Citation Nr: 0509721 Decision Date: 04/01/05 Archive Date: 04/15/05 DOCKET NO. 03-23 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for lung cancer as a result of asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tanya A. Smith, Associate Counsel INTRODUCTION The veteran had active service from July 1946 to June 1948. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand of May 2004. This matter was originally on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. In response to an April 29, 2004 motion from the veteran's representative, this appeal has been advanced on the docket because of the veteran's age. 38 C.F.R. § 20.900(c) (2004). FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The evidence of record shows that the veteran was likely exposed to asbestos during service. 3. The competent medical evidence of record shows that the veteran is not currently diagnosed with an asbestos-related disorder. 4. The service medical records and post-service medical records show that the veteran's lung cancer was not present during service and did not manifest to a compensable degree during the one-year presumptive period following the veteran's discharge from service; there is no competent medical evidence of record that shows that the veteran's lung cancer is otherwise related to any other incident of his service. CONCLUSION OF LAW Lung cancer, including as a result of asbestos exposure, was not incurred in or aggravated by active service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION In May 2004, the Board remanded the veteran's claim to the RO via the AMC for additional development. On Remand, as instructed, the AMC afforded the veteran a VA examination and obtained a medical opinion on the identity and etiology of any lung disorder found on examination. Based on the foregoing, the Board finds that the RO complied with the Board's May 2004 Remand. Stegall v. West, 11 Vet. App. 268 (1998). The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2004). VA is required to provide the claimant with notice of what information or evidence is to be provided by the Secretary and what information or evidence is to be provided by the claimant with respect to the information and evidence necessary to substantiate the claim for VA benefits. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board finds that VA's enhanced duty to notify under the VCAA has been met. In this regard, the Board notes that in correspondence dated in September 2002, the RO advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. Quartuccio, 16 Vet. App. at 187. The RO advised the veteran of the information and evidence necessary to establish service connection for a disability resulting from exposure to asbestos while on service. The Board acknowledges that the September 2002 VCAA notice contained no specific request for the veteran to provide any evidence in the veteran's possession that pertained to the claim, or something to the effect that the veteran give VA everything he had that pertained to his claim. 38 C.F.R. § 3.159 (b)(1) (2004). Nevertheless, the RO asked the veteran for all the information and evidence necessary to substantiate the claim. A generalized request for any other evidence pertaining to the claim would have been superfluous and unlikely to lead to the submission of additional pertinent evidence. Indeed, in response to the VCAA notice, the veteran and his authorized representative submitted the requested pertinent information along with pertinent medical evidence in October and November 2002. Therefore, it can be concluded, based on the particular facts and circumstances of the case, the omission of the request for "any evidence in the claimant's possession that pertains to the claim" in the notice appears not to have harmed the veteran, and it would be legally proper to render a decision in the case without further notice under the regulation. In further regard to VA's duty to notify, the Board notes that the RO provided the veteran with a copy of the February 2003 rating decision and April 2003 Statement of the Case (SOC) issued by a Decision Review Officer, which together provided the veteran with notice as to the evidence needed to substantiate his claim and the reasons for denial of the claim. The April 2003 SOC provided the veteran with notice of all the laws and regulations pertinent to his claim, including the law and implementing regulations of the VCAA. The Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. In regard to VA's duty to assist, as previously discussed, the veteran was afforded a VA examination and a medical opinion was obtained. This additional development was ordered because an examination and nexus opinion were necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). The RO also obtained the veteran's service medical records and relevant records from the veteran's personnel file. The Board notes that adequate evidence for a determination as to whether the veteran was likely exposed to asbestos during service has been associated with the claims file. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Moreover, the Board finds that development pursuant to VA Adjudication Procedure Manual, M21-1 has been completed. Accordingly, the Board will proceed with appellate review. The Board observes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases which provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A. § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. See VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21- 1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Id. VA recognizes that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. See M21-1, part VI, para. 7.21(a)(3). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In order to establish service connection for a disability resulting from asbestos exposure, the evidence must show that the veteran was exposed to asbestos during service and that the veteran is currently diagnosed with asbestosis or an asbestos-related disease that resulted from the in-service asbestos exposure. The veteran contends that he was exposed to asbestos in the performance of his duty assignments for the entire period of his active duty service. The veteran's DD Form 214 and service records showed that he served in the United States Navy and his military occupational specialties were Aviation Support Equipment Technician, Seaman, and Airman. The military occupation specialties of Airman and Seaman are both recognized by VA to have minimal exposure to asbestos. The military occupation specialty of Aviation Support Technician is recognized to have a probable exposure to asbestos. According to the chronology of employment the veteran provided, upon his discharge from service, he worked for a brief period at a gas station, and thereafter up to the time of his retirement, he worked in an office and in management. On the basis of the foregoing, the Board finds that the veteran's military occupational specialties show that it was likely that the veteran was exposed to asbestos during service. Also, there does not appear to be any post-service evidence of likely occupational or other asbestos exposure, assuming the accuracy and credibility of the chronology provided by the veteran. In regard to the question of whether the veteran is currently diagnosed with an asbestos-related disease, the Board notes that treatment records from William Beaumont Hospital showed that the veteran was diagnosed and treated for non-small cell carcinoma of the lung in 2002. The records also showed that the veteran was diagnosed with chronic obstructive pulmonary disease and that the veteran was a fifty-five pack a year cigarette smoker-he reportedly stopped in December 2001. The records included numerous computerized axial tomography (CT) scans, chest x-rays, and positron-emission tomography oncology studies. The August 2004 VA examination report showed that the examiner reviewed the claims file. The examiner noted that the veteran's medical records, especially CT scans, and lung and biopsy reports, revealed no findings suggestive of asbestosis. The examiner reported that there was no pleural density or thickening in the initial CT scan conducted in February 2002. The examiner noted however that the September 2002 CT scan revealed new lateral scarring versus pleural thickening in the anterolateral left lung base mostly related to post surgical and radiation changes. The examiner discussed the current examination results as well as the results from a February 2004 CT scan of the thorax and June 2004 CT scan of the lungs. The examiner diagnosed non-small carcinoma, left lung, status post chemotherapy. The examiner noted that there was no evidence of asbestos-related changes in the veteran's CT scan of the lungs and biopsy report. The examiner opined that the veteran's lung cancer was likely related to his smoking and unlikely related to his asbestos exposure during service. The foregoing medical evidence shows that the veteran's lung cancer is not an asbestos-related disorder. There is no medical opinion of record contrary to the August 2004 VA examiner's opinion. In the absence of a currently diagnosed asbestos-related disorder, service connection for lung cancer as a result of asbestos exposure may not be established. As noted above, the Board does not doubt that the veteran was exposed to asbestos during service, but without medical evidence of a disorder due to that exposure, the claim must be denied. Exposure to asbestos, in and of itself, is not considered a disability for VA purposes. The Board is required to consider other theories of entitlement reasonably raised, and therefore, the Board must also assess whether service connection for the claimed disorder may be established on a basis other than asbestos exposure. The service medical records and post-service medical records show that the veteran's lung cancer was not present during service and did not manifest to a compensable degree during the one-year presumptive period following the veteran's discharge from service. Moreover, there is no competent medical evidence of record that shows that the veteran's lung cancer is otherwise related to any other incident of his service. Therefore, service connection for lung cancer is not warranted. As the preponderance of the evidence is against the veteran's claim, the "benefit of the doubt" doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2004) Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lung cancer, including as a result of asbestos exposure is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs