Citation Nr: 0712784 Decision Date: 04/30/07 Archive Date: 05/08/07 DOCKET NO. 04-09 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of colon cancer including colectomy and permanent colostomy, claimed as secondary to asbestos exposure. ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The veteran had active service, reportedly from January 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA). The case was most recently before the Board in March 2006 when it was remanded for additional development. FINDING OF FACT The veteran's colon cancer was not manifested during the veteran's active duty service or for many years thereafter, nor is colon cancer otherwise related to the veteran's active duty service, including exposure to asbestos. CONCLUSION OF LAW Colon cancer was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This 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 VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the regulations is to 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, or who attempts to reopen a previously denied claim. After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. The veteran signed a statement certifying receipt of such notice with the submission of his May 2003 application for compensation. Materials provided to the veteran in May 2003, and a June 2003 letter, informed the claimant of the information and evidence necessary to warrant entitlement to the benefit sought. Moreover, in the May 2003 materials and the June 2003 letter, the veteran was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board notes that the May 2003 materials and the June 2003 letters were delivered to the appellant prior to the July 2003 rating decision. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet.App. 112 (2004). The Board also notes that the May 2003 materials and the June 2003 letters implicitly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised of the need to produce evidence in support of his claim, that it was the appellant's responsibility to make sure that such evidence was received by the RO, and that the veteran needed to inform the RO about any medical evidence not yet submitted. The Board believes that a reasonable inference from such communication was that the appellant must furnish any pertinent evidence that the appellant may have. Therefore, the requirements of 38 C.F.R. § 3.159(b)(1) have effectively been met. Moreover, the veteran signed a statement, which was received at the RO in March 2004, indicating that he had no further evidence to submit. The Board further notes that additional VCAA letters, dated December 2003 and August 2006, were sent to the veteran after the initial RO rating decision but prior to the most recent RO readjudication of the case associated with the December 2006 supplemental statement of the case. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, on March 3, 2006, the 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. Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate his claim by showing the nature and history of the claimed disability. Additionally, there has been timely notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted. The RO did furnish the appellant with the timely May 2003 and June 2003 VCAA letters notifying him to submit evidence detailing the nature and history of the claimed disability. The RO also furnished the appellant with a letter in August 2006 which directly explained how VA determines disability ratings and effective dates. All of these notices were provided to the appellant prior to the most recent RO readjudication of this case and issuance of a supplemental statement of the case in December 2006. To the extent that such notice may be viewed as deficient for any reason, since the Board concludes below that the preponderance of the evidence is against the claim of service connection for residuals of colon cancer, no rating or effective date will be assigned; any questions of notice related to such assignments are rendered moot. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records, in service, private, and VA, have been obtained and the veteran has been afforded a VA examination. See generally 38 C.F.R. § 3.159(c)(4). The Board acknowledges that some guidelines for compensation claims based on asbestos exposure are provided by Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1MR (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005) (rescinding the previously applicable VBA Adjudication Procedure Manual M21-1, Part VI, para. 7.21). In accordance with the prior Board remand's reference to these guidelines, the RO attempted to further develop the evidence of record with regard to the veteran's possible exposure to asbestos. The record remains inconclusive with regard to the question of asbestos exposure; however, the Board declines to remand this case for even more exploration of the question. The record, especially in light of the recently added October 2006 VA examination report, contains adequate evidence to resolve this appeal even accepting, for the sake of the veteran's argument, that he was exposed to asbestos during service and never exposed to asbestos outside of service. In other words, because the competent evidence of record indicates that the claimed disability is not a pathology known to be related to asbestos exposure in general nor in the veteran's specific case, there would be no benefit to the veteran to further delay appellate review to further explore the question of his exposure to asbestos in service. The Board's analysis below assumes, for the purposes of this appeal only, that the veteran was likely exposed to asbestos during service just as the veteran contends. No additional pertinent evidence has been identified by the claimant as relevant to the issue on appeal. Under these circumstances, no further action is necessary to assist the claimant with this claim. Analysis The issue on appeal involves a claim of service connection. 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 the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as colon cancer, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). The Board acknowledges that the veteran contends he developed colon cancer resulting from asbestos exposure during his service. In McGinty v Brown, 4 Vet.App. 428 (1993), the Court, noting the absence of specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, observed that some guidelines for compensation claims based on asbestos exposure were published in DVB Circular 21-88-8, dated May 11, 1998. The DVB Circular was subsequently rescinded, and its basic guidelines are now incorporated in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3; see also Ennis v. Brown, 4 Vet.App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolarygneal, gastrointestinal, and urogenital cancer, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, that an asbestos- related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b), p. 7- IV-3 (January 31, 1997). More recently the Court has held that "neither Manual M21-1 nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure to asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet.App. 141 (1999); see also Nolen v. West, 12 Vet.App. 347 (1999); VAOGCPREC 4- 2000. As a preliminary matter, it must be shown that the veteran was exposed to asbestos during active duty service. The Board notes the RO's finding, in the July 2003 rating decision and the March 2004 statement of the case, that the veteran was probably exposed to asbestos during his active duty service. After additional development was attempted following the March 2006 Board remand, the RO's December 2006 supplemental statement of the case included a finding that service records were negative for any evidence of asbestos exposure. In any event, the Board finds that even assuming, for the sake of the veteran's argument, that he was exposed to asbestos during service, the preponderance of the evidence is against entitlement to service connection for residuals of colon cancer in this case. The Board finds that service connection must be denied for residuals of colon cancer, including as secondary to exposure to asbestos. While the record clearly reflects that the veteran has suffered from the claimed disability, there is no competent medical evidence to demonstrate a link between the veteran's colon cancer and his service. The record reflects that the veteran's colon cancer was detected in October 2001 and that prior to that time the veteran had not been diagnosed with or treated for the disease. There is evidence that the veteran experienced symptoms of a rectal disorder prior to this diagnosis; however, in an October 2001 consultation report a treating physician notes that the veteran received a proctoscopic examination 'about 15 years ago' which apparently did not yield any indication of colon cancer at that time. More significantly, there is no evidence of any complaints or treatment for any colon or gastrointestinal disorders in the veteran's service medical records. A February 1968 separation examination report shows all pertinent findings to be clinically normal. Moreover, the veteran has not made any statement contending that he experienced symptoms related to colon cancer during service. There is also no suggestion in the record of colon cancer manifestation within one year of the veteran's discharge. The Board recognizes that, for disabilities involving a veteran's exposure to asbestos, even the passage of over 30 years without manifestation of a disability may not be fatal to a claim of service connection. Nevertheless, service connection may not be granted unless there is some competent medical evidence indicating that the veteran's disability is indeed causally linked to the veteran's exposure to asbestos. To fully pursue avenues of development which may support the veteran's claim, the Board's March 2006 remand directed that the veteran be afforded a VA medical examination with an etiology opinion addressing the possibility that the veteran's colon cancer was caused by his service. The resulting October 2006 VA examination report, however, does not support the veteran's claim. The examining specialist specifically concluded that, "colon cancer is linked to many etiologies .... There were no specific studies that linked asbestos exposure specifically to an increased risk of colon cancer." Moreover, the examiner explained, "the patient has other risk factors for colon cancer such as a long history of smoking. Therefore it is my opinion that it is not at least as likely as not that patient's time in the military was related to his development of colon cancer." This October 2006 VA examination report must be accorded significant probative value as the report presents an expert's conclusions with a discussed rationale following a review of pertinent medical studies, a physical examination and interview of the veteran, and review of the claims folder with the veteran's specific medical history. With regard to the review of the claims folder, the Board notes that the examiner did not review the claims folder until after the initial drafting of the examination report, but the examiner submitted a statement certifying that she maintained the conclusions presented in the examination report even after having the opportunity to review the claims folder. Significantly, the rationale and analysis discussed in the examiner's report indicates that, even assuming that the veteran was exposed to asbestos during service, there is no medical basis for concluding that the colon cancer was at least as likely as not causally related to service; the report cites the expert's inability to find any studies linking asbestos exposure to an increased risk of colon cancer, and the report cites predominant risk factors including the veteran's history of smoking. The Board acknowledges the veteran's own contention that his colon cancer is connected to his exposure to asbestos during his time in service. However, while the veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or etiology. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The Board must rely upon the conclusions of trained medical personnel when considering evidence of diagnosis and etiology. The record reflects that none of the medical professionals who have performed treatment and consultation regarding the veteran's colon cancer has provided any opinion suggesting any link between the veteran's exposure to asbestos and his colon cancer. The October 2006 VA examination report which specifically addresses the probability of such a link, indicates that there is no currently known medical basis upon which to conclude that such a link is probable. Therefore, there is no competent evidence of such a link. In a July 2004 statement and the March 2004 substantive appeal, the veteran contends that one particular physician who has contributed to the record has a personal conflict with the veteran and, thus, the veteran believes that physician's analysis to be a biased mischaracterization. The Board finds no evidence in the record that this physician's reports are inconsistent with the information provided by other physicians nor does the Board find the physician's reports shape the record with any unique and material opinions that weigh against the veteran's claim. In other words, even without this physician's reports the record would lack competent medical evidence of a causal link between service and colon cancer. While this physician's reports do not express the possibility of a link between the veteran's exposure to asbestos and his colon cancer, no such link is suggested by any other report from any of the other medical professionals involved in treating the veteran's disability. Thus, the Board finds no reason to believe that any evidence has been omitted or misrepresented in the medical reports of record which might otherwise support the veteran's claim for service connection. In conclusion, the October 2006 VA examination report weighs heavily against the claim and is uncontradicted by any competent medical evidence of record. Since there is no competent evidence of colon cancer during service, no competent evidence of the disease within one year of discharge from service, nor any competent evidence otherwise suggesting a link between the veteran's colon cancer and service, to include exposure to asbestos, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection for residuals of colon cancer. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). ORDER Entitlement for service connection for residuals of colon cancer is not warranted. Thus, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs