Citation Nr: 0527598 Decision Date: 10/12/05 Archive Date: 10/25/05 DOCKET NO. 03-26 491 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for colon cancer, claimed as secondary to exposure to asbestos and/or asbestosis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD M.S. Lane, Counsel INTRODUCTION The veteran served on active duty from October 1951 to July 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision. In February 2004, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims folder. In June 2004, the Board remanded this case for additional evidentiary development. FINDINGS OF FACT 1. The veteran is shown at least as likely as not to have asbestosis related to his military service. 2. The veteran's colon cancer is not shown to have been caused or aggravated by his exposure to asbestos or by asbestosis. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the veteran, his disability manifested by asbestosis is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 2002); 38 C.F.R. § 3.303 (2004). 2. The veteran is not shown to have disability manifested by colon cancer due to disease or injury that was incurred in or aggravated by service; nor may any be presumed to have been incurred in service; nor is any proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107, 7104; 38 C.F.R. §§ 3.303, 3.310 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matter The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2004)). The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes evidence development letters dated in March 2001 and June 2004 in which the RO advised the veteran of the evidence needed to substantiate his claims for service connection. In these letters, the RO also advised the veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. The veteran was also advised to identify any additional evidence that he believes may be relevant to his claim and what VA would do to assist him in the development of his claims. The Board notes that the March 2001 letter was issued prior to the initial adjudication of his claims by the agency of original jurisdiction. The Board believes the content of the notice letters provided to the veteran substantially complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in that they advised the veteran of the type of evidence needed to substantiate his claim, and that it advised him of his and VA's responsibilities under VCAA. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial to him. Furthermore, the Board finds that all obtainable evidence identified by the veteran relative to his claims has been obtained and associated with the claims folder, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for an equitable disposition of this appeal. In this regard, the Board notes that the RO arranged for him to undergo several VA examinations to determine the nature and etiology of his claimed disabilities. Accordingly, the Board finds that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under VCAA. 38 U.S.C.A. §§ 5103 and 5103A (West 2002). II. Entitlement to service connection for asbestosis The veteran is seeking service connection for asbestosis, which he claims developed as a result of exposure to asbestos while serving as a fireman in the U.S. Navy. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). At the outset of this discussion, the Board notes that the veteran served in the U.S. Navy from October 1951 to July 1955, and that his military occupational specialty was fireman. In 2000, the RO requested information from the service department regarding whether the veteran had been exposed to asbestos in service, and, if so, to what degree such exposure occurred. In a response received in January 2001, the RO was advised that the General Specification for Ships during that period required heated surfaces to be covered with an insulating material, and that it was highly probably that asbestos products were used to satisfy that requirement. For this reason, and because the veteran's occupation was fireman, it was found to be highly probably that the veteran was exposed to asbestos in service. In light of this finding, the Board concludes that the credible and probative evidence establishes that the veteran was exposed to asbestos in service. Therefore, the Board will now turn to the question of whether the veteran has a current disability related to that exposure. Having reviewed the complete record, the Board finds that there is an approximate balance of positive and negative evidence regarding the medical question of whether the veteran has asbestosis that was incurred in service. In this regard, the Board notes that several chest x-rays and CT scans have been conducted over the last several years to determine whether the veteran has asbestosis, and these diagnostic studies appear to have led to conflicting findings. For example, in June 1999, a physician reviewed the results of chest x-rays and concluded that there was a linear density present laterally on the left lung that could represent linear fibrosis or discoid atelectasis. The examiner also noted minimal pleural thickening bilaterally that could be due to asbestosis. Thereafter, in July 2002, the veteran underwent a VA respiratory examination in which it was noted that the veteran had a history of significant asbestosis exposure during service and after separation from service. The examiner arranged for the veteran to undergo a CT scan, and it was determined that the results of that scan did not show any evidence of pulmonary asbestosis or asbestos-related pleural disease. The examiner further found that there was evidence of chronic obstructive pulmonary disease. However, in May 2003, the veteran underwent an examination by a private physician who reviewed the results of his June 1999 x-rays and arranged for him to undergo another CT scan. It was noted that the x-rays had revealed minimal pleural thickening bilaterally that could have been due to asbestosis. It was also noted that the CT scan had revealed minimal linear fibrosis and scarring, or small patchy infiltrates in the left upper lobe lingular segment inferiorly and peripherally. The physician indicated that, in her opinion, the veteran had pleural asbestosis to a reasonable degree of medical certainty. In March 2005, the RO arranged for the veteran to undergo another VA examination. However, in this report, the examiner focused her discussion primarily on the etiology of the veteran's claimed colon cancer, and there is no indication that additional x-rays or a CT scan were obtained. In short, in view of the conflicting medical evidence discussed hereinabove, the Board concludes that there is an approximate balance of positive and negative evidence regarding the question of whether the veteran has asbestosis that was incurred as a result of service. Therefore, by extending the benefit of the doubt to the veteran in this case, the Board finds that service connection for asbestosis is warranted. III. Entitlement to service connection for colon cancer The veteran is also seeking service connection for colon cancer, which he claims developed secondary to his exposure to asbestos. As indicated, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against granting service connection for colon cancer as secondary to asbestos exposure or the now service-connected asbestosis. In this regard, the Board finds the most probative evidence to be the report of a VA examination conducted in March 2003. In that report, the VA examiner noted that she had performed a literature review and could find no evidence of a link between asbestos exposure and colon cancer. In particular, she noted that studies done by VA showed no evidence of such a link. For this reason, the examiner found that, even if it was presumed that the veteran had asbestosis, his colon cancer was not related to the asbestosis. The Board has considered the July 2003 letter submitted by the veteran in support of his claim. In that letter, a private physician concluded that the veteran's colon cancer was related to his asbestosis. In support of this finding, the physician noted that asbestos particles had been shown to enter the bowel as a result of being coughed up and then swallowed. The physician also noted that asbestos was a known carcinogen, and that an increased risk of gastrointestinal malignancies from asbestos exposure had been shown in numerous studies. However, the Board notes that a large portion of the studies relied on by this physician also included consideration of other gastrointestinal malignancies, such as cancer of the rectum, esophagus, and stomach, in addition to the colon, in finding an increased risk of cancer due to asbestos exposure. As noted above, the VA examiner relied solely on literature dealing with whether a link existed between asbestos exposure and colon cancer, and found that no evidence of such a link had been demonstrated. For this reason, the Board finds the VA examiner's opinion to be the most probative evidence of record. In short, the Board concludes that the preponderance of the evidence is against finding that the veteran's colon cancer was proximately due to or the result of his service-connected asbestosis and/or his exposure to asbestos. Accordingly, based on the evidence of record, the benefit sought on appeal is denied. ORDER Service connection for asbestosis is granted. Service connection for colon cancer is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs