Citation Nr: 21031605 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-09 588 DATE: May 24, 2021 ORDER Entitlement to service connection for lung cancer status post left lower lobectomy is granted. REMANDED Entitlement to service connection for prostate cancer is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his lung cancer status post left lower lobectomy is at least as likely as not related to his exposure to lead-based paint and paint thinner while is service. CONCLUSION OF LAW The criteria for service connection for lung cancer status post left lower lobectomy are 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 in the United States Navy from May 1964 to May 1966. The Board remanded these matters in August 2020 for additional development. 1. Entitlement to service connection for lung cancer. The Veteran contends that hs lung cancer is due to claimed exposure to asbestos and/or claimed exposure to lead paint and paint thinner while on active duty. The Board concludes that the Veteran has a current disability that is related to his exposure to lead paint and paint thinner on active duty. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In August 2015 and June 2016 letters, the Veteran asserted that he was exposed to asbestos, paint, and paint thinner while on active duty aboard the USS Donner. The Board notes that the Veteran's service personnel records do verify his being stationed on that vessel from 1964 to 1966. Further, in the August 2020 remand, the Board specifically instructed the examiner to accept as valid the Veteran's statements that he was exposed to asbestos and lead-based paint and paint thinner during service. Further, in October 2020, VA received information regarding the C.E. Thurston & Sons asbestos litigation that notes that "individuals may have been exposed to asbestos while working" on certain ships, to include the USS Donner. Therefore, the Veteran's reports of in-service exposure to asbestos, lead paint, and paint thinner is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). The Veteran was afforded a VA respiratory conditions examination in January 2020. The examiner noted that the Veteran's MOS shows a low probability of exposure to and stated that moderately differentiated squamous cell carcinoma is most often caused by smoking or exposure to second-hand smoke and that there is no evidence on biopsy suggesting that asbestos caused his cancer. The Veteran was afforded a VA respiratory conditions examination in December 2020. A diagnosis of squamous cell carcinoma of the lung status post left lower lobectomy was noted. In a January 2021 clarification, the VA examiner, the examiner stated that "[the] Veteran has a diagnosis of squamous cell lung cancer status post left lower lobectomy [and he] has asserted that he was exposed to asbestos, lead based paint, paint thinner and was a smoker throughout service." The examiner then stated that "[a]ccording to Pub Med occupational exposures in painters to include paint and solvents such as paint thinners are causally associated with the risk of lung cancer." The examiner then opined that the "Veteran's squamous cell lung cancer more likely than not is related to his exposure to lead base paint, paint thinners and smoking while in service." The Board notes that, by law, service connection cannot be granted for disabilities related to the use of tobacco products. 38 U.S.C. § 1103. However, the totality of the competent evidence of record demonstrates that it is reasonable to conclude that the Veteran's lung cancer is multi-factorial in nature. As January 2021 VA clarification opinion states, the Veteran's lung cancer was more likely than not due to his exposure to lead-based paint, paint thinner, and smoking. As such, it appears a fair reading of this opinions to conclude that chemical exposure contributed to, worsened, or possibly hastened the development of the Veteran's lung cancer, beyond smoking taken by itself. Therefore, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lung cancer status post left lower lobectomy is related to his service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lung cancer status post left lower lobectomy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer is remanded. When VA undertakes to provide an examination or opinion, it must ensure that it is adequate. See, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board remanded this matter for a VA examination in August 2020. The Veteran was provided a VA examination in December 2020 and stated that, "[i]n terms of Veteran's condition of prostate cancer according to up to date cigarette smoking may have an effect on both the risk of developing prostate cancer and its prognosis once a diagnosis is established. Therefore, even though the evidence is not strong, it cannot be ruled out." Here, the VA examiner did not discuss whether the Veteran's asserted exposures to asbestos and/or lead paint and paint thinner are possible etiologies for his prostate cancer. Further, the examiner admittedly relied upon a weak, equivocal rationale to provide a negative nexus for prostate cancer. As such, the Board finds the December 2020 VA examination is inadequate and remands for a new examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his prostate cancer. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is prostate cancer at least as likely as not related to service, including exposure to asbestos and/or exposure to lead paint and paint thinner? Provide a rationale to support the opinion. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brian P. Keeley 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.