Citation Nr: 0533847 Decision Date: 12/15/05 Archive Date: 12/30/05 DOCKET NO. 05-19 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for prostate cancer as a result of in-service exposure to asbestos. 2. Entitlement to service connection for skin cancer (basal and/or squamous cell) as a result of in-service exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Powers, Associate Counsel INTRODUCTION The veteran served on active duty from December 1943 until April 1946. This case comes before the Board of Veterans' Appeals on appeal from a December 2004 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In pertinent part, the RO denied claims of entitlement to service connection for prostate cancer and basal cell carcinoma. In filing his claims, the veteran requested service connection for "skin cancer" with his medical records confirming diagnoses of both basal cell and squamous cell carcinomas of the skin. In a statement received in March 2005, he argued that his disabilities were related to in-service exposure to asbestos. The Board has rephrased the issues listed on the title page to better reflect his claim on appeal. The Board notes that, in October 2005, the veteran submitted additional evidence to the Board that had not been reviewed by the RO. At that time, the veteran waived RO consideration of this evidence. The Board will proceed accordingly. FINDINGS OF FACT 1. There is no competent evidence that the veteran's prostate cancer, that first manifested many years after service, is causally related to event(s) in service, to include his claimed exposure to asbestos. 2. There is no competent evidence that the veteran's squamous cell and basal cell carcinomas, that first manifested many years after service, is causally related to event(s) in service, to include his claimed exposure to asbestos. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by active service, nor may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2005). 2. Squamous cell and basal cell carcinoma was not incurred in or aggravated by active service, nor may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to service connection for prostate and skin (basal and/or squamous cell) cancers as a result of in-service exposure to asbestos. Specifically, he states that two instances could be the cause of the aforementioned cancers. First, during the Battle of Okinawa in World War II, he served as a machine gunner and truck driver in the 713th Tank Battalion. According to the veteran, his tank exploded which caused him to be exposed to asbestos. Second, during training at Fort Knox, the veteran fell into a booby trap which exploded causing damage to his left leg. The service records available for review corroborate that he served in the 713th Tank Battalion and was injured at Fort Knox. While the case was pending at the Board, the veteran submitted a statement from his private doctor, Dr. Steven W. Mamus, from the Cancer Centers of Florida, who provided a statement which discussed the above cancers and the veteran's "military-related asbestos exposure." Specifically, Dr. Mamus stated the following: [The veteran] is a patient that we have been following for history of multiple malignancies including prostate cancer, basal, and squamous cell carcinoma of the skin. He has a history of multiple other medical problems including colon cancer and coronary artery disease. The patient does have a significant history of asbestos exposure while in training & [sic] fell on a land mine at Fort Knox in Kentucky in 1943, and also while in battle in a tank regimen in Okinawa in the tanker over a bomb & exploded [sic] in Japan during World War II. This letter is written in support for his request for disability coverage for military-related asbestos exposure. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, during periods of active wartime military service. 38 U.S.C.A. § 1110 (West 2002). In order to qualify for entitlement to compensation under 38 U.S.C.A. § 1110, a claimant must prove the existence of (1) a disability and (2) that such disability has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1360-61 (Fed. Cir. 2001). Specified diseases listed as chronic in nature may be presumed to have been incurred in service, if the evidence shows that such disease manifested to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2005). Malignant tumors are among the listed diseases. The veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board shall consider all information, including lay and medical evidence of record. 38 U.S.C. § 5107(b) (West 2002). When an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter exists, the Board shall give the benefit of the doubt to the claimant. Id. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection any disease or injury alleged to have been incurred in or aggravated by such service, including satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). For injuries alleged to have been incurred in combat, the provisions of 38 U.S.C.A. § 1154(b) provide a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2005). "Satisfactory evidence" is credible evidence. Collette, 82 F.3d at 392. Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2005). This provision does not establish a presumption of service connection but eases the combat veteran's burden of demonstrating the incurrence of some in- service incident to which the current disability may be connected. Collette, 82 F.3d at 392. The reduced evidentiary burden only applies to the question of service incurrence and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). VA has defined competency of evidence, pursuant to 38 C.F.R. § 3.159(a), as follows: (1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. The veteran has described in-service exposure to asbestos occurring in the combat environment. See 38 U.S.C.A. § 1154(b) (West 2002). The presumption of service incurrence or event, however, does not relieve him for carrying the evidentiary burden that his current disability, cancer of the prostate and skin, is causally related to the claimed in- service exposure to asbestos. Brock, 10 Vet. App. at 162. See also Libertine, 9 Vet. App. 521 (1996); Beausoleil, 8 Vet. App. 459, 464 (1996). His report of combat injury has been considered pursuant to 38 U.S.C.A. § 1154(b), and for purposes of this decision, the Board will presume the veteran was exposed to asbestos as claimed. The available service medical records do not show treatment for either prostate cancer or skin cancer. Rather, his separation examination dated April 1946 indicated "NORMAL" clinical evaluations of the "Skin" and "Genito-Urinary" system. In this case, there is no dispute that the prostate and skin cancers did not manifest until many years after service. Specifically, the veteran was diagnosed with prostate cancer in 1999, squamous cell carcinoma in 2003, and basal cell carcinoma in 2004. There is no competent medical evidence contained in the claims folder relating prostate cancer and/or skin cancer to event(s) in service, to include the claimed asbestos exposure. Here, Dr. Mamus failed to provide a competent medical opinion relating the veteran's prostate and/or skin cancers to the asbestos exposure. Instead, Dr. Mamus only stated the veteran's history of asbestos exposure without rendering any medical opinion supporting a direct causal relationship between that exposure and the cancers. A claim must be supported by evidence and sound medical principles, not just assertions. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); See, e.g., Hanson v. Derwinski, 1 Vet. App. 512 (1991) (holding that a veteran is entitled to service connection where he submits a supportable medical opinion of an etiological relationship that is unrefuted by other medical opinion of record); Watai v. Brown, 9 Vet. App. 441, 443 (1996) (holding that medical evidence regarding the nexus relationship to service expressed as "very well might have been," although not "conclusive," suffices for meeting the minimum burden of proof). Furthermore, VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.21(a)(1) (Oct. 3, 1997), specifically excludes prostate cancer as a cancer associated with asbestos exposure. Carcinomas of the skin are not listed among the asbestos- related diseases. Neither the veteran's self diagnosis nor the provisions of 38 U.S.C.A. § 1154(b) supplant the evidentiary requirements of competent nexus evidence supportive of the claim. The veteran is not shown to possess the requisite medical training to provide a nexus opinion in this case. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); 38 C.F.R. § 3.159(a) (2005). Furthermore, Dr. Mamus' opinion holds no probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). Even though the veteran may have been exposed to asbestos while in service, no competent medical opinion relating the veteran's prostate and/or skin cancers to the asbestos exposure exists. Accordingly, the Board must deny the claims of entitlement to service connection for prostate and skin (basal and/or squamous cell) cancers. In so holding, the Board notes that the claims folder has been carefully reviewed to ensure compliance with the provisions of the Veterans Claims Assistance Act (VCAA) of 2000. 106 P.L. 475, 114 Stat. 2096 (2000). In pertinent part, this law defines VA's notice and duty to assist requirements in the development of certain claims for benefits. See 38 U.S.C.A. § 5102, 5103, 5103A and 5107 (West 2002). The Court of Appeals for Veterans Claims (CAVC) has emphasized that the provisions of the VCAA impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA has a duty to notify a claimant (and his representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant, and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. The CAVC's decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This "fourth element" of the notice requirement is found at 38 C.F.R. § 3.159(b)(1). The Pelegrini II Court also held that the language of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) requires that a VCAA notice be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Board finds that there has been substantial compliance with the VCAA notice requirements. With regard to element (1), above, the Board notes that a pre-adjudicatory RO letter dated July 28, 2004, as well as the rating decision on appeal and the Statement of the Case (SOC), told him what was necessary to substantiate his claims. In fact, the rating decision on appeal and the SOC provided him with specific information as to why his claim was being denied and of the evidence that was lacking. The July 28, 2004 letter satisfied the elements of (2) and (3) by notifying the appellant of his and VA's respective responsibilities for obtaining information and evidence under the VCAA. More specifically, the document explained that VA would help him get such things as medical records or records from other Federal agencies, but he was responsible for providing any necessary releases and enough information about the records so that VA could request them from the person or agency that had them. With respect to element (4), the Board notes that the documents cited above identified for the appellant evidence and/or information in his possession deemed necessary to substantiate his claim, and he was instructed to send the evidence that he had and/or tell VA about any additional information or evidence that he desired VA to obtain on his behalf. Additionally, the letter told the veteran as follows: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." The May 2005 SOC provided him with the complete text of 38 C.F.R. § 3.159(b)(1). Based upon the above, the Board finds substantial compliance with VA's notice requirements. The Board is mindful that, in concluding that the VCAA notice requirements have been satisfied, the Board has relied on multiple communications of record. The purpose of the VCAA is to give the appellant notice of the elements outlined above. Once that has been done, irrespective of whether it has been done by way of a single notice letter or via more than one communication, the essential purposes of the VCAA have been satisfied. Here, the Board finds that, because each of the four content requirements of a VCAA notice have been met, any error in not providing a single notice to the appellant covering all content requirements was harmless. See, e.g., 38 C.F.R. § 20.1102 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005). The RO has obtained all available service medical records that includes his induction and separation examination as well as multiple clinic records. There is no allegation that prostate and/or skin cancer were first manifested in service or that any additional service medical records are missing that may be pertinent to the claims on appeal. The RO has obtained all evidence and/or information identified by the appellant as relevant to his claims on appeal. Absent a minimal showing by competent evidence that the veteran manifests an asbestos- related disease, or any other disability related to event(s) in service, VA has no duty to obtain a medical opinion in this case. Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). There is neither a statute specifically dealing with asbestos and service connection for asbestos-related diseases nor has the Secretary promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. With asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (holding that although the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service and develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure. M21-1, Part VI, para. 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the Board presumes the veteran's exposure to asbestos for purposes of this decision. As such, development of his pre-service, in-service and post-service asbestos exposure is unnecessary. According to the M-21, 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 pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system are also associated with asbestos exposure. See M21-1, Part VI, para. 7.21(a)(1). 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). In this case, the M-21 specifically indicates that prostate cancer is not among the urogenital diseases that may have a relationship to asbestos exposure. Furthermore, skin cancer is not listed as among the most common diseases resulting from exposure to asbestos. Furthermore, the evidence and information of record, in its totality, provides the necessary information to decide the case. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 4.2 (2005). No reasonable possibility that any further assistance to the appellant would be capable of substantiating his claims exists. Thus, on appellate review, the Board sees no areas in which further development is needed. The RO has substantially complied with the requirements of the VCAA, and there would be no benefit in developing this case further. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (stating that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for further consideration of the claim under the VCAA, poses no prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92 (July 24, 1992). ORDER The claim of entitlement to service connection for prostate cancer as a result of in-service exposure to asbestos is denied. The claim of entitlement to service connection for skin cancer (basal and/or squamous cell) as a result of in-service exposure to asbestos is denied. ____________________________________________ C.W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs