Citation Nr: 21022805 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-49 439 DATE: April 19, 2021 ORDER Service connection for lung cancer is denied. FINDING OF FACT The record is devoid of any competent evidence establishing the claimed disability. CONCLUSION OF LAW The criteria for service connection for lung cancer have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from May 1970 to December 1971, to include service in the Republic of Vietnam. In an October 2015 rating decision, the Regional Office (RO) denied his claim for service connection for lung cancer. The Veteran appealed. In December 2018, the Board denied the claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans’ Claims (Court). In August 2019, the Court granted a joint motion for partial remand (JMPR), vacating and remanding the portion of the December 2018 Board’s decision denying service connection for lung cancer. Per JMPR, the parties agreed that the Veteran should be afforded a VA examination (by an oncologist, if possible) to determine whether he has lung cancer and be assisted with obtaining his potentially outstanding medical treatment records, to include the annual CT lung scan reports. In accordance with the Court’s remand instructions, the Board issued a December 2019 remand order for further development. Upon substantially complying with the Board’s remand instructions, to include providing a medical examination and associating any outstanding VA treatment records with the Veteran’s claims file, the RO issued a series of supplemental statements of the case and returned the appeal to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). As reflected in his February 2016 Notice of Disagreement, the Veteran states that VA should have provided a medical examination as to the nature and etiology of his lung nodules (initially identified on an August 2015 imaging study as several tiny sub-centimeter pulmonary nodules), which he asserted might be malignant lung cancer. As further reflected in his substantive appeal (VA Form 9 received in October 2016), the Veteran states that VA has duty to offer an appropriate oncology examination to determine the nature and etiology of the suspicious lung nodule. The Veteran explains that he has been diagnosed with bladder cancer and thus cancer clearly is in his body, which in his opinion raised the likelihood that his lung nodule was malignant. A January 2021 Appellate Brief reflects the contention that the VA examination afforded in November 2020 was inadequate and thus VA has not satisfied its duty to assist the Veteran in developing his claim, to include providing a medical examination that is adequate. The attorney explains that VA must offer an examination for lung cancer by an oncologist because the medical opinion that was offered in November 2020 does not tell whether any lung nodule is malignant or explain why testing for lung cancer would not be productive. In a separate January 2021 correspondence, the attorney questions the qualifications of the examiner who is a nurse practitioner because, in the attorney’s opinion, a competent oncologist would surely have cited to pathology results that either confirm or rule out malignancy in the lung tissues, or, if no pathology results are available, the oncologist would have ordered such a pathology study. With that, the attorney requests the Chairman of the Board to exercise a discretion in remanding the claim for a medical opinion by an oncologist. Upon reviewing the Veteran’s contentions viewed in light of all evidence of record and all pertinent laws, the Board has found that service connection for lung cancer is not warranted. In sum, the VA duty to assist veterans in developing their claims, to include providing a medical examination, is not limitless. Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010). The Board has considered whether such a duty has been satisfied in this case and ultimately has found that any further assistance, to include a re-examination, is highly unlikely to substantiate the claim. It is the Veteran who ultimately bears a general evidentiary burden of presenting and supporting his claim by showing that he meets all legal requirements for the sought benefits. See 38 C.F.R. § 5107(a); see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In every case, establishing an entitlement to service connection, among the fundamental legal criteria, requires the competent evidence of record to show the existence of the claimed disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent a proof of the claimed disability, there is no valid claim for service connection. Id. In this case, the record is devoid of any evidence establishing the requisite existence of the claimed lung cancer. At the outset, the Board notes that in compensation claims cases, like this, medical examinations are required when, inter alia, the record contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability. 38 U.S.C. § 5103A(d)(2)(A). In pertinent subpart, the regulations state that VA will provide a medical examination if VA determines it is necessary but insufficient to decide the claim, provided the record contains competent lay or medical evidence of a current diagnosed disability or its persistent or recurrent symptoms. 38 C.F.R. § 3.159(c)(4)(i)(A). Competent medical evidence means the evidence provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions; statements conveying sound medical principles found in medical treatises; and statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience, but has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran is not shown to have specialized knowledge, training, or experience in such fields as medicine, epidemiology, or pathophysiology. As such, he lacks the competency to diagnose medical disabilities, although he may competently report the symptoms he experiences and a diagnosis rendered by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Such lay reports may warrant further development but on their own are insufficient to establish the basis for service connection and must be corroborated by competent medical evidence. Of particular note, however, the Veteran himself has not reported any symptoms that may be associated with lung cancer and has not even alleged that he has now or ever has been diagnosed with lung cancer. Additionally, hundreds of pages of VA treatment records fail to show any diagnosis of lung cancer. Rather, he asserts that his lung nodules are possibly malignant because he is in a high-risk zone for developing lung cancer, to include such factors as his presumptive exposure to herbicide agents during his service and his now service-connected bladder cancer. With that, he believes that VA should determine whether his lung nodules are malignant. Essentially, the Veteran is asking the Board to order diagnostic testing to either confirm or rule out an alleged malignant nature of his lung nodules, which is not a proper forum for such a request. Here, the Board observes that the Veteran has had lung nodules since 2015, while having an unrestricted access to the VA medical care. As such, the Veteran has been in the best position to request a referral for oncology or pulmonology consultation from his primary care provider at some point during that period, but he has not. Even more significantly, the Veteran’s VA medical treatment records are devoid of a single concern expressed by any medical provider that the Veteran’s lung nodules may be malignant. During the past five years, not a single medical profession has found that any work up, to include any oncology or pulmonology consultation, was necessary beyond an annual imaging screening of the lungs. Rather, the Veteran’s VA treatment records reflect a May 2013 note that the reported chest x-ray done in April 2013 revealed no acute pulmonary process and specifically no lung disease. A July 2015 imaging study report revealed several tiny sub-centimeter pulmonary nodules. An August 2015 addendum note reflects the recommendations, as follows. The findings described above include a newly detected solid pulmonary nodule of less than 4 mm average diameter. Guidelines from the Fleischner Society for the follow-up and management of newly detected indeterminate pulmonary nodules depend on nodule size (average of length and width) and underlying risk factors (including smoking and other risk factors). For 4 mm nodules: no follow-up is needed in low-risk patients; in high-risk patients, a follow-up CT scan at 12 months is recommended and, if unchanged, no further follow-up is necessary. Fortunately, the Veteran’s most recent VA treatment records through March 2021 continue to show no negative developments to that end. Aligned with the evidence discussed above is a November 2020 VA examination report reflecting a medical opinion that it is less likely as not that the Veteran ever has had lung cancer. According to the Veteran’s record review, the examiner notes that the Veteran was diagnosed with bladder cancer in 2015 and underwent surgical removal of cancer in October 2015. According to PCP at VA he was also noted to have lung nodules for which he is being followed by INL with yearly CT. There are insufficient records mentioned in e-file regarding a specific diagnosis of lung cancer and/or if lung nodules are cancerous or non-cancerous. The examination report includes a spirometry interpreted by an MD and a chest x-rays interpreted by an MD, which were ordered and reviewed by the VA examiner. The spirometry report notes that the Veteran had been a cigarette smoker for 10 years but his pulmonary function was within normal limits. His chest x-ray reveals no acute cardiopulmonary, no lung consolidation, effusion, or pneumothorax, no evidence of acute cardiopulmonary abnormality or significant change from prior imaging (CT dated 12/12/2019). Upon review of these reports, the examiner notes that the Veteran’s pulmonary nodules are of unknown etiology and unequivocally states that the Veteran does not have a benign or malignant neoplasm related to his pulmonary nodules. For the Veteran’s claimed lung cancer, there is no diagnosis because ultimately there are no findings, signs and/or symptoms to support such a claim. The examiner specifically observes that the November 2020 chest x-ray report is without acute changes or new findings as compared to an October 2019 chest x-ray showing minor blunting costophrenic sulci otherwise unremarkable, to include no pulmonary thromboembolus; diffuse mild bilateral interstitial prominence and small pleural effusions, nonspecific findings but may be associated with CHF (congestive heart failure). Given no evidence of lung cancer in the Veteran’s file and pulmonary nodules without acute changes or new findings for 5 years, the examiner opines that it is less likely as not that the Veteran had lung cancer at any time since September 2015 (when he filed his claim for service connection). This leaves the Board with only the Veteran’s contention that his lung nodules possibly are malignant. However, the Board has no authority to find a diagnosis of the claimed disability based on the fact that the Veteran is at high risk for developing lung cancer, which is not in dispute here. In addition to the Veteran’s presumptive exposure to herbicide agents and his bladder cancer, among the high-risk factors remarked in the record is his history of cigarette smoking and family history of cancer. However, being at high risk for developing a disease is not the same as having developed the disease. The law in point is unequivocal that the claimed disability must be shown to actually exist at some point, be it upon filing a claim or during its pendency. See McClain v. Nicholson, 21 Vet. App. 319 (2007). On point, the VA examiner unequivocally opines that it is less likely as not that the Veteran has had lung cancer at any point since September 2015, when he filed his claim. Of note, in forming this opinion, the VA examiner has ordered and reviewed the blood lab panel, spirometry, chest x-rays, as well as reviewed and discussed the results of CT scans in the Veteran’s VA treatment records. The Board finds no deficiencies in the November 2020 examination report, to include its accuracy or soundness of the opinion expressed therein, which is wholly consistent with the evidence of record viewed as a whole. Any general conclusory statements, such as simply questioning the examiner’s qualifications, are insufficient to warrant a re-examination. Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010). The Veteran’s representative argues that the examination should have been provided by an oncologist, and indeed the JMR indicated that an oncologist should be used, if possible. As such there was not a Court mandate that an oncologist be used, only that a competent medical professional be used who had the expertise/training to answer the Board’s question. The Board finds the contentions that the claim must be remanded for examination by an oncologist and as to what an oncologist would have done differently are unsubstantiated by any medical authority and unsupported by any legal authority. In weighing these largely speculative beliefs against the medical evidence of record persuasively showing that not a single medical professional of record has expressed any concern for lung nodules malignancies for over five years, the Board finds that any further assistance, to include a re-examination, is highly unlikely to substantiate the Veteran’s claim, which is the threshold for further assistance. On the merits of the claim, the Board also must reject any speculative assertions, that is, claims that are unsubstantiated by any medical authority and unsupported by any legal authority. The record is ultimately devoid of any evidence showing the actual existence of the claimed lung cancer. A mere possibility that the Veteran may have lung cancer does not satisfy this fundamental legal requirement, whereas “may” is not the legal standard. The Veteran has been found to lack competency in rendering medical diagnosis. The lone competent medical opinion of record states unequivocally that it is less likely than not that the Veteran has had lung cancer at any time since filing his claim. Accordingly, absent a persuasive proof of the claimed disability at some point, service connection for lung cancer is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.