Citation Nr: 1761162
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 10-04 722 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Entitlement to service connection for lung cancer for purposes of accrued benefits.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. E. Griffith, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1972 to September 1997. He passed away in August 2012. The appellant is his surviving spouse.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran properly perfected his appeal to the Board prior to his death. The appellant filed a claim for survivor benefits in January 2013. The Veteran testified before a decision review officer in December 2008; the appellant testified before the undersigned Veterans Law Judge in an April 2015 hearing. Hearing transcripts were associated with the file and reviewed.

In August 2015, the Board remanded the case for further development regarding whether the Veteran’s chronic obstructive pulmonary disease (COPD) could have aggravated lung cancer beyond the natural progression of the disease. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998).

FINDING OF FACT

The weight of the evidence is against a finding that the Veteran’s lung cancer was incurred in service or otherwise related to service, or has been caused or aggravated by service-connected chronic obstructive pulmonary disease (COPD).

CONCLUSION OF LAW

The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Procedural duties

Neither the appellant, the Veteran, nor the representative have raised any issues with respect to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

As previously noted, the Board remanded this case for further development in August 2015. The Board specifically instructed the RO to consider if the Veteran’s lung cancer was aggravated beyond its natural progression by his service-connected COPD and to readjudicate the claim. Subsequently, an examiner provided an opinion as to aggravation of the Veteran’s lung cancer by the service-connected COPD. Thereafter, the Veteran’s claims were readjudicated in a June 2017 supplemental statement of the case. Thus, there is compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Service connection

Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a Veteran must show “(1) the existence of a present disability; (2) 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-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310 (2017).

The Veteran was, and the appellant is, competent to report symptoms observable by their senses, but not as to the specific etiology of disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b) (2012). 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. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board finds that the criteria for service connection for squamous cell lung cancer have not been met. 38 C.F.R. §§ 3.303, 3.307(a)(7).

The appellant contends that the Veteran’s lung cancer should be service-connected because it was caused by his exposure to environmental hazards, various chemicals, dust, and asbestos during the Gulf War, or, in the alternative, was caused or aggravated by the Veteran’s service-connected COPD.

With respect to the first element of service connection, the treatment records show that the Veteran had squamous cell lung cancer that was first diagnosed in January 2007 and relapsed around December 2011 before the Veteran passed away in August 2012.

According to the Veteran’s service records and appellant’s hearing testimony, the Veteran served in the Gulf War and was exposed to air pollutants, such as vehicle exhaust, combustion products, burning oil fields, as well as asbestos during remodeling of the Pentagon. Accordingly, the in-service occurrence element has been met. The remaining question, then, is whether such the Veteran’s terminal lung cancer is due to his active service, and if not, whether it has been caused or aggravated by service-connected disability.

One VA examiner addressed the etiology of the Veteran’s lung cancer. In April 2014, the examiner opined it was less likely than not that the Veteran’s lung cancer was related to the Veteran’s service. The examiner considered an article submitted by the Veteran describing an Institute of Medicine of the National Academies study in regard to a link between lung cancer and combustion products experienced by Gulf War veterans. However, the examiner noted that the study found not enough evidence to draw a direct causal link between Gulf War exposures and lung cancer, and that smoking is the major culprit for lung cancer, accounting for 80 percent of all cases, according to the American Cancer Society. In February 2007, the Veteran reported smoking cigarettes for 37 years, ranging from half a pack to a pack a day until he reported quitting in September 2007. Thus, the examiner opined that the primary cause of the Veteran’s lung cancer was likely cigarette smoking, and it is less likely as not that the Veteran’s lung cancer was a progression of his service-connected COPD. In an April 2016 opinion, the examiner reiterated that it was less likely as not that the Veteran’s lung cancer was a progression of his service-connected COPD. In an addendum opinion in March 2017, the same examiner wrote that lung cancer and COPD are two separate pathogenic processes that are not dependent upon one another, and that therefore, the lung cancer would not have been aggravated by the service-connected COPD. The examiner considered the medical history, the Veteran’s lay statements, history of smoking, the Institute of Medicine study, and provided rationale considering all relevant theories of entitlement to service connection. Accordingly, the examiner’s opinions are probative.

To the extent that the Veteran and appellant have asserted that there is a medical relationship between the Veteran’s active duty service and lung cancer, this lay evidence does not provide a basis for allowing the claim. The etiology of lung cancer is a medical question not capable of lay observation. Neither the Veteran nor appellant have shown the medical knowledge or skill to assess a complex medical condition. Accordingly, they are not competent to provide an opinion as to the etiology of the Veteran’s lung cancer. See Jandreau, 492 F.3d 1372 at 1377.

The only medical opinions of record, from the VA examiner in April 2014, April 2016 and March 2017, weigh against a medical link or nexus between the Veteran’s service and lung cancer, including secondary to or aggravated by the Veteran’s service-connected COPD. As there is no competent evidence finding a link between the Veteran’s service and lung cancer, the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49 at 53.
ORDER

Entitlement to service connection for lung cancer for purposes of accrued benefits is denied.

____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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