Entitlement to service connection for lung cancer, to include as due to asbestos exposure
Citation Nr: 1303439
Decision Date: 01/31/13 Archive Date: 02/05/13
DOCKET NO. 10-29 573 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
Entitlement to service connection for lung cancer, to include as due to asbestos exposure.
Appellant represented by: New Jersey Department of Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
W. Yates, Counsel
The Veteran served on active duty from February 1955 to January 1957.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was subsequently returned to the Newark, New Jersey RO.
The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).
In June 2012, the Board remanded this matter for additional evidentiary development. For the reasons indicated below, the appeal is again REMANDED to the RO or the Appeals Management Center (AMC) in Washington, DC.
The Veteran is seeking service connection for lung cancer, which he attributes to asbestos exposure while in the Navy from February 1955 to January 1957.
Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce lung cancer, particularly lung cancer that originates in the lung parenchyma rather than the bronchi. For many asbestos related diseases the latency period varies from ten to forty-five or more years between first exposure and development of disease. Veterans Benefits Administration Manual M21-1R, at IV.ii.2.C.9.
The Veteran's service personnel records reflect that he served onboard the USS Forrestal. His service treatment records are negative for findings of lung cancer.
The Veteran submitted letters from his treating private physicians in March 2009. Dr. N stated that, "it is possible that exposure to asbestos can cause certain lung cancers." Dr. K noted the Veteran's history of asbestos exposure in service and his history of cigarette smoking until about the 1960's. He opined that the Veteran's lung cancer, "may be directly related to his asbestos exposure".
A May 2010 VA examination report notes the Veteran's history of lung cancer, which was diagnosed in September 2008, and his history of asbestos exposure in service. The Veteran reported smoking one pack of cigarettes a day for 10 years; he quit smoking 45 years earlier. The VA examiner opined that the Veteran's lung cancer "is not due to asbestos exposure. It is due to cigarette smoking." The VA examiner further stated that the most common risk factor for adenocarcinoma of the lung is cigarette smoking.
Pursuant to the Board's June 2012 remand, the RO or the AMC was to obtain a medical opinion to reconcile (with a detailed explanation of the rationale) the conflicting opinions as to whether the Veteran's lung cancer is related to his asbestos exposure in service. Specifically, the remand stated, "[t]he examiner must reconcile all opinions with those provided by the Veteran's private physicians in March 2009, and/or on VA examination in May 2010."
In August 2012, a VA disability benefits questionnaire (DBQ) was completed. In the DBQ report, the VA examiner opined that the Veteran's lung cancer was less likely than not caused by his inservice exposure to asbestosis. In support of this opinion, the VA examiner stated that the Veteran's adenocarcinoma was most likely caused by the Veteran's smoking, and that asbestos exposure in service is not likely as not the etiology of adenocarcinoma. No attempt to reconcile the prior medical opinions was made.
Under these circumstances, the RO or the AMC must obtain a supplemental medical opinion to reconcile (with a detailed explanation of the rationale) the conflicting opinions of record as to whether the Veteran's lung cancer is related to his asbestos exposure in service. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate).
The August 2012 DBQ report notes that the Veteran underwent a right lower lobectomy in 2009 at Valley Hospital in Ridgewood, New Jersey. Although the AMC requested in June 2012 that the Veteran identify all treatment providers that he has seen for his lung cancer, he failed to respond to this request. Moreover, other than the two private opinion letters, no actual treatment records concerning the Veteran's lung cancer are of record. Given the significance of these records, the RO or the AMC must provide the Veteran with a final opportunity to identify or submit additional treatment evidence in this case.
Accordingly, the case is REMANDED to the RO or the AMC for the following actions:
1. The RO or the AMC should undertake appropriate development to obtain a copy of all outstanding records pertinent to his claim, to include records from Drs. N and K, and Valley Hospital in Ridgewood, New Jersey.
2. Thereafter, the Veteran's claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to the VA examiner who conducted the August 2012 DBQ examination, if available. The VA examiner must then attempt to reconcile the opinions reached by VA examiners in May 2010 and August 2012, with the opinions submitted by the Veteran's private physicians in March 2009. In doing so, the examiner must provide a rationale for favoring one conclusion over the other, which should include citations to pertinent facts and findings, and an explanation as to their significance in support of the opinion provided (along with citation to pertinent medical texts or treatise). If the examiner is unable to provide the requested rationale, the examiner should explain why it cannot be provided.
If the August 2012 examiner is not available, the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to another physician with appropriate expertise, who should be requested to provide the required opinion and supporting rationale.
Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion with supporting rationale.
3. The RO or the AMC should also undertake any other development it determines to be warranted.
4. Then, the RO or the AMC should readjudicate the claim seeking service connection for lung cancer. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. Thereafter, the case should be returned to the Board.
By this remand, the Board intimates no opinion as to any final outcome warranted.
No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
As noted above this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).