Citation Nr: 0501510 Decision Date: 01/19/05 Archive Date: 02/07/05 DOCKET NO. 04-08 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for adenocarcinoma of the colon. 3. Entitlement to service connection for esophageal cancer. 4. Entitlement to service connection for squamous cell carcinoma of the left true vocal cord, claimed as due to asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from August 1947 to August 1951. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (the RO). The record reflects that a motion to advance this case on the docket was filed on the veteran's behalf by his accredited representative in December 2004. Taking into consideration the veteran's advanced age, his motion for advancement on the docket was granted. See 38 C.F.R. § 20.900(c) (2004). In December 2004, a letter was sent to the veteran by the Board, with a copy to his representative, informing him that a substantive appeal as to some of his claims may not have been timely filed and might have to be dismissed. The veteran was given 60 days to submit argument or evidence as to the timeliness of his appeal. In an Informal Hearing Presentation (IHP) dated in January 2005, the veteran's representative concurred with the Board that the veteran's appeal as to these issues was not timely submitted and urged quick action by the Board due to the veteran's age and illness. The issue of entitlement to service connection for squamous cell carcinoma of the left true vocal cord as due to asbestos exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The veteran was notified by VA on March 26, 2003 that entitlement to service connection for prostate cancer due to ionizing radiation was denied. His notice of disagreement (NOD) was received by VA in April 2003. The RO issued a Statement of the Case (SOC) on December 9, 2003. The veteran did not file a timely substantive appeal as to this issue. 2. The veteran was notified by VA on March 26, 2003 that entitlement to service connection for adenocarcinoma of the colon, including as due to ionizing radiation and/or asbestos exposure was denied. His NOD was received by VA in April 2003. The RO issued a SOC on December 9, 2003. The veteran did not file a timely substantive appeal as to this issue. 3. The veteran was notified by VA on March 26, 2003 that entitlement to service connection for esophageal cancer, including as due to asbestos exposure, was denied. His NOD was received by VA in April 2003. The RO issued a SOC on December 9, 2003. The veteran did not file a timely substantive appeal as to this issue. CONCLUSIONS OF LAW 1. The veteran did not timely perfect an appeal as to the issue of entitlement to service connection for prostate cancer; thus, the Board has no jurisdiction to consider that issue and it is dismissed. 38 U.S.C.A. §§ 7104, 7105, 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2004). 2. The veteran did not timely perfect an appeal as to the issue of entitlement to service connection for adenocarcinoma of the colon; thus, the Board has no jurisdiction to consider that issue and it is dismissed. 38 U.S.C.A. §§ 7104, 7105, 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2004). 3. The veteran did not timely perfect an appeal as to the issue of entitlement to service connection for esophageal cancer; thus, the Board has no jurisdiction to consider that issue and it is dismissed. 38 U.S.C.A. §§ 7104, 7105, 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for adenocarcinoma of the colon. 3. Entitlement to service connection for esophageal cancer. As was alluded to in the Introduction above, the Board identified a procedural defect as to some of the issues which were presented to it. Because these three issues are being resolved in the same manner, the Board will discuss them together. Relevant law and regulations The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2004). Appellate review is initiated by the filing of a NOD and completed by the filing of a substantive appeal after a SOC has been furnished. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201 (2004). In order to perfect an appeal to the Board, a claimant must file a substantive appeal, which consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202 (2004). The law requires that a substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent possible, the argument should be related to specific items in the SOC. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board must dismiss any appeal over which it lacks jurisdiction. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. Jurisdiction over an issue does not vest in the Board until an appeal to the Board has been properly perfected by the timely filing of an adequate substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302 (2004). The NOD must be filed within one year from the date that the RO mails notice of the determination. The date of mailing of the notification is presumed to be the same as the date of the letter. 38 C.F.R. § 20.302(a). The substantive appeal must be filed within sixty days from the date that the RO mails the SOC to the appellant, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the statement of the case for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). Factual background In a March 2003 rating decision, the RO denied entitlement to service connection for prostate cancer due to ionizing radiation, entitlement to service connection for adenocarcinoma of the colon including as due to ionizing radiation and/or asbestos exposure, esophageal cancer including as due to asbestos exposure, and entitlement to service connection for squamous cell carcinoma of the left true vocal cord as due to asbestos exposure. The veteran was notified of that decision by correspondence from VA dated March 26, 2003. In April 2003, he filed a NOD as to that decision. A SOC addressing all four issues was provided in December 2003. In March 2004, the veteran submitted a VA Form 9 (formal Substantive Appeal), wherein he stated that he was only appealing the issue of entitlement to squamous cell carcinoma of the left true vocal cord as due to asbestos exposure ("asbestos related laryngeal cancer"); he set forth argument regarding this issue only. The issues of entitlement to service connection for prostate cancer due to ionizing radiation, entitlement to service connection for adenocarcinoma of the colon including as due to ionizing radiation and/or asbestos exposure, and esophageal cancer including as due to asbestos exposure were not mentioned in the Substantive Appeal, which was received by VA on March 10, 2004. The veteran made reference to his prostate and colon cancer in correspondence which was dated March 20, 2004. The correspondence was date-stamped as being received by VA on April 30, 2004. The Board informed the veteran by letter dated December 28, 2004, with a copy to his representative, of its intention to address the question of the timeliness of his substantive appeal regarding his claims. The veteran was informed that he could submit argument pertinent to the question of the timeliness of his substantive appeal to the Board and that he could also present sworn hearing testimony if he so desired. Sixty days was provided for his response; the veteran was informed that if no response was received by the end of that period, it would be assumed that he had no argument to submit and did not want to request a hearing. A copy of pertinent law and regulations accompanied the letter. In a January 2005 IHP, the veteran's representative concurred with the Board that the veteran's appeal as to some issues was not timely submitted. The representative indicated that an attempt should be made to resolve the veteran's case in an expeditious manner given his age and terminal condition. Analysis Initial matter - due process A decision as to the adequacy of the substantive appeal will be made by the Board. See 38 U.S.C.A. § 7108 (West 2002); 38 C.F.R. § 20.101(d) (2004). "It is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party at any stage in the proceedings, and, once apparent, must be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In Marsh v. West, 11 Vet. App. 468 (1998), the Court of Appeals for Veterans Claims (the Court) held that the Board must assess its jurisdiction prior to addressing the merits of a claim. The Court further held, however, that it could be prejudicial to the appellant for the Board to address jurisdictional questions in the first instance without affording an appellant the right to present argument and evidence on those questions. In this case, as discussed above, the Board contacted the veteran and his representative in December 2004, informing him of the possible inadequacy of his substantive appeal and soliciting his response. The veteran's representative provided a written response in January 2005. The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist. The VCAA also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. As discussed in detail below, this case is one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994) Under such circumstances, the VCAA is not applicable. See Manning v. Principi, 16 Vet. App. 534, 542-3, and cases cited therein. [the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter]. General due process considerations have been complied with. See 38 C.F.R. § 3.103 (2004). It is clear that the veteran was informed of the necessity of filing a timely substantive appeal. See, in particular, the December 2003 SOC, page 1. The veteran was furnished with a VA Form 9, with accompanying instructions, by the RO in December 2003. As noted above, the Board provided the veteran with pertinent law and regulations and gave him the opportunity to respond to its December 2004 letter. Thus, the Board concludes that the veteran was appropriately notified of the legal requirements pertaining to the adequacy of substantive appeals. Discussion As discussed in the factual background section above, the veteran's claims for entitlement to service connection for prostate cancer due to ionizing radiation, entitlement to service connection for adenocarcinoma of the colon including as due to ionizing radiation and/or asbestos exposure, and entitlement to service connection for esophageal cancer including as due to asbestos exposure were denied by the RO in March 2003. The veteran was provided notice of the denials on March 26, 2003. A NOD was received in April 2003. This is within the one year period provided in 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.302. A SOC was mailed to the veteran at his most recent address of record on December 9, 2003. In the transmittal letter provided with the SOC, the veteran was advised that he needed to complete and submit the enclosed VA Form 9 within 60 days of the date of the SOC to perfect an appeal as to those issues. On March 1, 2004, the veteran filed a VA Form 9 wherein he stated that he was only appealing the issue of entitlement to squamous cell carcinoma of the left true vocal cord as due to asbestos exposure. He did not set forth any argument regarding the issues of entitlement to service connection for prostate cancer due to ionizing radiation, entitlement to service connection for adenocarcinoma of the colon, including as due to ionizing radiation and/or asbestos exposure, and entitlement to service connection for esophageal cancer including as due to asbestos exposure. The Board has concluded that the veteran did not submit a timely filed substantive appeal as to the issues of entitlement to service connection for prostate cancer due to ionizing radiation, entitlement to service connection for adenocarcinoma of the colon, including as due to ionizing radiation and/or asbestos exposure, and entitlement to service connection for esophageal cancer including as due to asbestos exposure. The VA Form 9 received in March 2004 does not constitute a timely filed substantive appeal as to those issues; the veteran clearly stated that he was limiting his appeal to the issue of service connection for squamous cell carcinoma of the left true vocal cord as due to asbestos exposure. The correspondence received from the veteran on April 30, 2004 does not constitute a timely substantive appeal as to any of these issues. As noted above, a Substantive Appeal must be filed within 60 days of the date of mailing of the SOC (December 9, 2003) or within one year of the date of mailing of the notification of the denial of the claim (March 26, 2003), whichever date is later. The Board has carefully reviewed the record in order to determine whether any other communication by or on behalf of the veteran constitutes an adequate substantive appeal under the pertinent law and regulations. The Board has identified no such communication, and the veteran has pointed to none. The formality of perfecting a timely appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both a notice of disagreement and a formal appeal. See Roy v. Brown, 5 Vet. App. 554 (1993). Pursuant to VAOPGCPREC 9-99, the Board may dismiss any appeal which is not timely filed. Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal with respect to the issues of entitlement to service connection for prostate cancer due to ionizing radiation, entitlement to service connection for adenocarcinoma of the colon, including as due to ionizing radiation and/or asbestos exposure, and entitlement to service connection for esophageal cancer including as due to asbestos exposure. The veteran's representative, as stated in her January 2005 IHP, concurs with the Board that a VA Form 9 was not timely filed. It is clear from a reading of that document that, given the veteran's age and terminal disabilities, the representative wishes the Board to focus its attention on his remaining claim for entitlement to service connection for squamous cell carcinoma of the left true vocal cord as due to asbestos exposure. In conclusion, because the veteran's substantive appeal was not timely, the Board lacks jurisdiction to adjudicate the issues of entitlement to service connection for prostate cancer due to ionizing radiation, entitlement to service connection for adenocarcinoma of the colon including as due to ionizing radiation and/or asbestos exposure, entitlement to service connection for esophageal cancer including as due to asbestos exposure. Consequently, his appeal as to these issues must be dismissed. See Roy, supra; see also Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) [discussing the necessity to filing a substantive appeal which comports with governing regulations]. ORDER The veteran's claim for entitlement to service connection for prostate cancer is dismissed. The veteran's claim for entitlement to service connection for adenocarcinoma of the colon is dismissed. The veteran's claim for entitlement to service connection for esophageal cancer is dismissed. REMAND 4. Entitlement to service connection for squamous cell carcinoma of the left true vocal cord, claimed as due to asbestos exposure. The veteran contends that his squamous cell carcinoma of the left true vocal cord is the result of exposure to asbestos while serving aboard ship in the United States Navy from August 1947 to August 1951. The veteran's service personnel records confirm that he served aboard the U.S.S. Breckinridge while in the U.S. Navy and that his duties included engineering hand and boiler repairman. Post-service medical evidence reflects that squamous cell carcinoma of the left true vocal cord was first diagnosed in 1996 with subsequent radiation treatment. A "30-pack-year history of smoking (he quit 15 years ago)" was noted at that time. An October 2003 VA examination notes that after military service the veteran worked as a trucker for three years, and in "tire and lubrication" for 31 years. Pertinent law and regulations There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos- related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 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). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, 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. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Additional development required In support of his claim, the veteran has submitted legal records from the Law Offices of J.D. including a March 2000 settlement agreement indicating that he received a monetary settlement in a class action suit against the manufacturers of asbestos. No details regarding this lawsuit were set forth in these documents except for the amount of monetary amounts paid to the veteran. It is unclear from the documents in what court the legal action was filed. The veteran contends that the settlement agreement confirms his exposure to asbestos in service. However, while the settlement agreement states that the veteran was exposed to asbestos the documentation that has been provided does not reflect when such exposure was to have taken place. In other words, the settlement agreement does not rule out the possibility that the veteran's asbestos exposure occurred after service. As noted above, the veteran worked for many years in a tire shop, so possible exposure to asbestos in brake linings or mufflers may be indicated. Given the above, the Board believes that further development is necessary to determine the level of the veteran's asbestos exposure in service and after service. In the opinion of the Board, it would be useful if all pertinent documents pertaining to that lawsuit were associated with the claims file. Moreover, there is the matter of the relationship, if any, between such asbestos exposure and the veteran's history of smoking and the claimed cancer. Accordingly, this case is REMANDED to the Veterans Benefits Administration (VBA) for the following: 1. VBA should contact the veteran through his representative in order to obtain any relevant documents pertaining to the asbestos lawsuit from which the veteran received a settlement. In particular, BVA should determine in what court the legal action against the asbestos manufacturers was filed. VBA should also request that the veteran provide either any documents he has concerning the asbestos lawsuit, or provide a release allowing VA to request records from the Law Office of J.D. concerning the asbestos lawsuit. VBA attempt to obtain all available records concerning the lawsuit against the asbestos manufacturers that was settled in 2000. Any such records so obtained should be associated with the claims file. VBA should also undertake any other development concerning the matter of the veteran's in-service and post- service asbestos exposure that it deems to be appropriate. 2. Thereafter, VBA should refer the veteran's claims file to an appropriately qualified physician for a medical opinion as to the likelihood, i.e., whether it is at least as likely as not, that the veteran's current squamous cell carcinoma of the left true vocal cord is etiologically related to his military service. After reviewing the veteran's service and post-service medical records, his post-service employment history (to include any possible asbestos exposure), and other relevant evidence of record, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran's squamous cell carcinoma of the left true vocal cord is a result of his active military service. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Thereafter, VBA should readjudicate the issue of entitlement to service connection for squamous cell carcinoma of the left true vocal cord. If any benefit sought remains denied, the veteran and his representative should be provided a supplemental statement of the case, which reflects consideration of all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until contacted. The veteran 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs