Citation Nr: 1761190
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 10-47 175 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
1. Entitlement to service connection for adenocarcinoma of the lungs, to include as due to asbestos exposure.
2. Entitlement to service connection for a respiratory disorder other than carcinoma, to include as due to asbestos exposure.
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
Michael J. O’Connor, Associate Counsel
The Veteran served on active duty from November 1978 to November 1982.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky (Agency of Original Jurisdiction (AOJ)).
In August 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record.
This case consists primarily of documents within the Veterans Benefits Management System (VBMS), with some supplemental documentation from the Virtual VA system. Thus, any future consideration of the Veteran’s case should take into account the existence of this electronic record.
FINDINGS OF FACT
1. The preponderance of the competent and probative evidence of record establishes that the Veteran’s adenocarcinoma, which first manifested many years after service, is not related to service, to include any in-service exposure to asbestos.
2. The preponderance of the competent and probative evidence of record establishes that chronic obstructive pulmonary disease (COPD) first manifested many years after service and is not shown to be etiologically related to any injury or event in service, including asbestos exposure.
3. The preponderance of the competent and probative evidence of record establishes that the Veteran’s in-service bilateral pneumonia resolved during service with no residual effects after service.
4. The Veteran’s granulomatous disease clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated by service.
CONCLUSIONS OF LAW
1. The criteria for service connection for adenocarcinoma of the lungs, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
2. The criteria for service connection for a respiratory disorder other than adenocarcinoma, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1131, 1132, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Advise and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) provides VA’s duties to notify and assist a claimant with development of a claim for compensation. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017).
A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran’s contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran’s pleadings a liberal construction).
As it pertains to the duty to assist, VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, service personnel records, and VA treatment records. There are no outstanding requests to obtain any private records for which the Veteran has both identified and authorized VA to obtain on his behalf. As a result of a Board remand directive, the AOJ obtained medical opinion addressing the Veteran’s contentions in light of review of the entire evidentiary record. The examiner opinion, dated December 2016, fully addresses the questions posed by the Board with a very well explained medical rationale for the conclusions reached. The Veteran was also afforded a personal hearing as a result of the Board’s remand. The Board finds substantial compliance with its remand directives as well as VA compliance with its duty to assist the Veteran.
The Board also observes that, following the August 2017 hearing, the record was held open until September 17, 2017, to provide the Veteran and his representative the opportunity to submit certains types of evidence suggested at the hearing. However, no additional evidence was submitted.
The Board finds that all necessary development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993).
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active peacetime service. 38 U.S.C. § 1131. 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).
Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id.
However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. A malignant tumor is deemed a chronic disease under 38 C.F.R. § 3.309(a).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1137 (presumption of sound condition).
In a case where there is no preexisting condition noted upon entry into service and the Veteran is presumed to have entered service in sound condition, the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. 38 U.S.C.A. § 1137; Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234. This statutory provision is referred to as the “presumption of soundness.” Horn, 25 Vet. App. at 234. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second aggravation prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003).
The government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any ‘increase in disability [was] due to the natural progress of the’ preexisting condition.” Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn, 25 Vet. App. at 236-37.
If the government rebuts the presumption of soundness, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness by showing any of the above, the Veteran’s claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096.
Prior to the application of the presumption of soundness, there must be evidence that a disease or injury – that was not noted upon entrance into service – actually manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2013). The presumption of soundness shields the Veteran from a finding that the disease or injury preexisted (and therefore was not incurred in) service by requiring VA to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Id. at 55.
“Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood).
In rendering a decision on 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54.
In this case, the Veteran contends that his variously diagnosed respiratory disorders had their onset in service, or are causally related to treatment for pneumonia in service and/or secondary to asbestos exposure in service. More specifically, the Veteran testified that he worked as a machinist’s mate on two ships while in service. He reported that his job duties included working in the bottom of ships where piping was covered with linings containing asbestos. He reported being treated for pneumonia during service. He also recalled being informed of two abnormal white spots on his lungs when being x-rayed in service. The Veteran has also voiced his belief that the pneumonia in service led him to be more susceptible to subsequent respiratory infections and colds. He has reported recurrent symptoms of coughing since service.
With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part IV.ii.1.3. Thus, VA must analyze the appellant’s claim under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part IV.ii.2.C.2.f. An asbestos-related disease can develop from brief exposure to asbestos. Id.
There is no presumption of exposure to asbestos solely from a particular occupation. Rather, VA has guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment, 13 Vet. App. at 141; Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). Medical nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00.
The applicable section of the VA Manual also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See M-21-1. Part IV.ii.2.C.2
Asbestos fiber masses 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. M21-1, IV.ii.2.C.2.b. Inhalation of asbestos fibers can produce
* fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis
* pleural effusions and fibrosis
* pleural plaques (scars of the lining that surrounds the lungs)
* mesotheliomas of pleura and peritoneum, and
* cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate.
Service personnel records indicate that the Veteran served aboard the U.S.S. Conyngham and the U.S.S. Edward McDonnell. The occupation of machinist’s mate is one that is normally associated with probable asbestos exposure. M21-1, Part IV.ii.1.I.3.d
Service treatment records show treatment on several occasions for sinusitis, upper respiratory infection (URI), viral syndrome and rhinitis. In July 1981, the Veteran received treatment for bilateral lower lobe pneumonia, which resolved after hospitalization and treatment with antibiotics. His chest x-ray (CXR) was also noted to show calcified nodes near the right 5th interspace and left lateral area interpreted as showing possible histoplasmosis. In August 1981, the Veteran was instructed to follow up in one year with CXR for granulomatous disease. There is also a notation that the Veteran had been screened in the asbestos medical surveillance program. On his medical report of history dated September 1982, the Veteran denied shortness of breath, chronic cough, and pain or shortness of breath. A chronic respiratory disorder was not found.
In January 1985, the Veteran was evaluated by VA due to a low grade fever with yellow sputum. He described a history of pneumonia in 1981 which resolved, and he generally denied any long-term problems. An x-ray examination was interpreted as showing calcified granuloma in the right upper lobe with calcified right peritracheal nodes, a bleb in the right apex, and some prominence of the mediastinal margin at the region of the aortopulmonary window. The assessments included pharyngitis rule out (r/o) strep, acute bronchitis and mediastinal nodes with peripheral calcified granulomas r/o old TB, fungal, sarcoid, and cancer. A pathological specimen of sputum was negative. Testing was negative for tuberculosis or Trichophyton. A pulmonary function test (PFT) was performed. The VA facility obtained the Veteran’s military x-rays which noted that the current CXR changes were present in 1981. The examiner offered an assessment of probably old granulomatous disease questionably (?) related to asbestos exposure. There were no acute pulmonary problems. The Veteran was advised to follow-up with his private physician.
A July 1985 statement from the Veteran’s private physician indicated that the Veteran had not been treated for any form of pulmonary disease.
On VA examination in January 1986, the Veteran described symptoms of transient chest pain, coughing and taking colds easily since having pneumonia in service. A PFT revealed normal spirometry unchanged from January 1985. A chest x-ray showed a healed primary complex on the left, but no active disease.
In pertinent part, VA clinic records reflect that a PFT in 1999 was interpreted as showing no airways obstruction or restriction with normal diffusing capacity (DLCO). Based on x-ray examination, the Veteran was diagnosed with COPD in 2001. In February 2010, the Veteran was diagnosed with adenocarcinoma of the lung. He underwent surgery to remove the cancerous growth.
In a June 2010 VA examination, the Veteran described a history of frequent bouts of bronchitis following service. A PFT was interpreted as showing moderate COPD with no restriction and decreased diffusion. A computed tomography (CT) scan showed moderate to severe bullous emphysema of the upper lobes as well as evidence of old granulomatous disease. The examiner diagnosed adenocarcinoma of the right upper lung, COPD, resolved granulomatous disease and resolved bilateral pneumonia. The examiner, after carefully and accurately reviewing the service treatment records, provided opinion that the Veteran’s current respiratory issues were less likely as not caused by or the result of in-service treatment for pneumonia in service or his highly probable asbestos exposure with the following rationale:
The veteran was treated in service for bilateral pneumonia and appeared to recover without sequelae. There was no evidence in C-file as to what etiological agent was responsible for the veteran’s pneumonia. It appears mycobacteria (tuberculosis, fungi, viruses and bacteria were all considered in the diagnosis. There was no mention in the service medical records of asbestos as an etiology, but this is otherwise unlikely. Asbestos exposure is not in general associated with acute pneumonias.
The veteran’s current pulmonary diagnoses include COPD; adenocarcinoma right lung, status post surgery; bilateral pneumonia resolved; and granulomatous disease, resolved.
The veteran was not diagnosed with COPD in service, nor is it likely that a resolved pneumonia would lead to COPD. The anatomic areas which appear most disturbed with reference to his COPD are the upper lobes, which are anatomically distant from the site of his disease in service.
There is no record during service of carcinoma of the lung, or disease which might lead to carcinoma of the lung. The veteran’s current carcinoma was removed from the right upper lobe, which is anatomically distant from the site of pneumonia in service, which was in the lower lobes. The type of carcinoma, adenocarcinoma, is not the form which is typically related to asbestos exposure (mesothelioma).
The pneumonia is not a currently active diagnosis.
The veteran’s granulomatous disease, while still present on imaging studies, likely predated his time in service. The veteran’s service medical records indicate a diagnosis of “old granulomas,” suggesting that the onset substantially pre-dated his in-service pneumonia.
In summary, the veteran’s current respiratory issues, lung surgery, spots on lungs, carcinoma in lungs, pneumonia associated with asbestos exposure ARE LESS LIKELY AS NOT (LESS THAN 50/50 PROBABILITY) CAUSED BY OR A RESULT OF in-service treatment of pneumonia lower left lobe, bilateral lower lobe pneumonia while serving aboard a naval ship as a fireman (highly probable for asbestos exposure).
In April 2013, the Veteran was offered a settlement agreement with the Johns Manville Company. The basis for this claim and settlement is not shown.
In December 2016, a VA examiner provided an addendum opinion addressing all respiratory disorders. The examiner discussed the Veteran’s granulomas detected on x-ray as follows:
NATURE/SEVERITY/ETIOLOGY OF GRANULOMAS:
NATURE: A granuloma is a small area of inflammation in lungs. Granulomas are most often the result of an infection and most frequently occur in the lungs, but can occur in other parts of the body as well. Granulomas are often found incidentally on a chest X-ray done for some other reason. Once a granuloma forms in a lung, it will not “go away” or resolve, thus they become characterized as “chronic.” This veteran’s “chronic granulomas” will never go away just as a skin blemish due to aging never goes away. However, just as a skin blemish requires no treatment and is a sign of aging, so is this veteran’s granulomas.
ETIOLOGY: The most common cause of lung granulomas in the United States is past histoplasmosis, a fungal infection that primarily affects the lungs. People who acquire pulmonary histoplasmosis that results in a lung granuloma have almost always spent some time in the Ohio River Valley [as most in Kentucky have granulomas on chest x-ray] or the upper Midwest. Most people with pulmonary histoplasmosis recover on their own and never suspect they have the disease because signs and symptoms are rare.
SEVERITY: Granulomas are noncancerous (benign), however they may resemble cancer on an X-ray, especially if they haven’t calcified. Granulomas in patients without symptoms almost never require treatment or even follow-up chest X-rays. They have almost no effect on lung function and thus are not “severe” or even treated.
MILITARY RELATIONSHIP/ASBESTOS CONTENTION: This examiner concurs with previous examiner that CXR in STR’s dated 2 July 1981 show a calcified granuloma in right upper lung of 2cm x 1 cm when veteran was 22 years old. Simply put, it takes years for a granuloma to calcify and medically this granuloma was from a childhood illness, pre-existing his military service to be calcified by 1981 when the Veteran was 22 years old. This is why [prior VA examiner] calls this a pre-existing condition. As explained above, it will never “go away” and thus can be considered “chronic” though it has no effect on pulmonary functions. It will always show up on this veteran’s x-rays for the rest of his life. Granulomas are from an infectious process and thus have no proximal or causal relationship to asbestos exposure. According to the National Library of Medicine, asbestos is not an etiology of granulomas.
*Therefore, Veteran’s diagnosis of granulomas, is less likely as not, [less than 50% probability] related to or incurred due to or incurred during military service. [STR’s show prior calcification.]
*Therefore, Veteran’s diagnosis of granulomas, which clearly was a pre-existing condition, is less likely as not, [less than 50% probability] aggravated or made worse, due to or from any conditions during military service. [STR’s show prior calcification.]–It is clear and unmistakable that Veteran’s military service did NOT aggravate his pre-existing pulmonary disorder [granulomas].
*Therefore, Veteran’s diagnosis of granulomas, is less likely as not, [less than 50% probability] aggravated or made worse, due to asbestos exposure. [National Library of Medicine]
As it pertains to pneumonia, the examiner offered the following opinion:
NATURE/SEVERITY/ETIOLOGY OF Bilateral Pneumonia:
NATURE/ETIOLOGY: The etiology of pneumonia varies by geographic region; however, Streptococcus pneumoniae is the most commonly identified bacterial cause of pneumonia worldwide and especially in young healthy military personnel. Viruses are the second most common causes of pneumonia as well. The presence of an infiltrate on plain chest radiograph is considered the gold standard for diagnosing pneumonia when clinical and microbiologic features are supportive. Staph. Pneumoniae – S. pneumoniae has traditionally been the most common cause of pneumonia. In the pre-antibiotic era, S. pneumoniae was responsible for >75 percent of cases of pneumonia. This type of pneumonia is common in lobar lung presentation as in this Veteran’s case and is highly associated with military conditions as well as far greater incidence in cigarette smokers such as this Veteran.
SEVERITY: Symptoms during acute infection [July 1981 for this Veteran] can be quite severe however after recovery, patients, such as this Veteran, generally return to pre-pneumonia status within six months. There is no permanent disability or effect upon PFTs after 6 months from recovering from acute bilateral pneumonia. Thus, several decades after acute bilateral pneumonia would have “no effect or severity” on current pulmonary function as is the case for this Veteran.
MILITARY RELATIONSHIP/ ASBESTOS CONTENTION: The Veteran chest x-ray and STRs are fully consistent with a Staph Pneumoniae of the right lower lobe in 2 July 1981 when he was in military. Veteran did indeed have this acute episode of pneumonia in military, it was treated with penicillin VK however he was having severe symptoms such as shaking chill and fever. Veteran was admitted for his pneumonia which had spread to bilateral lower lobes. Veteran was continued on antibiotics and started a slow recovery and by 4 August 1981, STR’s show he has resolved his bilateral pneumonia. Veteran is noted to be a smoker at this time. Thus, Veteran’s bilateral pneumonia, acute episode, resolved without residuals, did indeed occur during a period of active duty [greater than 50% probability] however would have no residuals or permanent pulmonary disability. Infectious bilateral pneumonias have no proximal or causal relationship to asbestos.
PRE-EXISTING STATEMENT: It is clear from the STRs as well as the natural course of Veteran’s episode of bilateral pneumonia that it did not pre-exist military service and instead had onset as well as complete resolution, without permanent residuals during service.
*Therefore, Veteran’s diagnosis of bilateral pneumonia, acute episode, RESOLVED without residuals, is more likely as not, [more than 50% probability] related to or incurred due to the June 1981 acute episode of infectious pneumonia, RESOLVED without residuals, during military service. [STR’s July -August 1981.]
*Therefore, Veteran’s diagnosis of bilateral pneumonia, acute episode, RESOLVED without residuals, is less likely as not, [less than 50% probability] related to or incurred due to asbestos during military service. [PFTs findings unrelated to pneumonia, no asbestos plaques].
With respect to COPD, the examiner provided the following opinion:
NATURE/SEVERITY/ETIOLOGY OF COPD:
Chronic obstructive pulmonary disease (COPD) is a common respiratory condition characterized by airflow limitation. It affects more than 5 percent of the population and is associated with high morbidity and mortality. It is the third-ranked cause of death in the United States, killing more than 120,000 individuals each year. Smoking and second-hand cigarette smoking is by far the leading cause of COPD.
COPD changes include abnormal and permanent enlargement of the airspaces distal to the terminal bronchioles that is accompanied by destruction of the airspace walls. It is common among patients who have moderate or severe airflow obstruction such as this Veteran on PFTs.
ETIOLOGY: The most important risk factor for chronic obstructive pulmonary disease (COPD) is cigarette smoking. The amount and duration of smoking contribute to disease severity. Thus, a key step in the evaluation of patients with suspected COPD is to ascertain the number of pack years smoked (packs of cigarettes per day multiplied by the number of years), as the majority (about 80 percent) of patients with COPD in the United States have a history of cigarette smoking. A smoking history should include the age of starting and the age of quitting, as patients may underestimate the number of years they smoked. With enough smoking, almost all smokers will develop measurably reduced lung function. While studies have shown an overall “dose-response curve” for smoking and lung function, some individuals develop severe disease with fewer pack years and others have minimal to no symptoms despite many pack years.
The exact threshold for the duration/intensity of cigarette smoking that will result in COPD varies from one individual to another. In the absence of a genetic/environmental/occupational predisposition, smoking less than 10 to 15 pack years of cigarettes is unlikely to result in COPD. On the other hand, the single best variable for predicting which adults will have airflow obstruction on spirometry is a history of more than 40 pack years of smoking (positive likelihood ratio [LR], 12 [95% CI, 2.7-50]). This Veteran has an approximate 70 pack-year smoking history.
Severity of airflow limitation in COPD (based on postbronchodilator FEV1)
In patients with FEV1/FVC <0.7:
GOLD 1 Mild FEV1 =80 percent predicted
GOLD 2 Moderate 50 percent = FEV1 <80 percent predicted
GOLD 3 Severe 30 percent = FEV1 <50 percent predicted
GOLD 4 Very severe FEV1 70 pack-year smoking history]
*Therefore, Veteran’s diagnosis of COPD is less likely as not, [less than 50% probability] related to or incurred due to asbestos during military service. [PFTs:obstructive, not restrictive, no asbestos plaques]
Finally, with respect to adenocarcinoma, the examiner provided the following opinion:
NATURE/SEVERITY/ETIOLOGY OF ADENOCARCINOMA:
NATURE: Adenocarcinoma is the most common type of lung cancer, accounting for approximately one-half of lung cancer cases. Lung cancer is among the most common cancers worldwide. In the United States and other industrialized countries it is the major cause of cancer mortality, primarily because of exposure to cigarette smoke. The majority of data examining the epidemiology of adenocarcinoma lung cancer comes from the developed world, where cigarette smoking is the predominant risk factor. The increased incidence of adenocarcinoma is thought to be due to the introduction of low-tar filter cigarettes in the 1960s. Lung cancer is the leading cause of cancer deaths worldwide in men, and second most common in women. Worldwide, lung cancer occurred in approximately 1.8 million patients in 2012 and caused an estimated 1.6 million deaths. In the United States, lung cancer will occur in about 225,000 patients and cause over 160,000 deaths annually.
SEVERITY: Veteran’s adenocarcinoma is considered a T1a, N0, M0 (Stage Ia) NSCLC [adenocarcinoma] s/p RULobectomy Feb 2010. Now well and back to full function with PFTs as of 12/23/2016 in report.
ETIOLOGY: Smoking tobacco products (primarily cigarettes) is the most important risk factor for the development of lung cancer. Secondhand smoke is also a significant cause of lung cancer.
Cigarettes – Cigarette smoking has been firmly established as the most important cause of lung cancer in industrialized North America and Europe. .Since then, a large volume of epidemiologic evidence has confirmed the relationship between smoking and lung cancer and led to efforts to decrease smoking in the population. The cumulative lung cancer risk among heavy smokers may be as high as 30 percent, compared with a lifetime risk of lung cancer of 1 percent or less in never-smokers.
The risk of lung cancer increases with both the number of cigarettes smoked per day as well as the lifetime duration of smoking. Other factors that may influence the likelihood of developing lung cancer in smokers include the age at onset of smoking, the degree of inhalation, the tar and nicotine content of the cigarettes, and the use of unfiltered cigarettes. This Veteran is noted to have significant smoking history of approximately 70 pack-years.
ASBESTOS: The lung cancer associated with asbestos is mesothelioma. Thus, a diagnosis of this type of lung cancer is almost invariably due to asbestos. However, in this Veteran, adenocarcinoma is the type of lung cancer and it is not causally or proximally associated with asbestos. It is instead shown to have a causal relationship to cigarette smoking. This Veteran also has a greater than 70 pack-year smoking history and that would be consistent as well as no pleural plaques, no restrictive lung PFT values or other indicators of asbestos-related lung disease.
PRE-EXISTING STATEMENT: It is clear from the STRs as well as the natural course of adenocarcinoma occurred several decades after military service and did not pre-exist military service.
*Therefore, Veteran’s diagnosis of adenocarcinoma is less likely as not, [less than 50% probability] related to or incurred due to asbestos during military service. [PFTs:obstructive, not restrictive, no asbestos plaques, adenocarcinoma/smoking history]
At the outset, the Board notes that there is no dispute that the Veteran was exposed to asbestos during service, that he was treated for bilateral pneumonia in service, or that granulomas were detected by x-ray during service. The Veteran has not disputed his smoking history.
The Veteran believes that his lung cancer results from asbestos exposure in service. In general terms, VA recognizes that asbestos exposure may result in certain forms of cancer. M21-1, IV.ii.2.C.2.b. However, the December 2016 VA examiner has determined that this particular Veteran’s type of lung cancer – T1a, N0, M0 (Stage Ia) NSCLC (adenocarcinoma) – is not associated with asbestos exposure. This determination is based on the Veteran’s clinic findings (the absence of pleural plaques and restrictive lung PFT values indicative of asbestos-related disease), the type of lung cancer (adenocarcinoma which is the most common form of lung cancer and not mesothelioma which is the type associated with asbestos exposure) and the Veteran’s history of a 70 pack-year smoking history (which is an important risk factor for developing adenocarcinoma). The Board attaches high probative value to this determination. See Prejean v. West, 13 Vet. App. 444, 448-9(2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The June 2010 VA examiner provided a similar opinion.
Similarly, the Veteran believes that his COPD results from asbestos exposure and/or as chronic disease associated with bilateral pneumonia in service. The December 2016 VA examiner has determined that the Veteran’s bilateral pneumonia in service resolved without residuals, and that the Veteran’s COPD was unrelated to service including asbestos exposure. This determination is based on the Veteran’s service treatment records (findings consistent with Staph Pneumoniae which fully resolved), medical principles (infectious bilateral pneumonias would have no expected chronic residuals), clinic findings (PFT shows obstructive, not restrictive, breathing which is not a feature of asbestos-related disease with no pleural plaques or honeycombing on chest x-ray) and medical principles (the Veteran’s 70 pack year of cigarette smoking in relation to the “dose-response curve” for developing COPD later in life). This opinion is also consistent with the results from the VA examination in 1985 showing no acute pulmonary problems, VA examination in 1986 showing no active disease, and the July 1985 private physician statement indicating that the Veteran had not been treated for any form of pulmonary disease. Furthermore, the June 2010 examiner explained that the pneumonia involving the lower lobes was no anatomically distant from the COPD involving the upper lobes.
Additionally, the December 2016 VA examiner opinion establishes that the granulomatous disease found on x-ray examination in service clearly and unmistakably existed prior to service, and clearly and unmistakable was not aggravated during service. This determination is based on the Veteran’s service treatment records (CXR interpreted as showing calcified nodes) and medical principles (medically the granuloma was from a childhood illness as it takes years for calcification, granulomas result from an infectious etiology and not asbestos exposure, and granulomas will never go away but also have almost no effect on lung function).
Notably, the examiner appeared to intermix the legal standards for as likely as not and clear and unmistakable evidence in the examination report. The Board has quoted the opinion in full which, in the Board’s opinion, reflects that the clear import of the examiner’s opinion is that the Veteran’s granulomas found on x-ray in service could only have been contracted many years prior to service, and that the disease process cannot have been aggravated in service as it involved a permanent x-ray abnormality which will remained unchanged and asymptomatic for the remainder of the Veteran’s life.
On the other hand, the Board finds no persuasive, competent evidence which places the record into at least equipoise for any of the four disease processes. The Veteran has described recurrent symptoms of coughing, chest pain and increased frequency of colds since his service discharge. However, as a lay person without the appropriate medical training and expertise, he is not competent to attribute these symptoms to a chronic current disability incurred in service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). His description of recurrent symptoms, alone, is also an insufficient basis to establish service connection for any disease not deemed “chronic” under 38 C.F.R. § 3.309(a). Walker, 708 F. 3d at 1337. While adenocarcinoma is deemed a “chronic” disease under 38 C.F.R. § 3.309(a) (malignant tumor), the Veteran is not competent to attribute his symptoms and “white spots” found on chest x-ray in service as the manifestation of carcinoma in service. Rather, the December 2016 VA examiner (as well as other examiner opinions of record) has attributed the x-ray abnormalities demonstrated in service as granulomas (a benign tumor).
The Board acknowledges a January 1985 VA assessment that the Veteran probably manifested granulomatous disease questionably related to asbestos exposure. This statement, in and of itself, reflects a diagnostic possibility considered but not reached. This assessment of possibility has very little probative value, and is greatly outweighed by the December 2016 VA examiner opinion that medical literature from the National Library of Medicine showed that asbestos is not an etiology of granulomas. The 1985 VA evaluation also considered cancer as a diagnostic possibility, but eventually offered a probable diagnosis of old granulomatous disease after testing was concluded.
The Board has also considered the fact that the Veteran received some type of settlement payment with the Johns Manville Settlement Trust Fund. The record does not contain the legal terms and standards, or the medical basis, for this settlement. The probative value of this evidence is greatly outweighed by the December 2016 VA examiner opinion which reflects a well-reasoned rationale for why the Veteran’s particular form of lung cancer is not attributable to asbestos exposure, and why he does not otherwise manifest asbestos-related lung disease.
Finally, the Board has considered the representative’s recollection of reading medical literature that adenocarcinoma is the most common form of lung cancer for non-smokers which could be related to tissue scarring and caused by inhaling carcinogens such as asbestos. This evidence has some probative value but such value is limited as this medical treatise literature does not speak to the specific facts of this case, and the exact reasoning and rationale is unknown as the treatise material was not submitted as suggested. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but, “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street with the claimant having an obligation to provide information within their possession). Overall, the probative value of the reported treatise contents is greatly outweighed by the December 2016 VA examiner opinion which applied medical principles on the specific facts of this case – notably the absence of pleural plaques or honeycombing on x-ray as a factor in his opinion.
In sum, the Board finds that the preponderance of the competent and probative evidence of record establishes that the Veteran’s adenocarcinoma, which first manifested many years after service, is not related to service, to include any in-service exposure to asbestos. The preponderance of the evidence further establishes that the Veteran’s COPD first manifested many years after service and is not shown to be etiologically related to any injury or event in service, including asbestos exposure. The preponderance of the competent and probative evidence of record also establishes that the Veteran’s in-service pneumonia resolved during service with no residual effects after service. Finally, the Board finds that the Veteran’s granulomatous disease clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated by service. The Board finds no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54.
Entitlement to service connection for adenocarcinoma of the lungs, to include as due to asbestos exposure, is denied.
Entitlement to service connection for a respiratory disorder other than adenocarcinoma, to include as due to asbestos exposure, is denied.
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs