Citation Nr: 0631787 Decision Date: 10/13/06 Archive Date: 10/16/06 DOCKET NO. 03-14 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for laryngeal cancer, to include as due to asbestos exposure. WITNESSES AT HEARING ON APPEAL Appellant, wife ATTORNEY FOR THE BOARD W.R. Steyn, Counsel INTRODUCTION The veteran had active military service from February 1939 to September 1945. This appeal arises before the Board of Veterans' Appeals (Board) from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania, which denied the veteran's claim seeking entitlement to service connection for laryngeal cancer, to include as secondary to asbestos exposure. The veteran testified before the undersigned Veterans Law Judge in August 2006. FINDING OF FACT The preponderance of the probative evidence indicates that the veteran's laryngeal cancer is not related to an in- service disease or injury, including asbestos exposure. CONCLUSION OF LAW Laryngeal cancer was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Compliance with the Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), enacted on November 9, 2000, emphasized the VA's obligation to notify claimants of the information or evidence necessary to substantiate a claim, and it affirmed the VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In August 2001, VA issued regulations to implement the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the agency of original jurisdiction (AOJ) issues the initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this instance, the veteran was mailed a VCAA letter in April 2002, prior to the initial adjudication in June 2002. Requirements with respect to the content of a VCAA notice have also been satisfied in this case. Pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), the notice 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 the 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 comes from the language of 38 C.F.R. § 3.159(b)(1). In its April 2002 VCAA letter, the RO&IC informed the veteran about the information and evidence necessary to substantiate his claim of service connection on a direct basis. The veteran was informed that evidence towards substantiating his claim should include: (1) evidence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship between the current disability and any injury or disease during service. The letter also asked the veteran to provide more information about his exposure to asbestos. A letter in June 2003 attached the portion of M21-1 that discussed how to process asbestos claims. The letter described the information and evidence that the VA would seek to provide including relevant medical records held by any federal agency, including VA medical records. The letter also informed the veteran that the RO&IC would obtain private treatment records if the veteran completed a release form. The letter also explained what information and evidence the veteran was expected to supply. Specifically, the letter instructed the veteran to complete a release form indicating where and by whom he was being treated, and to inform the RO&IC if he was being treated at a VA Medical Center. Regarding the fourth element, although the April 2002 letter did not technically inform the veteran to submit any evidence in his possession that pertained to his claim, an April 2005 letter did inform the veteran of that requirement. The veteran was not prejudiced by the timing of said notice, since following that letter, the development of the claim continued, and, in November 2005, the claim was reviewed and the veteran was sent supplemental statements of the case. As a result, the veteran was provided the required notice and he was afforded an opportunity to respond after he was fully informed of the evidence needed to substantiate the claim. Furthermore, the veteran has not contended that he was prejudiced by the timing of the notice contained in the April 2005 VCAA letter. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection in the April 2002 letter. Regarding the type of evidence necessary to establish a disability rating or effective date for the disability on appeal, he was not provided with notice of this type of evidence. Despite the inadequate notice provided to the veteran on these latter two elements, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection, any question as to the appropriate disability rating or effective date to be assigned is rendered moot. The duty to assist the veteran has been satisfied in this case. All available service medical records and service personnel records, as well as private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO&IC and the Board in connection with the veteran's claim. Furthermore, the VA has assisted the veteran and his representative throughout the course of this appeal by providing them with a statement of the case and supplemental statements of the case which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that the VA has fulfilled the duty to assist the appellant in this case. Background Service medical records do not show treatment for throat cancer, or any throat or lung disorders. Service personnel records show that the veteran worked as a steward's mate and mess attendant during his six years in the Navy. They show that the veteran worked aboard the USS Claxton, USS Cabot, and USS Reina Mercedes. At a VA examination in August 1975, the veteran's throat was evaluated as normal. In the veteran's June 2002 notice of disagreement, he claimed that he was exposed to asbestos from pipes in the galley when he worked as a steward mate. In a July 2003 statement, the veteran claimed that he was exposed to asbestos from working in the galley as a messtender and steward. Dr. P.D. wrote a letter in November 2003 in which she wrote that the veteran had been a patient at Hahnemann Hospital since 1993, and was diagnosed with laryngeal cancer in May 2000, and had a complete laryngectomy completed. The records from Hahnemann Hospital are of record. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2006. He testified that his sleeping quarters were above the galley when he was on the US Cumberland, and that there was sheet rock over the galley that was full of asbestos. His wife testified that after the veteran returned from service, he worked for a bus company working with heavy manufacturing and locomotives. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110, 1131. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection may also be granted for disability proximately due to or the result of a service-connected disorder. 38 C.F.R. § 3.310. There are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, VA has provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1MR, Part IV, Subpart II, Chapter 2, Section C, Part 9 (December 13, 2005). These guidelines are the same ones that were previously documented in the Adjudication Procedure Manual M21-1, Part VI, Par. 7.21. The VA General Counsel has held that the M21-1 guidelines established claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4- 2000; 65 Fed. Reg. 33422 (2000). Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1MR, Part IV, Subpart II, Chapter 2, Section C, Part 9 (December 13, 2005). This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease 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. Veterans Benefits Administration Manual M21-1MR, Part IV, Subpart II, Chapter 2, Section C, Part 9 (December 13, 2005). The service medical records do not show treatment for any throat or respiratory disorders. The veteran's respiratory system was deemed normal at separation in September 1945. The first post-service evidence of laryngeal cancer is not until May 2000, more than 50 years after service. Thus, unless the evidence shows that the veteran was exposed to asbestos during service, based on the lack of treatment for any throat or respiratory disorders in service, his claim must be denied. As to the issue of whether the veteran's laryngeal cancer is due to exposure to asbestos in service, the veteran claims to have been exposed to asbestos when he served aboard ships during his six years in the Navy. However, the veteran's occupations during service (steward's mate and mess attendant) are not the types of occupations where exposure to asbestos is automatically conceded. The M21-1MR guidelines, while neither statutory nor regulatory in nature, list major occupations involving exposure to asbestos including insulation work, mining, milling, and work in shipyards. While the list is not exclusive, nevertheless, it provides no basis for concluding that the veteran's duties in service, as described by him at his August 2006 hearing and statements in June 2002 and July 2003 exposed him to asbestos. The Board finds, therefore, that the preponderance of the evidence indicates that the veteran was not exposed to asbestos while in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd 287 F.3d 1377 (Fed. Cir. 2002) (the Manual M21-1 procedures for developing asbestos-related claims do not create a presumption of asbestos exposure for Navy veterans--exposure must be established by the evidence). It is determined that the claims file contains sufficient medical evidence to make a decision on the veteran's claims without a VA examination. As the evidence does not show that the veteran was exposed to asbestos in service, or treated for any throat or respiratory disorders during service, VA does not have an obligation to secure a medical opinion under 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4)(A). See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Although the veteran claims that his laryngeal cancer is due to asbestos exposure in service, he is not a medical professional who can make such a determination. The veteran is competent to describe symptoms he had during service, but as a lay person, he is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). This case turns on the question of whether the veteran was exposed to asbestos in service, and the Board has already determined that the veteran was not. As the preponderance of the evidence is against the veteran's claim, the benefit- of-the-doubt rule does not apply, and the veteran's claim of service connection for a laryngeal cancer, to include as due to asbestos exposure, must be denied. 38 U.S.C.A §5107. ORDER Entitlement to service connection for laryngeal cancer, to include as secondary to asbestos exposure, is denied. ____________________________________________ NANCY R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs