Citation Nr: 22018640 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-14 301 DATE: March 30, 2022 ORDER Service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in September 2015. The immediate cause of his death was lung cancer. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The evidence is against a finding that the Veteran's lung cancer was caused by, or were otherwise etiologically related to, his active service. 4. A service-connected disability did not cause or contribute materially or substantially to the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the United States Navy from January 1956 to November 1959. The Veteran died in September 2015 with the immediate cause of death identified as lung cancer. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in November 2016 and a Statement of the Case (SOC) was issued in January 2017. The Veteran perfected an appeal by submitting a timely VA Form 9 in March 2017. The issue was previously before the Board. Most recently in August 2021, the Board remanded the appeal to the RO for additional development. Specifically, the Board directed the RO to obtain VA Form 21-4142 and any outstanding medical treatment records identified by the appellant and to obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's lung cancer. In August 2021, the RO notified the appellant to submit a completed VA Form 21-4142. The appellant submitted medical literature in October 2021 but did not submit a completed VA Form 21-4142. In November 2021, the RO obtained a medical opinion regarding the nature and etiology of the Veteran's lung cancer. Thus, the Board finds that the RO substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. 1. Service connection for cause of death The appellant contends that the Veteran's lung cancer developed as a result of a spontaneous pneumothorax requiring hospitalization during service. In the alternative, the appellant contends that exposure to asbestos during service caused the Veteran's lung cancer. The Veteran's service treatment records show that the Veteran received treatment in November 1958 in an overseas hospital for spontaneous pneumothorax during service. Upon return to his ship in January 1959, a repeat X-ray showed complete resolution with no further evidence of a pneumothorax. In February 1959, notwithstanding the Veteran's c complaint of pain on walking or climbing ladders, there was no evidence of pneumothorax in the x-ray. A clinician determined that the pain was part of the healing process. The Veteran returned to the United States aboard ship as a passenger, and an October 1959 discharge physical examination report was silent for any residual respiratory abnormalities. VA Medical Center treatment records from May 2001 to March 2005 do not show any complaints of, treatment for, or diagnoses of lung cancer. There are no private medical treatment records associated with the Veteran's file. The Veteran's Certification of Death from October 2015 lists only lung cancer as the cause of death. In her November 2016 NOD, the appellant contended that the Veteran's lung troubles during service "turned out to be cancer." In a March 2017 VA Form 9, the appellant contended that the Veteran's "lung cancer was a secondary condition to spontaneous pneumothorax." The appellant also submitted a statement from the Veteran's doctor who opined that exposure to asbestos and history of spontaneous pneumothorax "contributed to [the] ultimate development of lung cancer." The physician did not provide any explanation or rationale or refer to the service treatment records. In March 2017, the appellant also submitted medical literature that stated that every lung disease "can be complicated by secondary spontaneous pneumothorax" but does not state whether spontaneous pneumothorax could cause lung cancer. In August 2017, the appellant contended that an "online encyclopedia" stated that spontaneous pneumothorax caused metastatic lung malignancy. In January 2019, the Board remanded the appeal to obtain an additional medical opinion. In February 2019, the March 2017 the same private medical practitioner again opined that the Veteran's spontaneous pneumothorax contributed to the development of lung cancer with no rationale or supporting evidence. The private medical practitioner again stated that the Veteran had "metastatic lung cancer" but did not discuss exposure to asbestos in his February 2019 opinion. In March 2019, a VA medical practitioner opined that the Veteran's lung cancer was less likely than not due to, or aggravated by, the Veteran's primary spontaneous pneumothorax incurred during military service. The examiner stated that he reviewed the private medical opinion and the medical literature submitted by the appellant and explained that the medical literature submitted by the appellant did not support her contention that spontaneous pneumothorax caused the Veteran's lung cancer and that absent medical documentation of ongoing recurrences of spontaneous pneumothorax, that it was not a risk factor "known at all to contribute to metastatic lung cancer." In August 2021, the Board directed the RO to ask the appellant to identify any outstanding treatment records. Although the appellant was notified in August 2021 of the decision and asked to provide information so that the RO could obtain private treatment records, the appellant did not respond, although she had submitted private medical opinions from a private practitioner in March 2017 and in February 2019 who stated that the Veteran was his patient. In October 2021, the appellant submitted additional medical literature that stated "nearly every lung disease can be complicated by secondary spontaneous pneumothorax (SSP), although the most commonly associated diseases are ... primary or metastatic lung cancer" and that "the most frequent underlying disorders in [spontaneous pneumothorax] are ... lung cancer." The second study included a table stating that 2 out of 16 Japanese patients with pneumothorax died of lung cancer. The study did not state that lung cancer was caused by spontaneous pneumothorax. The study only addressed how an existing lung disease could be complicated by a pneumothorax, a sequence that is not relevant in this Veteran's case since the pneumothorax occurred decades prior to the onset of lung cancer. In November 2021, a VA examiner opined that the Veteran's lung cancer was not mesothelioma which is the type of lung cancer associated with asbestos exposure and that spontaneous pneumothorax, "even when it occurs many times, does not lead to lung cancer" citing "common medical knowledge of Oncology." Later in the same month, another VA examiner added that chest x-rays during service was normal and that "medical literature notes spontaneous pneumothorax in association with lung cancer is rarely seen" with no evidence of lung cancer during the time of spontaneous pneumothorax. After reviewing the evidence of record, the Board finds that the evidence weighs against finding that the Veteran's lung cancer was caused by service, to include his spontaneous pneumothorax or exposure to asbestos. Although the Veteran served aboard an older ship in the 1950s, his rating was radarman and was not tasked with duties involving the removal or maintenance on components insulated with asbestos. Therefore, the Board finds based on the evidence in the record that he was not expose to friable asbestos fibers. Further, the weight of medical evidence is that the Veteran did not have asbestos related disease (mesothelioma). The appellant did not submit or identify any medical treatment records for the RO to obtain that are pertinent to the claim on appeal. As such, there is no medical treatment records since discharge showing any complications of spontaneous pneumothorax or any other information regarding the Veteran's lung cancer. Thus, the most recent medical evidence of record pertinent to the claim on appeal is the Veteran's normal x-ray from February 1959. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence"). Next, the Board finds that the private medical opinions from March 2017 and February 2019, authored by the same private practitioner, are inadequate as they are conclusory without supporting rationale. The private practitioner also did not indicate whether he reviewed the Veteran's service treatment records, such as the imaging studies that showed the pneumothorax had resolved. The private practitioner, despite having the Veteran as "his patient," also did not cite any treatment records to support his opinion. The Board also notes that the private practitioner attributed the Veteran's lung cancer, at least partially, to exposure to asbestos in March 2017 but not in February 2019 and did not discuss the Veteran's service treatment record, such as the clear x-ray in February 1959. In contrast, the November 2021 VA examiners noted that they reviewed the Veteran's records and explained that the medical literature did not support spontaneous pneumothorax causing lung cancer. The November 2021 VA examiner also explained that asbestos exposure leads to a specific type of lung cancer, mesothelioma, and not metastatic lung cancer that is caused by asbestos exposure. As discussed above, the private practitioner who had the Veteran as his patient stated that the Veteran had metastatic lung cancer and not mesothelioma although he had partially attributed the Veteran's metastatic lung cancer to asbestos exposure in March 2017. In addition, the March 2019 VA examiner explained that the medical literature submitted by the appellant did not support her contentions as the medical literature stated that metastatic lung cancer could be complicated by spontaneous pneumothorax rather than stating that spontaneous pneumothorax caused lung cancer. Thus, the Board finds that the sum of the VA medical opinions is adequate as they are based on the Veteran's medical record and supported by rationale. The Board also observes that the VA medical opinion is not contradicted by the medical literature submitted by the appellant. Moreover, to the extent the appellant asserts that a relationship exists between lung cancer and spontaneous pneumothorax or asbestos exposure, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran's lung cancer is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran's lung cancer have no probative value. Regarding the medical articles submitted by the appellant, the Board finds that they do not address causation and that they are too generic to have any probative value. They address how a pneumothorax would complicate an existing lung disease which was not this Veteran's case. See, e.g., Mattern v. West, 12 Vet. App. 222, 228 (1999) (generic texts, which do not address the facts in this particular case with any degree of medical certainty, do not amount to competent medical evidence). In summary, the Board has carefully considered the evidence of record, and after so doing, concludes that the most probative evidence reflects that the criteria for entitlement to service connection for cause of death have not been met. As the evidence weighs against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 53-56. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.