Citation Nr: 1749092	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO. 13-28 621A	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


Entitlement to service connection for lung cancer, claimed as due to asbestos exposure. 


Veteran represented by:	Stephen H. Cristal, Esq.


The Veteran


E. Duthely, Associate Counsel


The Veteran served on active duty from February 1975 to August 1976. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In February 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. During the hearing, the undersigned engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).


The Veteran's lung cancer is not etiologically related to his active service, to include any asbestos exposure in service. 


The criteria to establish  service connection for lung cancer, claimed as due to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).


Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). 

VA's duty to notify was satisfied by an October 2010 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded an in-person examination in January 2013 and a VA examiner provided an addendum opinion in January 2017. The VA examiners provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examination and medical opinions are adequate to decide the Veteran's claim.

The claim was remanded in April 2015 in order to clarify whether the Veteran's military occupational specialty (MOS) exposed him to asbestos, as well as for an addendum VA opinion on the nature and etiology of the Veteran's lung cancer. The RO requested an opinion from the U.S. Navy concerning the Veteran's potential asbestos exposure which was received in August 2016, and the VA examiner issued an addendum opinion in January 2017. Therefore, there is substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Service Connection for Lung Cancer

The Veteran contends his lung cancer is a result of asbestos exposure in service. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any 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) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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).

VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See VBA's Adjudication Procedure Manual, M21-1, Part IV, subpart ii, Chapter 1, Section I.3.a-f; see also VAOPGCPREC 04-2000 (Apr. 13, 2000). When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. See M21-1, Part IV.ii.2.C.2.a-i.

Asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See id. The manual notes that lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi.

It should be noted that the pertinent guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); see also VAOPGCPREC 04-2000.

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. 

The Veteran was diagnosed with non-small cell lung cancer in January 2010. 

The Board acknowledges the Veteran's exposure to asbestos in service. However, the preponderance of the evidence is against a finding that the Veteran's lung cancer is etiologically related to his active service. 

Upon VA examination in January 2013, the VA examiner opined that the Veteran's lung cancer was not etiologically related to his active service. The examiner noted the Veteran's MOS as a radio operator had a minimal probability of asbestos exposure. The examiner also noted the Veteran's 35-year history of smoking. 

In a January 2017 addendum opinion, a separate VA examiner reviewed the file and opined that the Veteran's lung cancer was not etiologically related to his active service. The VA examiner noted that the Veteran's experience as "seaman's apprentice," "cook," and "radio operator" are all listed as having minimal risk of exposure to asbestos. The examiner acknowledged Dr. Newman's opinion that the May 2013 x-ray showed "evidence of bilateral asbestos induced pleural disease" but noted that chest x-ray is the least accurate way of determining the presence of pleural disease. The examiner further noted that subsequent CT scans in January 2014, February 2014, August 2014, and October 2015 make no mention of pleural plaques typical of asbestos. 

The January 2013 and January 2017 VA examiners provided opinions that preponderate against the Veteran's claim. The opinions provided by the VA examiners are considered competent and probative evidence. The VA examiners reviewed the claims file and provided medical opinions supported by adequate rationale.

The Veteran contends that he was exposed to high amounts of asbestos while serving in the aviation fuels department. However, according to the Veteran's DD Form 214, his MOS was a radio operator. There is no objective evidence that the Veteran served in the aviation fuels department at any point in his service. 

In October 2011, Catherine L. Kuntz, M.D., opined that the Veteran's lung cancer "could certainly be related to significant asbestos exposure if it is felt that he has indeed had such an exposure." However, she also stated that it was "[her] understanding from what [the Veteran] tells me that he had a significant asbestos exposure while working on pipelines during his time in the military."

In a November 2011 letter, Zonera A. Ali stated that the Veteran was "exposed to asbestos" while on active duty and that "asbestos is one of the known carinogen(sic) for lung cancer which could have contributed to his developing lung cancer." In an August 2012 note, Dr. Ali noted that "if [the Veteran] was exposed to asbestos when in the service, it is more likely than not that it is the contributing factor to his present lung cancer." This is not speculative

In a December 2011 letter, Thomas Harder, M.D., reported that he was treating the Veteran for rhematoid arthritis. He stated that the stated that was "exposed to asbestos while serving in the Navy, and it is known that this exposure could have increased his risk of developing lung cancer."

However, these physicians' statements are provided in speculative terms and are, therefore, not persuasive. See Bloom v. West, 12 Vet. App. 185, 187 (1999).

In November 2011, Dr. Ali opined that "while in the armed services, [the Veteran] was exposed to asbestos" and concluded "asbestos is one of the known carcinogen for lung cancer, which could have contributed to his developing lung cancer." However, Dr. Ali does not discuss the rationale underlying his assumption that the Veteran was exposed to asbestos in service, nor does he discuss the Veteran's level of exposure. Therefore, the Board finds that Dr. Ali's opinion is not as probative as those of the VA examiners. 

Absent competent, credible, and probative evidence of a nexus between the Veteran's lung cancer and his active service, the Board finds that his lung cancer is not etiologically related to service. See 38 U.S.C.A. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA...the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). 

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56.


Service connection for lung cancer is denied.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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