Citation Nr: 0612402 Decision Date: 04/28/06 Archive Date: 05/09/06 DOCKET NO. 03-18 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for lung cancer, claimed as secondary to exposure to carbon tetrachloride and trichloroethylene. 2. Entitlement to service connection for prostate cancer, claimed as secondary to exposure to carbon tetrachloride and trichloroethylene. WITNESSES AT HEARING ON APPEAL The veteran, his spouse, and T.G. ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from May 1961 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2004, the veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in Phoenix. The transcript of the hearing is associated with the claims folder. In July 2004, the Board remanded the case for further development. The case has since returned to the Board for further development. FINDINGS OF FACT 1. Resolving any doubt in the veteran's favor, exposure to carbon tetrachloride and trichloroethylene has been shown. 2. The veteran's lung cancer has been medically linked to in-service exposure to carbon tetrachloride and trichloroethylene. 3. There is no medical evidence linking prostate cancer to the veteran's period of service, to include exposure to carbon tetrachloride and trichloroethylene. CONCLUSIONS OF LAW 1. Lung cancer was incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). 2. Prostate cancer was not incurred in or aggravated by service, nor may it be presumed to be of service onset; and prostate cancer is not related to any inservice disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2005), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In the present case, the veteran was provided with the notice required by the VCAA by letters dated in May 2001, July 2002, July 2003 and July 2004. The originating agency specifically informed the veteran to submit any pertinent evidence in his possession, informed him of the evidence required to substantiate his claim, the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf. Therefore, the Board finds that he was provided with the notice required by the VCAA . The veteran indicated that he has been in receipt of benefits from the Social Security Administration (SSA) since January 2001. In its July 2004 remand, the Board requested all of the veteran's SSA records. In the same month, the SSA National Records Center responded, indicating that after an exhaustive and comprehensive search, they were unable to find the veteran's social security folder. Given such reply, the Board finds that additional efforts to obtain such records would be futile. According to a September 2001 statement, the veteran identified medical treatment from Dr. Derfelt from 1966 to 1973, and treatment from Dr. Boaz from 1973 to 1988. However, the veteran stated that both doctors have since deceased and no records are available. All available evidence pertaining to the veteran's claim has been obtained. The veteran has been afforded appropriate VA examinations, and the claims folder contains service medical records and post-service VA evidence from the VA Medical Centers in Prescott and Tucson. Neither the veteran nor his representative has identified any additional pertinent evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the veteran in the development of the facts pertinent to this appeal. The record also reflects that the originating agency readjudicated the veteran's claims following the provision of the required notice and the completion of all indicated development of the record. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. As the Board concludes below that the preponderance of the evidence is against the veteran's service connection claim for prostate cancer, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Thus, there can be no possibility of any prejudice to the veteran. Further, with regard to the favorable action being taken by granting service connection for lung cancer, a decision at this point poses no risk of prejudice to the veteran. The agency of original jurisdiction will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. See, Dingess/Hartman v. Nicholson, Nos. 01-1917 & 02-1506 (U.S. Vet. App. Mar. 3, 2006); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio, 16 Vet. App. 183; Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2005) (harmless error). For the above reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide the issues discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio, 16 Vet. App. 183; Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2005) (harmless error). Background The veteran asserts that his lung cancer and prostate cancer were incurred as a result of exposure to carbon tetrachloride and trichloroethylene during his period of active service. His military occupational specialty was a radar repairman. The veteran indicates that while stationed at Mill Valley Air Force Station, he worked the nightshift removing paint that had been placed on the floors against regulations. To remove the paint, he reports that he was given 5-gallon buckets of carbon tetrachloride and 55-gallon drums of trichloroethylene. He then poured the chemicals on the floor and let the chemicals permeate through the remainder of his shift. He states that the building was not ventilated and that he was not afforded protection from the fumes. He has submitted medical articles regarding the effects of carbon tetrachloride and trichloroethylene in humans. In February 2000, he developed adenocarcinoma of the prostate and underwent a total radical prostatectomy. In September 2000, he underwent surgery of his left lobe; such surgery revealed adenocarcinoma of the left lower lobe. The following month, a left upper lobe nodule was diagnosed as squamous cell carcinoma. In March 2002, the veteran underwent a VA examination. The veteran indicated that he had been exposed to pertinent chemicals for a total of 72 hours while in the service. The examiner stated that he "did not know if exposure to carbon tetrachloride and trichloroethylene is related to his lung cancer, but it is probably unlikely due to the very short duration of exposure." In April 2004, after having developed pneumonia and effusion, the veteran was found to have metastatic carcinoma, diagnosed as advanced non-small cell lung carcinoma with pleural-based metastases. In May 2005, a VA examiner provided an opinion after reviewing the veteran's claims folder and related medical literature. The May 2005 VA examiner reviewed medical literature from the NIH (National Institute of Health) regarding the possible carcinogenic effects of carbon tetrachloride in humans, and on-line "Up-to-Date" entries, which note that adenocarcinoma of the lung is most frequent in nonsmokers and discussed the risk factors for cancer of the lung. The examiner pointed out that the veteran had a minimal smoking history; a 3 to 4 pack a year history dating back to the early 1960's. Therefore, the examiner opined that the veteran's current lung cancer is as likely as not related to the in-service exposure to the possible carcinogenic affects documented in the "Up-To-Date" quotations, as well as according to the NIH medical literature. Legal Criteria For service connection to be established, there must be a current disability and evidence that such disability resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). Regulations also provide that service connection may 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) (2005). For service connection to be established, there must be a current disability and evidence that such disability resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). Regulations also provide that service connection may 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) (2005). When a chronic disease, such as arthritis, becomes manifest to a compensable degree within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Analysis The veteran asserts that he is entitled to service connection for lung cancer and prostate cancer based on in-service exposure to carbon tetrachloride and trichloroethylene. By a September 2001 letter, the RO requested objective evidence from the veteran showing that he was exposed to those chemicals in service. He has not provided such evidence. Further, review of the veteran's service medical records fail to show that the veteran sought treatment for any malady due to exposure to such chemicals. Thus, there is no objective evidence of record reflecting that the veteran was exposed to carbon tetrachloride or trichloroethylene in service. However, the Board notes that lay testimony and statements are deemed competent evidence as to a description of symptoms observed. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In addition to the veteran's statements regarding his claimed chemical exposure, his wife testified that she noticed a strong odor on the veteran's clothes during his period of military service. She noticed the odor when she laundered his clothes. Thus, resolving any doubt in the veteran's favor, for purposes of this decision, the Board finds that the veteran was exposed to carbon tetrachloride and trichloroethylene in service. a. Lung Cancer As noted above, the veteran does not contend and the evidence does not show that he had lung cancer in service or within his first post-service year. Rather, the veteran asserts that he recently developed lung cancer as a result of in- service exposure to carbon tetrachloride and trichloroethylene. With regard to the etiology of the veteran's lung cancer, the March 2002 VA examiner was unsure whether such cancer was related to the in-service carbon tetrachloride and trichloroethylene exposure, and doubted such a relationship due to the short duration of exposure. To the contrary, the May 2005 VA examiner opined the veteran's lung cancer is as likely as not related to in-service exposure to pertinent chemicals, even considering the reported 72 hours of exposure. The examiner also took into account the veteran's testimony regarding his post-service employment in the ceramic tile and electronics industries. Given that the May 2005 examiner thoroughly reviewed the veteran's claims folder and conducted medical research on lung malignancies and the possible carcinogenic effects of carbon tetrachloride, the Board finds the May 2005 VA opinion to be more-informed. There is no indication that the March 2002 examiner reviewed the claims folder or any medical literature. Accordingly, resolving any doubt in the veteran's favor, the Board finds that the veteran's lung cancer is related to service. Service connection for lung cancer, secondary to in-service exposure to carbon tetrachloride and trichloroethylene, is granted. b. Prostate Cancer Again, the veteran does not assert nor does the medical evidence show that he had prostate cancer during his period of military service or within the first post-service year. Even conceding in-service exposure to carbon tetrachloride and trichloroethylene, there is no competent evidence linking the veteran's prostate cancer to such exposure. The March 2002 examiner did not discuss the etiology of the veteran's prostate cancer, and the May 2005 VA examiner was unable to relate the veteran's prostate cancer to the chemical exposure. Significantly, after reviewing various medical literature, the May 2005 VA examiner concluded that he could not state with certainty that there is a relationship between exposure to carbon tetrachloride or trichloroethylene and prostate cancer. The examiner indicated that there is an absence of medical literature either supporting or negating the possibility of a relationship between pertinent chemical exposure and prostate cancer. In essence, the examiner was unable to link the veteran's prostate cancer to service without resorting to speculation. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2005). The Board notes that the record does not contain a medical opinion favorable to his service connection claim for prostate cancer. The Board has reviewed all evidence of record and concludes that the veteran's service connection claim for prostate cancer must be denied. As the preponderance of the evidence is against the veteran's service connection claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for lung cancer, claimed as secondary to exposure to carbon tetrachloride and trichloroethylene, is granted. Entitlement to service connection for prostate cancer, claimed as secondary to exposure to carbon tetrachloride and trichloroethylene, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs