more probable that the appellant’s smoking history is [a] primary risk factor for his lung cancer but the additive effect of hexavalent chromium cannot be ruled out. It is very likely that the chemical agents and paints to which the appellant was exposed as an aircraft maintenance technician contained carcinogenic compounds, primarily the hexavalent chromates found in the primers containing lead chromate and barium chromate. Following the Board’s remand, the Veteran underwent an additional clinical examination in January 2020. Following the clinical examination and review of the evidence in the Veteran’s claims file, the examiner rendered the following opinion as to the impact of the Veteran’s COPD upon his lung cancer: Current evidence does indicate that COPD could be an independent risk factor for the development of lung cancer. The risk is generally 1% annually with an overall 2-5-fold risk increase. However, [the Veteran] started smoking very early in his life and for many years, and it is well known that the major risk of lung cancer is smoking. According to Medscope information, smokers had 16-fold elevated lung cancer risk. So even though the COPD could be an independent risk factor for the development of lung cancer, smoking is a much higher independent risk factor. I cannot say that his lung cancer is more than 50% caused by his COPD condition. Reviewing the medical evidence in totality, it is reasonable to conclude that the Veteran’s lung cancer is multi-factorial in nature. As all of the medical opinions indicate, smoking is a significant, and possibly the primary contributor to his development of lung cancer. However, the evidence is also clear that he was exposed to multiple carcinogens during the course of his duties in service, at high levels of exposure. The Veteran’s Health physician pointed particularly to the “additive effect of hexavalent chromium,” on top of the Veteran’s smoking habit as a contributor to his lung cancer. The most recent VA examiner noted that COPD could have contributed to lung cancer, although that examiner also felt that smoking was the biggest contributing factor. It appears a fair reading of these opinions to conclude that chemical exposure and COPD contributed to, worsened, or possibly hastened the development of the Veteran’s lung cancer, beyond smoking taken by itself. The medical treatise information of record supports both of these conclusions generally. In sum, the Board holds that the evidence supports a grant of service connection for that portion of the Veteran’s lung cancer which is related to carcinogen exposure during service and contributed to by chronic inflammation from his service-connected COPD. Where it is not possible to distinguish the effects of a non-service-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. 38 C.F.R. § 3.102; Mittlieder v. West, 11 Vet. App. 181 (1998). The Board resolves reasonable doubt in favor of the Veteran. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) In sum, the evidence supports the Veteran’s claim and the appeal for service connection for non-small cell adenocarcinoma is granted. COPD The Veteran is seeking a higher disability rating for his COPD, which has been rated as 60 percent disabling throughout the appeal period. During the hearing on appeal, he asserted that his pulmonary function test results have worsened during the appeal period, and that he experiences significant shortness of breath, to the point where he needs to sit and rest after walking a distance of twenty feet. Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Historically, mild COPD was initially manifested during service. As noted above, service connection for COPD was granted immediately following the Veteran’s discharge from service as due to chemical exposures during service. A 10 percent disability rating was assigned at that time and remained in effect for many years. The currently assigned 60 percent disability rating was implemented in December 2002. The Veteran filed the claim which eventually led to this appeal in April 2012. At the same time, he also sought service connection for obstructive sleep apnea, as secondary to COPD. COPD is rated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6604. Diagnostic Code 6604 provides that a 60 percent disability rating is warranted when PFTs show FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min. A 100 percent disability rating is warranted when PFTs show FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97 PFT results are generally reported before and after the administration of bronchodilator therapy. VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845. 38 C.F.R. § 4.96(d)(4). When there is a disparity between the results of different PFTs, so that the rating would differ depending on which test result is used, the test result that the examiner states most accurately reflects the Veteran's level of disability will be used. 38 C.F.R. § 4.96(d)(6). Although the Veteran has two distinct lung disabilities, 38 C.F.R. § 4.96 prohibits separate ratings for each disability. As such, “a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.” 38 C.F.R. § 4.96. In this case, COPD is deemed the predominant disability, as application of the law to the facts yields a higher disability rating for COPD. According to the Veteran’s recent VA treatment records, however, the Veteran was prescribed outpatient oxygen therapy on November 16, 2020. He uses the oxygen during the day and in conjunction with his BiPAP machine prescribed for obstructive sleep apnea at night. Effective on November 16, 2020, therefore, he meets the criteria for a 100 percent disability rating for COPD. 38 C.F.R. § 4.97, Diagnostic Code 6604. In light of the award of service connection for lung cancer, the Board defers consideration of the issue of entitlement to a rating in excess of 60 percent for service-connected respiratory disorders for the time period prior to November 16, 2020. REMAND As held above, the Board has awarded service connection for lung cancer. To avoid any potential prejudice to the Veteran, the Board defers consideration of the issue of entitlement to a rating in excess of 60 percent for service-connected respiratory disorders for the time period prior to November 16, 2020 pending AOJ assignment of an effective date of award and initial rating for lung cancer pursuant to Diagnostic Code 6819. See 38 C.F.R. § 4.96. Accordingly, this matter is REMANDED for the following: Adjudicate the issue of entitlement to a rating in excess of 60 percent for service-connected respiratory disorders for the time period prior to November 16, 2020 after assigning an effective date of award and initial rating for lung cancer pursuant to Diagnostic Code 6819. See 38 C.F.R. § 4.96. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.