Citation Nr: 21040980 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-15 177 DATE: July 7, 2021 ORDER Entitlement to service connection for residuals of pneumonia and squamous cell carcinoma of the lungs is denied. FINDING OF FACT The Veteran had squamous cell carcinoma of the lung that was neither incurred in active service nor etiologically related to inservice exposure to asbestos or toxins. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of pneumonia and squamous cell carcinoma of the lungs have not been met. 38 U.S.C. §§ 1101, 1103, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from September 1977 to July 1979 as an air defense radar operator. The Veteran died in June 2012. The Veteran's surviving spouse was substituted for the Veteran in May 2013. 1. Entitlement to service connection for residuals of pneumonia and squamous cell carcinoma of the lungs The appellant contends that the Veteran's squamous cell carcinoma of the lung was incurred in active service to include as due to asbestos or other toxins exposure. After a thorough review of the evidence, the Board finds that entitlement to service connection for squamous cell carcinoma of the lung is not warranted. The Board remanded the claim on appeal for further development in March 2021. The Board finds that there has been substantial compliance with the prior remand directives and that the matter is now properly before the Board. See, Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran's representative submitted a copy of an October 2019 letter to the appellant of their intent to withdraw in representation before the Board. The file does not contain confirmation that the Board approved this withdrawal or that other representation was obtained by the appellant, accordingly this decision is also copied to the representative listed. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence of record shows that the Veteran had been diagnosed with terminal metastatic lung cancer at the time of his death. Therefore, the Veteran meets the first Shedden element of a currently diagnosed condition. As for the second element of injury or disease in service, the Veteran had contended that he was exposed to asbestos or various toxins like fuel during his time in service and such toxins resulted in the development of lung cancer. The service personnel records show that the Veteran served at Fort McClellan, Alabama from September 1977 to February 1978 (basic training); at Fort Bliss, Texas from February 1978 to March 1978 (air defense and infantry training); and at Fort Ord, California from March 1978 to July 1979 (duty as a radar operator). Service medical records show that the Veteran was treated for pneumonia in 1977 and that he reported smoking 1.5 packs of cigarettes daily. The Veteran's entry medical examination in September 1977 had no notations. The Veteran's separation medical examination had no notations, but on the separation medical history in June 1979, the Veteran reported history of asthma, shortness of breath, and hay fever/allergies. The Veteran submitted a National Cancer Institute article regarding asbestos and cancer risk and a U.S. Army April 1993 survey of buildings with asbestos at Fort Ord. Prior to his death, the Veteran submitted a statement that he served at Camp Ford, Texas, which he reported was surrounded by aluminum foundries, chemical plants and other industrial facilities and was exposed to contaminated water and asbestos. The Board observes that Camp Ford was a Civil War era prisoner of war camp and not an active Army base to which the Veteran was assigned. However, Fort McClellan was situated near industrial facilities and (as noted) Fort Ord had buildings with asbestos material. The Veteran was afforded a VA examination in March 2011. The summary in the examination report states that the Veteran was diagnosed with lung cancer in the "A" system in September 2010. The Veteran reported pneumonia in service which the examiner noted was shown in the service medical records in 1977. The Veteran reported that he had recurrent episodes of pneumonia over the years that was treated in private medical facilities. The examiner noted he did not have records to support this contention but that the symptoms prompting treatment in September 2010 that led to the lung cancer diagnosis included pneumonia not responding to treatment. The examiner noted that the Veteran had been smoking from age 18 to the time of his lung cancer diagnosis in 2010. The examiner confirmed a continued diagnosis of lung cancer but opined that the Veteran's diagnosis was not at least as likely as not related to active service because current medical literature does not show that pneumonia is a cause or risk factor for the development of lung cancer. In December 2019, VA obtained an addendum opinion. The examiner opined that, "I believe there is neither peer-reviewed evidence in the medical literature, consensus in the medical community or evidence in this specific case that supports a causal/aggravation relationship between exposure to the MRPA fuel during the storage or refueling of MRPA either by anyone or in anyone's general proximity. This type exposure is not considered a risk factor for lung cancer." In April 2021, VA obtained an addendum medical opinion to include additional discussion of other toxins and asbestos. The examiner noted that the Veteran's pneumonia resolved and was not related to asbestos or chemical exposure. "The cancer is unrelated to viral or bacterial pneumonia. The most likely cause of the veteran's lung cancer is the 30+ pack-year history of smoking. There is no evidence of asbestos-related lung disease on any x-rays. It is highly unlikely that the claimed asbestos exposure is related to the development of squamous cell carcinoma, for which smoking is overwhelmingly the single greatest risk factor. Asbestos has not been linked to squamous cell lung cancer as a cause in the current, widely accepted, peer-reviewed literature, including up-to-date, which is a respected, professional medical resource wherein one can access current professional treatises and literature/studies. No studies linking asbestos as the cause of the veteran's squamous cell lung cancer were identified. The veteran is also claiming nonspecific chemical exposures while in service as to cause. There are no definitive studies linking the types of chemicals one might encounter in military service to the development of squamous cell cancer of the lung. The veteran presented several treatises and articles that did not establish cause and effect and were not to be considered peer-reviewed literature. Therefore, it is less likely than not that the veteran's squamous cell carcinoma is due to service, events in service or exposures in service, including asbestos and the chemicals consistent with the veteran's MOS." The Board acknowledges the Veteran's assertions that his lung cancer was related to his military service, including contentions of exposure to asbestos and various toxins. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of lung cancer, specifically whether related to exposure to asbestos or toxins, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms regarding his lung cancer, any opinion regarding the nature and etiology of his lung cancer requires medical expertise that the Veteran has not demonstrated. See, Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such the Board assigns less probative weight to the Veteran's assertions that his lung cancer is related to his in-service exposure to asbestos, fuels, chemicals, or other toxins and more probative weight to the competent medical opinions provided. The Board also assigns the same analysis to the appellant's claims that that the Veteran's lung cancer was a result of exposure to toxins to include chemicals in drinking water and finds that the appellant is also not competent to provide an opinion on etiology of the Veteran's lung cancer. In reaching this decision the Board acknowledges that the Veteran stated that he smoked while on active duty, as well as the fact that the medical opinions of record link his lung cancer to a history of smoking. Significantly, even if the Veteran did smoke while on active duty, as a matter of law VA cannot grant compensation based on a disease caused by in-service smoking. 38 U.S.C. § 1103. The medical examiners opined that the Veteran's lung cancer was not supported by evidence of causation with exposure to asbestos or other chemicals or toxins and that the Veteran's lung cancer was related to long-term smoking, a primary risk factor. The VA medical opinions have well-reasoned rationales supporting the conclusions; thus, are afforded significant probative value. Nieves-Rodriguez, 22 Vet. App. at 295; see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because the preponderance of the evidence is against a claim for entitlement to service connection for residuals of pneumonia with lung cancer, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the appellant's claim for entitlement to service connection for lung cancer on an accrued basis is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.