Citation Nr: 0705734 Decision Date: 02/28/07 Archive Date: 03/05/07 DOCKET NO. 06-15 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for colon cancer, claimed to be a residual of asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran served on active duty in the United States Navy from May 1944 to February 1946. Procedural history This appeal arose from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional office in St. Louis, Missouri (the RO) which denied service connection for several claimed disabilities, including bilateral hearing loss, tinnitus, and residuals of asbestos exposure. A motion to advance this case on the docket due to the veteran's age and his severe health problems was granted by a Deputy Vice Chairman of the Board on February 20, 2007. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2006). Clarification of issue on appeal As was noted above, the RO characterized the third issue on appeal as entitlement to service connection for residuals of asbestos exposure. It is clear from communications from the veteran and his representative that the only claimed residual of asbestos exposure is colon cancer. In addition, the veteran at times appears to have raised an alternative theory of entitlement to service connection for colon cancer, namely exposure to ionizing radiation. However, in a May 2006 communication to the RO, the veteran's accredited representative made it clear that the veteran's only theory of entitlement Was based on exposure to asbestos. Accordingly, the third issue on appeal has been recharacterized as entitlement to service connection for colon cancer, claimed to be a residual of asbestos exposure. Issues not on appeal The April 2005 RO rating decision denied service connection for several other claimed disabilities. Although the veteran was not initially clear as to which issues he wished to pursue on appeal, subsequent communications from his representative have established that only the three issues listed above are on appeal. FINDINGS OF FACT 1. There is no competent medical evidence that bilateral hearing loss and/or tinnitus currently exist. 2. There is competent medical evidence that colon cancer currently exists. 3. A preponderance of the evidence is against the proposition that the veteran was exposed to asbestos during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by naval service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.655 (2006). 2. Tinnitus was not incurred in or aggravated by naval service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.655 (2006). 3. Colon cancer was not incurred in or aggravated by naval service, and may not be so presumed. 38 U.S.C.A. § 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus, which he contends were caused by noise exposure during service. He also seeks service connection for colon cancer. He contends that his currently diagnosed colon cancer was caused by exposure to asbestos aboard naval vessels during World War II. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Although all of the evidence in the claims file may not be specifically cited in the Board's decision, the Board has reviewed and considered all of the evidence in the claims file in reaching its conclusions. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 119- 120 (2004). Here, the veteran was sent VCAA notice in the form of letters dated in February 2005 (before the claim was initially denied in April 2005) and in November 2005 and March 2006. For the reasons detailed below, the Board finds that, through these letters, the veteran has been amply informed of what is required of him and of VA. First, VA must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). Here, the February 2005 VCAA letter stated that in order for service connection to be granted, the evidence must show: (1) injury or disease in service; (2) current disability; and (3) a relationship between (1) and (2). See the February 4, 2005 VCAA letter, page 8. The November 2005 letter contained identical language. See the November 3, 2005 VCAA letter, page 6. Second, VA must inform the claimant of the information and evidence VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). Both VCAA letters informed the veteran that VA would obtain evidence kept by the VA and any other federal government agency, such as the Social Security Administration. The veteran was also informed that VA would provide a medical examination if necessary. Third, VA must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005). In this regard, the March 2005 VCAA letter advised the veteran that although VA would make reasonable efforts to obtain records not held by a federal agency, such as private medical records and employment records, "It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original February 4, 2005 VCAA letter, page 7]. Finally, VA must request that the claimant provide any evidence in his or her possession pertaining to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). In this case, the November 2005 letter informed the veteran: "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." See the November 3, 2005 VCAA letter, page 3. This request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. The Board is cognizant of the holding of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), in which the Court observed that a claim of entitlement to service connection consists of five elements: (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 disability. Section 5103(a) and section 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. In this case, element (1), veteran status, is not in dispute. As has been discussed above, the veteran received ample notice as to element (2) and (3) existence of a disability and a connection between service and the claimed disability, in the two 2005 VCAA letters. Additionally, in March 2006 the veteran was sent a letter which specifically referenced Dingess/Hartman v. Nicholson. That letter dealt with elements (4) and (5), degree of disability and effective date. See the March 20, 2006 VCAA letter. In any event, because service connection is being denied, matters pertaining to degree of disability and effective date are moot. In short, the veteran has been amply informed of what is required of him and of VA under the VCAA, including notification under Dingess. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The Board finds that all relevant evidence necessary for an equitable resolution of these issues has been identified and obtained, to the extent possible. The evidence of record includes service medical records and VA and private medical records. As will be discussed in greater detail below, the veteran failed to report for a VA audiology examination in June 2006 which had been scheduled for the purpose of determining whether bilateral hearing loss and tinnitus existed and if so their relationship to the veteran's naval service. The veteran failed to report for the examination, presumably due to his age and failing health, which is well documented. It appears from the medical records that scheduling another examination would be fruitless. With respect to the colon cancer issue, the veteran's representative has suggested that this case be remanded for a medical opinion as to whether that disability is related to the claimed asbestos exposure in service. See a December 2006 informal hearing presentation, page 2. As explained in greater detail below, the outcome of this claim hinges on what occurred, or more precisely what did not occur, during service. In the absence of evidence of in- service disease or injury, referral of this case for an opinion as to etiology would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the veteran's colon cancer and his military service would necessarily be based solely on the veteran's uncorroborated assertions regarding asbestos exposure in service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. Obtaining a medical nexus opinion under the circumstances presented in this case would be a useless exercise. In the absence of credible supporting evidence of in-service asbestos exposure, there is no need for a medical nexus opinion. The Board points out that the facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no credible supporting evidence of in-service asbestos exposure. Under the circumstances presented in this case, a remand ordering a medical examination or a medical opinion would serve no useful purpose. Accordingly, the Board has determined that a medical examination and opinion are not necessary as to this issue. The Board additionally observes that general due process concerns have been satisfied in this case. The veteran has been accorded appropriate opportunity to present evidence and argument in support of his claim, and he has been ably represented by his service organization. See 38 C.F.R. § 3.103 (2006). The veteran indicated in his March 2006 substantive appeal (VA Form 9) that he did not desire a personal hearing. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this claim has been consistent with the provisions of the VCAA. Accordingly, the Board will proceed to a decision on the merits. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Because these to issues involve the application of similar law to identical facts, the Board will address them together. Relevant law and regulations In general, applicable law and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). It is now well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) [service connection may not be granted unless a current disability exists]. A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Analysis The RO denied the veteran's claim because the record contained no competent medical evidence of either hearing loss or tinnitus. The Board has carefully reviewed the record, which in pertinent part consists of recent VA outpatient treatment records generally pertaining to his colon cancer, and similarly can identify no medical evidence of either claimed disorder. As was described in the Board's VCAA discussion above, the veteran has been at least twice accorded the opportunity of submitting evidence showing diagnoses of hearing loss and tinnitus. No such evidence has been received. In addition, the veteran failed to report for a June 2006 VA audiology examination which was scheduled to establish the existence of the claimed disabilities. The Board is cognizant of the fact that the veteran is elderly and in poor health. However, this does not relieve him of the obligation of supporting his claim. See 38 U.S.C.A. § 5107(a) (West 2002). Under the circumstances here presented, the Board has no choice but to render a decision based on the evidence now of record. See 38 C.F.R. § 3.655 (2006). That evidence does not indicate that bilateral hearing loss or tinnitus have been diagnosed. To the extent that the veteran himself contends that he currently has the claimed disabilities, it is now well- settled that as a lay person without medical training he is not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2006) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. In the absence of the claimed disability, service connection may not be granted. See Brammer, supra; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. The benefits sought on appeal are accordingly denied. 3. Entitlement to service connection for colon cancer, claimed to be a residual of asbestos exposure. Relevant law and regulations The law and regulations generally pertaining to service connection have been set out above and will not be repeated. For certain chronic disorders, including cancer, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,1131, (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2006). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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. See 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). See Department of Veterans Affairs, Veterans 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 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. See M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The Board initially observes that there is ample medical evidence that colon cancer currently exists. Hickson element (1), current disability, is accordingly satisfied. With respect to Hickson element (2), in-service disease or injury, the Board will separately discuss disease and injury. There is no evidence of colon cancer in service or for many decades thereafter. Cf. 38 C.F.R. §§ 3.307, 3.309 [cancer is presumed to have existed in service if it was manifested to a compensable degree with one year after separation from service]. The veteran in essence contends that element (2) is satisfied via an in-service injury, specifically exposure to asbestos. The reason for the RO's denial of the veteran's claim was succinctly stated in the January 2006 statement of the case: "There is no documentation of record supporting your exposure to asbestos during military service. . . . . Although colon cancer can be a condition associated with asbestos exposure, the evidence of record does not support that you were exposed to asbestos during your military service." The veteran's service medical and personnel records do not indicate, or even suggest, that the veteran was exposed to asbestos in service. The service medical records are pertinently negative. The service personnel records indicate that he was assigned to one or more Carrier Aircraft Service Units (CASU), although there is no evidence that he actually served aboard an aircraft carrier. The veteran did, however, serve in the Pacific Theater of Operations, and it appears that he was transported aboard naval vessels and/or civilian vessels under contract. The Board has no reason to doubt that he was aboard ships during his military service. There is no evidence, however, that the veteran served in engine rooms or was engaged in any activity which would have brought him into contact with asbestos, such as pipe fitter. His rating was storekeeper, and he was detailed as a cook from July 1945 to September 1945. The veteran's accredited representative has contended that "during World War II, all ships were loaded with asbestos, including the pipes being wrapped in asbestos. Asbestos exposure should be conceded to this veteran." The Board declines to do so. There is no presumption of asbestos exposure due to service aboard naval vessels during World War II. See Dyment v. West, 13 Vet. App. 141, 145 (1999). The Board agrees with the RO that there is no objective evidence of asbestos exposure in service. In particular, there is no evidence that the veteran served in an engine room, as a steamfitter, or in any military occupation in which exposure to asbestos was likely. The veteran himself has not been clear as to how he came to be exposed to asbestos. In essence, he contends, as does his representative, that his mere presence aboard ship constituted exposure to asbestos. As discussed above, no presumption of asbestos exposure is created thereby. In addition, there is no post-service medical evidence, such as x-rays or other laboratory findings, which indicates that the veteran was ever exposed to asbestos. In summary, for reasons stated above the Board concludes that element (2), in-service disease or injury, has not been met. The claim fails on that basis. For reasons and bases expressed above, the Board finds that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for colon cancer, claimed to be due to in-service asbestos exposure. The benefits sought on appeal are accordingly denied. Additional comment As was noted in the Introduction, the veteran at one point alternatively contended that his colon cancer was due to radiation exposure. However, he later withdrew that contention. A review of the record does not indicate any exposure to ionizing radiation in service. The veteran has not proffered any other theory of entitlement to service connection for colon cancer, and none is evident in the record. See Douglas v. Derwinski, 2 Vet. App. 103, 109 (1992) [VA is obligated to consider all issues reasonably inferred from the evidence of record]. The veteran is of course free to reopen his claim in the future, applying whatever theory he desires. He is advised, however, that he will have to submit new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); see also Ashford v. Brown, 10 Vet. App. 120, 123 (1997) [a different etiological theory underlying a claimed disorder does not constitute a new claim]. The Board intimates no opinion, legal or factual, as to the ultimate outcome of any future claim. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for colon cancer is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs