Citation Nr: 0534972 Decision Date: 12/28/05 Archive Date: 01/10/06 DOCKET NO. 99-17 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a respiratory disorder, formerly claimed as entitlement to service connection for pneumonia, to include as secondary to inservice asbestos exposure. 2. Entitlement to service connection for bladder cancer, to include as secondary to inservice asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD T. Hal Smith INTRODUCTION The veteran served on active duty from August 1948 to October 1951. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1998 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Los Angeles, California. In December 2000 and June 2003, the Board remanded these matters for further development and adjudicative action. The RO most recently affirmed the previous denial in June 2005. The appeal continues. As noted on the title page of this decision, the issue of entitlement to service connection for a respiratory disorder was previously claimed as entitlement to service connection for pneumonia. For purposes of clarity, the issue has now been reclassified to include all respiratory disorders. FINDINGS OF FACT 1. The competent medical evidence of record does not establish a nexus between the veteran's military service and his currently diagnosed respiratory disorder, COPD, to include asbestos exposure. 2. The competent medical evidence establishes that the veteran's cancer of the bladder was first manifested many years after service. The competent medical evidence does not establish that the veteran's cancer of the bladder is causally related to any event of service, to include asbestos exposure. CONCLUSIONS OF LAW 1. A respiratory disorder, COPD, was not incurred in or aggravated by the veteran's military service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303 (2005). 2. Cancer of the bladder was not incurred in or aggravated by active service, nor is it presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA: Duties to Notify and Assist The President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) on November 9, 2000. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). These regulations establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits. As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided 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, or something to the effect that the claimant should give us everything you've got pertaining to your claim. VA satisfied this duty by means of letter to the veteran from the RO dated in December 2002, as well as by the discussions in the rating decisions, statement of the case, and multiple supplemental statements of the case (SSOCs). By means of these documents, the veteran was told of the requirements to reopen a previously denied claim, establish service connection, of the reasons for the denial of his claims, of his and VA's respective duties, and he was asked to provide information in his possession relevant to the claims. In addition to providing the VCAA laws and regulations, additional documents of record, to include the rating decisions of record, the SOC and SSOCs have included a summary of the evidence, all other applicable law and regulations, and a discussion of the facts of the case. Such notice sufficiently placed the veteran on notice of what evidence could be obtained by whom and advised him of his responsibilities if he wanted such evidence to be obtained by VA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the claims were initially denied prior to the enactment of VCAA, after passage of the VCAA, the RO sent the veteran a VCAA letter in December 2002 and a SSOC in January 2003, both of which included the VCAA laws and regulations. A VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. However, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. After receipt of the content-complying letter in December 2002, his claim was readjudicated based upon all the evidence of record as evidenced by the SSOCs in January 2003 and June 2005. There is no indication that the disposition of his claim would not have been different had he received pre-AOJ adjudicatory notice pursuant to section 5103(a) and § 3.159(b). Accordingly, any such error is nonprejudicial. See 38 U.S.C. § 7261(b)(2). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2005). The RO obtained the veteran's VA and private outpatient records. There is no indication of any relevant records that the RO failed to obtain. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2005). In this case, the veteran was afforded several VA medical examinations as to the issues on appeal. There is no 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) (while holding that 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, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO, in effect, complied with these procedures. The RO requested information from the service department as to inservice asbestos exposure and information was provided in this regard. Therefore, VA has satisfied its duty to assist the veteran in developing this claim. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent necessary; no further assistance to the appellant in developing the facts pertinent to his claim is required to comply with the duty to assist under both the former law and the new VCAA. 38 U.S.C.A. § 5107(a), 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2005). Service connection The veteran contends that he developed bladder cancer and pneumonia due to an exposure to asbestos while serving the Navy. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2005). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2005). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease such as cancer to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1317; 38 C.F.R. §§ 3.307, 3.309. The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). VA must analyze the veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos- related disease can develop from brief exposure to asbestos. Id. 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 (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 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, 7.21(a)(3). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Service medical records show treatment for respiratory and urinary problems. Specifically, the veteran was treated for pneumonitis in October 1948 and urethritis due to gonococci bacteria in January 1950. Chest X-ray in August 1950 was negative. The veteran's October 1951 separation examination showed normal findings for the lungs and genitourinary system. Post service private records show that the veteran was seen for left flank pain in July 1993. X-ray showed a questionable persistent defect in the right side of the bladder. A November 1994 pathology report shows a final diagnosis of bladder, trigone, biopsy: fragment of bladder mucosa showing urothelial hyperplasia and Brunn's nest with cystic changes. Records from 1996 reflect that he was noted to have a bladder tumor, and it was resected in a March 1996 operation. VA treatment records from 1998 essentially show treatment for other conditions, but it was noted that the veteran's medical history included bladder cancer. Private records dated in 2001 and 2002 show that the veteran was seen for an apparent kidney stone and was treated for heart disease following a myocardial infarction in October 2002. Service personnel records reflect that the veteran served aboard the U.S.S Coolbaugh from 1949 to 1951. In his statements and hearing testimony he alleged that he slept underneath pipes that were covered in asbestos while aboard this ship. Naval Records show the duties of a seaman during the time of the veteran's service included maintaining the ship's compartments, decks, machinery and equipment. The Navy's response to a January 2001 request for records of asbestos exposure reflects that there is no way of determining the extent of asbestos exposure the veteran may have had during his active naval service. However the general specifications for ships during the time he was serving were noted to have required heated surfaces to be covered with insulation and that it was highly probable that such insulation was asbestos. Items to be covered included piping, flanges, valves, fittings, machinery, boilers and heaters. The Navy confirmed that the veteran's occupation was as a seaman. The probability of exposure due to asbestos was minimal, but a positive statement that the veteran was or was not exposed could not be made. Additional records reflect that the veteran's post service employment included work as an electronics technician. As to the 2002 respiratory exam, the typewritten report reflects that the spirometry was suboptimal due to inconsistent patient effort. The test revealed a moderate reduction in the forced vital capacity (FVC) and a normal forced expiratory volume (FEV)1/FVC which suggested a restrictive ventilatory dysfunction was present. Additional pulmonary function testing in May 2002 was interpreted as showing spirometry that was within normal limits. Following administration of a bronchodilator, there was no significant improvement in the FEV1 compared to testing in September 2001. There had been no significant change in FEV1 and FVC. Moreover, the February 2002 respiratory examination included a chest X-ray which noted that there were calcified pleural plaques which might be due to asbestos exposure, but it was further noted that no current respiratory disability could be determined without further testing. A June 2002 follow up indicated that the additional pulmonary exercise testing could not be completed due to the veteran having experienced unspecified dizziness that required testing to stop. Since this incident the veteran is noted to have received treatment for heart disease through November 2002, as shown in the additional records from a private facility. The typewritten report of the 2002 GU exam reflects that the veteran received his genitourinary care elsewhere and no notes indicating his interval care were at the VA. The examiner noted that the veteran gave a history of developing hematuria in 1994 with negative biopsy. In 1996, he was found to have a 5 mm bladder tumor that was resected. He had had no recurrence and urinalysis was negative. The veteran might have passed a stone 3 years ago but he passed it. Current examination was unremarkable and urinalysis was negative. The examiner noted that there were no active GU issues. The major issue was a history of a very small bladder lesion in 1996. The examiner opined that he did not think that this was an asbestos or service-connected problem but added that it was always difficult to make 100 percent definitive conclusions in such instances when asked if something "could have" caused something else. In a later statement, the examiner noted that he had reviewed the veteran's claims file. Further respiratory tests and evaluation were obtained in May 2004. The examiner noted that the claims file was reviewed, and the veteran's medical history was summarized. This included the fact that the veteran had smoked cigarettes in the past but had quit 15 years earlier. The VA examiner assessed that the available evidence, to include chest X-ray, computerized scan (CT) of the chest, and pulmonary function tests, showed pulmonary symptoms which were consistent with COPD which were due to cigarette smoking and coronary artery that was status post angioplasty with resolution of cardiac related symptoms. The examiner noted that asbestos could have a long latent period. However, while exposure to asbestos was present by history, there was no evidence that clinical asbestosis was currently present. As noted above, the veteran alleges that his duties in the Navy caused him to undergo exposure to asbestos; lead-based paint exposure (lead based grinding dust); acetone exposure and other chemicals. He provided copies of photos of the ship that he served on during service. There is no evidence contradicting the veteran's assertions of exposure, and his assertions are potentially consistent with his service duty as a seaman. Based on this evidence, exposure to asbestos during service is plausible. See McGinty, supra. However, the Board finds that the evidence shows that the veteran's currently diagnosed respiratory disorder, COPD, and his bladder cancer were not manifested until more than 40 years after service. Moreover, the preponderance of the competent medical evidence does not demonstrate that these conditions are related to asbestos exposure and/or any other event in service. While the veteran was treated during service for respiratory and urinary problems, no lung or GU residuals were noted in his treatment records, to include at time of service separation. More than 50 years later, he complained of respiratory problems for which COPD has now been diagnosed. Additionally, the record reflects that a small cancerous lesion on the bladder was found in the mid 1990s for which he underwent resection. What the record does not include is any medical evidence of a relationship of these disabilities which were first manifested 40 years after service and any incident of service. The record also includes opinions that currently diagnosed COPD and bladder cancer from 1996 were not the result of exposure to asbestos during service. The Board notes that these conclusions were reached after examination of the veteran and review of the claims file. As there are no competent medical opinions to the contrary, the Board must deny the veteran's claims of service connection for a respiratory disorder and bladder cancer. In so holding, the Board notes that the veteran's personal opinion that his respiratory problems and his bladder cancer are related to event(s) in service including asbestos exposure, while well intentioned, may not be considered as competent to establish the requisite nexus to service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board fails to find any competent evidence that symptoms associated with his COPD or his bladder cancer are of service origin, to include as a result of asbestos exposure. There is no doubt of material fact to be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b) (West 2002). ORDER 1. Entitlement to service connection for pneumonia, to include as secondary to inservice asbestos exposure, is denied. 2. Entitlement to service connection for bladder cancer, to include as secondary to inservice asbestos exposure, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs