Citation Nr: 0731629 Decision Date: 10/05/07 Archive Date: 10/16/07 DOCKET NO. 04-02 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for colon cancer, due to asbestos exposure. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), due to asbestos exposure. 3. Entitlement to service connection for lumbar strain with degenerative changes and degenerative disc disease (DDD). 4. Entitlement to service connection for degenerative joint disease (DJD) of the knees. 5. Entitlement to service connection for DJD of the ankles. 6. Entitlement to service connection for DJD of the right shoulder. 7. Entitlement to service connection for depression, as secondary to service-connected disabilities. 8. Entitlement to service connection for sleep apnea, claimed as secondary to service connected disabilities. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from April 1960 to March 1962. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board remanded this case in June 2005 for additional evidentiary development. In November 2004, the veteran appeared at a videoconference before a Veterans Law Judge (VLJ), who has since retired from the Board. In November 2006, the Board contacted the veteran to afford him the opportunity for another hearing or videoconference conducted by a Veterans Law Judge who will decide his appeal. Because he indicated that he wanted another hearing, the case was remanded in February 2007 for that purpose. Another videoconference was conducted in May 2007 by the undersigned Acting VLJ. Transcripts of these hearings are of record. FINDINGS OF FACT 1. Colon cancer was first manifested many years after service and is not shown by competent medical evidence to be related to service, including inservice exposure to asbestos. 2. COPD was first manifested many years after service and a preponderance of the evidence is against a finding that it is related to service, including inservice exposure to asbestos. 3. A lumbar disorder was not manifested in service; lumbar arthritis was not manifested in the first postservice year; and it is not shown to be related to service or lead based paint exposure therein. 4. A chronic left knee disorder or a right knee disorder was not manifested in service; arthritis of either knee was not manifested in the first postservice year; and arthritis of either knee is not shown to be related to service or lead based paint exposure therein. 5. Disorders of the ankles or right shoulder were not manifested in service; ankle or shoulder arthritis was not manifested in the first postservice year; and they are not shown to be related to service or lead based paint exposure therein. 6. Neither sleep apnea nor depression was manifested in service; they are not shown to be related to service; and they are not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. Service connection for colon cancer is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Service connection for COPD is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2007). 3. Service connection for lumbar strain with degenerative changes and DDD is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 4. Service connection for DJD of the knees is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 5. Service connection for DJD of the ankles is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 6. Service connection for DJD of the right shoulder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 7. Service connection for depression is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310 (2007). 8. Service connection for sleep apnea is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and to assist claimants in substantiating VA claims. See 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a) VA must notify a claimant of the information and evidence needed to substantiate a claim, which information and evidence VA will obtain, and which the claimant must provide. VA must request any evidence in a claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159. But, VA is not required to provide a predecisional adjudication of what evidence is needed to grant a claim because "the duty to notify deals with evidence gathering, not analysis of already gathered evidence" nor is VA required to provide notice "upon receipt of every piece of evidence or information." Locklear v. Nicholson, 20 Vet. App. 410, 415 (2006). In service connection claims, the notice must also state what is needed to substantiate all five elements of a service connection claim, which are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A review of the record shows the veteran was provided with pre-adjudication VCAA notice by letter, dated in October 2002. The veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. He was also informed that evidence of inservice asbestos exposure was needed and he was informed of the types of such evidence he could submit. The veteran was also notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. Here, the VCAA notice did not cite the law and regulations governing effective dates or rating service-connected disorders. If a service connection claim is denied, the rating and effective date matters are moot but if granted this matter would be initially addressed by the RO. Also, after VCAA notice is given as to an original service connection claim, further VCAA notice of "downstream" issues, e.g., an initial rating or effective date, is not required. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Because the claims for service connection are denied, there is no possibility that downstream rating or effective date issues will be raised. So, there is no prejudice to the veteran in this regard. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, --- F.3d ----, 2007 WL 1016989 (C.A. Fed. 2007). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of these claims. The RO has obtained the veteran's service medical records (SMRs) and VA treatment records. The veteran has submitted private medical treatment records. He has not identified any additionally available evidence for consideration in his appeal. The veteran was afforded the opportunity to testify at a videoconference in November 2004 and again before the undersigned Acting VLJ in May 2007. Also on file are medical records used in his award of Social Security Administration disability benefits. VA arranged for the veteran to be examined. Opinions were not sought for sleep apnea and depression because service connection for these disorders was claimed as secondary to other disabilities that are not service connected. As there is no indication that the veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Specifically, at the most recent videoconference the veteran did not indicate that there was additional evidence which was not on file except that he felt that the SMRs were incomplete (a matter to be addressed later in this decision). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. §§ 3.303, 3.304. For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Service connection may be granted, as well, for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Godfrey v. Brown, 7 Vet. App. 398, 406 (1995). Certain conditions, such as cancer and arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection requires that there 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 inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of an already service-connected condition. 38 C.F.R. § 3.310(a) (2006). Service connection will be granted for aggravation of a non-service-connected condition that is proximately due to or the result of an already service-connected disability, however, compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, a new regulation, 38 C.F.R. § 3.310(b), was created embodying the principles of secondary aggravation as announced in Allen, Id. See 71 Fed. Reg. 52744, 52746 (September 7, 2006). Asbestos As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for colon cancer or a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 04-2000 (April 13, 2000), it was held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2004). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Contentions At the November 2004 and May 2007 videoconferences the veteran testified that he had worked on World War II vintage submarines for two years performing chipping and grinding on surfaces that were covered by asbestos and by lead-based pain. He testified that he had not had such postservice exposure and that he felt that the asbestos exposure had caused his colon cancer, for which part of his colon was surgically removed in the early 1990s, and his COPD. He testified that he had had back pain since lifting heavy objects during service and that felt that his inservice exposure to lead, possibly together with minor injuries from inservice vigorous activities, had cause his pain in the knees, ankles, and right shoulder even though these pains had not manifested until after his colon surgery. He further testified that he felt that his sleep apnea and depression were caused by the other disorders for which service connection is now claimed. Factual Background The veteran's service personnel records document that for a portion of his career the veteran was in the U.S. Navy submarine service. His military occupational specialty was magazine keeper (explosive). No pertinent abnormalities were noted on service enlistment examinations. In a December 1958 medical history report, the veteran indicated that he had had right knee locking symptoms in the past with no recurrence in the past two years. An April 1960 medical history report indicated no knee problems. In December 1961, the veteran was treated for left knee abrasion. In March 1962, he reported that he had a 2 to 3 month history of left knee discomfort after having hit the left patella. On examination there was an old bruise over the tibial tubercles, which was not particularly tender. There was definite thickening of the infrapatellar bursa or fat pad. The area was injected with analgesic medication. X-rays were normal. On March 1963 service discharge examination, there were no pertinent complaints findings, or diagnoses. No abnormalities were noted on evaluation. On file are numerous private clinical records which show, in part, that in November 1990 the veteran had a low anterior resection of the rectosigmoid with primary anastomosis. Adenocarcinoma was discovered and diagnosed after a colonoscopy was performed following a positive hemoccult stool. Also in November 1990 was a chest x-ray that revealed some COPD and other chronic changes. March 1992 private right knee x-rays revealed findings consistent with soft tissue inflammation. September to December 1992 records indicate the veteran was having an altered breathing pattern while sleeping, which was suspicious for obstructive sleep apnea, and depression, which had been addressed one year earlier. December 1992 x-rays revealed disc space narrowing at L1-2 and L5-S1. A January 1995 private clinical record from Dr. J. W., an internist, indicates that the veteran wished to participate in an asbestos lawsuit settlement. The physician stated that the veteran qualified on the basis of adenocarcinoma of the colon in 1990. PFTs and chest x-rays were to be checked to see if he qualified for asbestos lung disease. The record noted "work in construction, also in Navy, significant exposure to asbestos, as well as construction site dusts." February 1995 private pulmonary function tests (PFTs) indicated COPD, and a reference was made to asbestos exposure litigation. A March 1995 record noted that the veteran had a history of back problems dating back to age 30 or so when he had a work injury with a crushed disc that caused his right leg to go dead, although this resolved after he saw a chiropractor. The diagnosis was a probable sacroiliac strain. In a March 1995 statement, Dr. J. W. stated that the veteran "qualifies for asbestos-related disease on the basis of adenocarcinoma of the colon." December 1998 private knee x-rays revealed mild degenerative changes, bilaterally. In August 1999 sleep apnea was noted as was a recent back injury. A December 1999 summary indicated that there were objective findings of musculoskeletal problems in the back and knees. While the veteran complained of shoulder pain, there was no objective evidence of degenerative changes. Nothing was found or reported regarding the veteran's ankles. October 2000 to July 2002 medical records continued to reflect diagnoses of obstructive sleep apnea, bilateral osteoarthritis of the knees, depression, and COPD. July 2002 x-rays revealed findings consistent with pneumonia with superimposed parenchymal hemorrhage and emphysema; there was no evidence of pleural effusion. On January 2003 VA pulmonary examination, the veteran's claims file was reviewed. The veteran reported hat he was exposed to asbestos doing repairs on submarines without masks or protective gear but he also likely had some asbestos exposure in his postservice employment in heavy construction which included new construction and renovation, especially in hospitals where asbestos was known to be found. The examiner outlined the pertinent records, and noted the veteran's history which included a 35 year history of smoking, colon cancer, COPD, osteoarthritis of the knees, chronic joint pain treated with chronic opiate analgesics, depression, and obstructive sleep apnea. He noted that a July 2002 chest x- ray had led to a diagnosis of left lingular pneumonia and hyperinflation, for which he was treated with antibiotics. A July 2002 CT scan revealed bi-apical emphysema and dense lingular consolidation. On these chest x-rays and the CT scan there was no mention of pleural plaques or other changes that might be due to asbestosis. After a physical examination, the diagnosis was that the veteran had COPD that was likely due to smoking. An addendum noted that findings on pulmonary function testing were likely due to smoking related lung disease. On January 2003 VA psychiatric examination, the veteran's claims file was reviewed. He reported that he was depressed due to a number of physical conditions. He added that depression had been a problem for him since 1994, following his treatment for cancer. The diagnosis was chronic major depressive disorder. The opinion was that his depressive state appeared to be related to his physical conditions, including his cancer. On January 2003 VA orthopedic examination, the veteran complained of pain in right shoulder, knees, ankles, and low back. After a physical examination the diagnoses were chronic low back strain with x-ray evidence of lumbar degenerative changes, right shoulder rotator cuff tendonitis with no x-ray evidence of osteoarthritis, osteoarthritis of the right knee, and chronic ankle sprains without x-ray evidence of arthritis. The examiner noted that the veteran had multiple complaints throughout his lumbar spine and right shoulder as well as both knees and ankles and it was believed that all of these were related to degeneration, over time, and chronic strains and sprains, and they would limit range of motion collectively and cause chronic pain. On April 2004 VA gastrointestinal examination, the veteran's claims file was reviewed. The veteran's history of a positive hemocult stool in 1990 was noted as well as his subsequent diagnosis of adenocarcinoma and sigmoid colectomy with a primary re-anastomosis. Annual follow-up colonscopies had found no recurrence of the cancer. In reviewing the veteran's risk factors for colon cancer, the examiner noted that the veteran's family history were negative for colon cancer or polyposis-type syndromes. He had no history of inflammatory bowel disease. He had a history of tobacco use, smoking about one pack of cigarettes a day for over 35 years, quitting in 1990. Other risk factors for colon cancer were negative. After a physical examination it was noted that the veteran was found to have risk factors of colon polyps, which were tobacco use, and possibly alcohol use. The examiner opined that the veteran's colon cancer was less likely than not related to asbestos exposure in the military. His main risk factor for colon cancer was colonic polyps with other risk factors of tobacco use and possibly alcohol use. At the November 2004 videoconference hearing, the veteran's representative asserted that the veteran had served on a World War II vintage submarine from 1960 to 1962 and that the ship had much asbestos onboard. He had participated in chipping and grinding of structures and equipment without a mask thereby exposing him to asbestos and lead-based paint. The veteran felt that this exposure had caused his colon cancer, COPD, and DJD of multiple joints, lifting heavy objects had cause a back strain, and that his depression and sleep apnea were secondary to these claimed disabilities [page 3]. He testified that after service he had worked in warehousing and as a commercial sea diver and in construction [page 9]. Service medical records of a 10 day period of hospitalization in Long Island during which he was given extensive testing because he had applied for programs that could lead to a service career were not on file [pages 3, 15]. At the May 2007 videoconference hearing, the veteran testified that his own research revealed that it took 10 to 40 years for disability due to asbestos exposure to manifest. Similarly, his research found that symptoms of lead exposure took years to manifest [page 4]. No one had proposed a more likely cause than lead-based paint exposure as the cause of his multiple joint pain and arthritis. He had done a lot of lifting, vigorous activities, and walking on concrete during service which might have combined with his lead-based paint exposure to cause his multiple joint pain and arthritis [page 5]. As to this, over the years treating physicians had not confirmed his belief, which he related to them, that activities and lead-based paint exposure caused his multiple joint pain and arthritis [page 8]. His only exposure to asbestos was during military service [pages 8, 9]. He felt that his depression and sleep apnea were secondary to the other claimed disabilities [page 10]. Sleep tests had yielded a diagnosis of sleep apnea [pages 11, 12]. He had had back pain from lifting weights throughout his life [page 12]. Other than back pain, the pain in his other joints had not manifested until after his colon surgery in 1991 [pages 8 and 12]. No physician had ever said that the veteran's COPD was due to anything other than smoking tobacco [pages 12, 13]. At the videoconference, the veteran submitted additional evidence, together with a waiver of initial consideration of that evidence by the RO. The material consists of the veteran's explanation of the circumstances of his military service, including vigorous activity and exposure to asbestos and lead-based paint. Also submitted was information obtained from the Internet. Service Medical Records Here, it is alleged that the veteran's SMRs are incomplete because records of a period of hospitalization for unspecified tests, in conjunction with a possible career change, are not on file. If that is the case, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, it does not lower threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive- negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of some of the SMRs does not create an adverse-presumption against VA. Cromer v. Nicholson, 19 Vet. App. 215 ( 2005). Here, the SMRS do appear to be complete. More to the point, the veteran has never testified or alleged that the records of any period of hospitalization in Long Island reveal the existence of any of the claimed disorders or symptoms thereof. In short, he has not alleged or proffered, though statements or testimony, how such records are relevant to any of his current claims. Analysis Colon Cancer Although the veteran's MOS was not listed, the related civilian job was magazine keeper (explosive). Even if the Board were to concede that the veteran was exposed during service to asbestos and lead-based paint, the evidence indicates that he was also exposed to asbestos in his postservice employment in construction. Notably, his post- service employment in construction is listed by the M21-1 as having a higher incident of asbestos exposure. See M21-1, Part VI, par. 7.21(b)(1). Moreover, while the M21-1 provides that a clinical diagnosis of asbestosis requires, not only a history of exposure but radiographic evidence of parenchymal lung disease, no radiographic evidence of parenchymal lung disease appears in the claim's file. On the other hand, the M21-1 provides that there is a higher incidence of gastrointestinal cancer, and cancer of the colon is a form of gastrointestinal cancer, among those exposed to asbestos. If a veteran served on 90 days of active duty, and a malignant tumor (colon cancer) is manifested to a compensable degree within one year following discharge from active duty, such disease may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Colon cancer was not manifested in service or within the veteran's first postservice year; it was first noted in 1990. Consequently, service connection for colon cancer on the basis that it manifested in service, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309) is not warranted. There are conflicting medical opinions of record regarding whether the veteran's colon cancer is related to asbestos exposure in service. The probative value of medical opinion evidence is based on the medical expert's review of pertinent historical data, personal examination of the patient, and the examiner's knowledge and skill in analyzing the data. The Board must determine how much weight is to be attached to each opinion. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another's depending on factors such as reasoning employed by the physicians, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has considered the statements of Dr. J.W. in support of the veteran's claim. However, these statements have less probative value than the VA examiner. First, the notation in the January 1995 clinical record and the March 1995 statement are no more than mere conclusions, they do not set forth the reasoning or rationale upon which they were based, or the evidence relied upon or considered. Secondly, while the physician links the veteran's cancer to asbestos exposure, the opinion does not make any reference to inservice exposure. An opinion that does not specifically link the veteran's cancer to inservice exposure has no probative value, particularly when the evidence indicates postservice exposure. Third, the evidence suggests that the March 1995 statement was prepared in conjunction with the veteran's participation in a civil matter apparently based upon postservice exposure to asbestos. On the other hand, the opinion reached by the VA examiner in 2004 was reached after not only recording a history related by the veteran but also after a review of the evidentiary record. The examiner also provided the rationale for the opinion. Thus, the Board gives greater weight to the opinion expressed by the 2004 VA examiner, which was essentially against the claim. While the veteran may sincerely believe that his colon cancer was due to events in service (including exposure to Agent Orange), it is not competent evidence, as he is a layperson, untrained in determining a medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Accordingly, a preponderance of the evidence is against the claim, and service connection for colon cancer is not warranted. COPD The evidence shows there is a diagnosis of COPD. However, the M21-1 does not list COPD as one of the asbestos-related diseases. See M21-1, Part VI, par. 7.21(a)(1) & (2). Furthermore, the veteran did not have lung problems in service, and COPD was not diagnosed until many years postservice. Notably, a lengthy time interval between service and the earliest medical documentation of complaints or findings of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000). There is also no competent medical evidence of record that links the veteran's COPD to service, including exposure to asbestos. The 2004 VA pulmonary examination determined, after a review of the claim file, that the veteran's COPD was most likely due to smoking tobacco and an addendum confirmed that pulmonary function testing corroborated this diagnosis. It is also noteworthy that the 2004 VA examiner commented that radiological studies had not found pleural or other changes that might be due to asbestosis. There is no opinion to the contrary. Accordingly, a preponderance of the evidence is against the claim, and service connection for COPD is not warranted. Lumbar Spine, Knees, Ankles, and Right Shoulder Service medical records indicate the veteran was treated for a left knee injury, which apparently resolved, as musculoskeletal and lower extremity evaluations at separation were normal. There was no additional knee complaints, or any lumbar spine, bilateral ankle, or right shoulder complaints until many years after service. Notably, a lengthy time interval between service and the earliest medical documentation of complaints or findings of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. See Maxson, supra. The only competent (medical) evidence of record that addresses the etiology of the claimed low back, right shoulder, and bilateral ankle and knee disorders is against the claim. The 2003 VA orthopedic examination noted that the veteran's multiple complaints throughout his lumbar spine and right shoulder as well as both knees and ankles and were believed to be due to degeneration, over time, and chronic strains and sprains. There is no evidence to the contrary. Even veteran conceded in his testimony that no physician had ever corroborated his belief that inservice exposure to lead- based paint was responsible for his multiple joint pain and arthritis and that all of his joint pain, with the exception of the lumbar spine, started after his colon surgery. The evidence does not otherwise demonstrate that the veteran's activities, as vigorous as they may have been during service, either caused or contributed to his arthritis of multiple joints. Accordingly, service connection for pathology of the veteran's lumbar spine, knees, ankles, and right shoulder is not warranted. Sleep apnea and Depression The record does not show, and the veteran has not stated otherwise, that either disorder manifested in service or was somehow directly related to service. Instead, he contends that his sleep apnea and depression are secondary to his service-connected disabilities. The evidence shows that the veteran has been diagnosed as having obstructive sleep apnea and depression. The January 2003 VA psychiatric examination found that the veteran had a chronic major depressive disorder which appeared to be related to his physical conditions, including his cancer. However, a threshold legal requirement for establishing secondary service connection is that the primary disability alleged to have caused or aggravated the disability for which secondary service connection is sought must itself be service- connected. Here, service connection is not in effect for any disability and the claims seeking service connection for colon cancer, COPD, and lumbar, bilateral knee, bilateral ankle, right shoulder disorders have been denied. Hence, this threshold legal requirement is not met. Accordingly, the argument that service connection is warranted for sleep apnea or depression as secondary to a service-connected disability lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for colon cancer is denied. Service connection for COPD is denied. Service connection for lumbar strain with degenerative changes and degenerative disc disease is denied. Service connection for degenerative joint disease of the knees is denied. Service connection for degenerative joint disease of the ankles is denied. Service connection for degenerative joint disease of the right shoulder is denied. Service connection for depression secondary to service- connected disabilities is denied. Service connection for sleep apnea secondary to service- connected disabilities is denied. ____________________________________________ D. BREDEHORST Acting Veterans Law Judge, Board of Veterans' Appeals Important Notice: Attached to this decision is a VA Form that provides information concerning your rights to appeal our decision. Due to recent changes in the law, some of the information contained in the attached notice of appellate rights form is no longer accurate concerning the ability to pay attorneys and agents to represent you. Some additional information follows that summarizes the current law. To the extent that the information contained in the attached VA Form conflicts with the summary below, please disregard the information on the VA Form and instead rely upon the following information: Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006). If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. VA is in the process of amending its regulations governing representation of claimants for veterans' benefits in order to implement the provisions of the new law. More information concerning the regulation changes and related matters can be obtained at http://www1.va.gov/OGC (click on "Accreditation and Recognition of Service Organizations"). Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the Chief Counsel for Policy (01C3) Board of Veterans' Appeals 810 Vermont Avenue, NW, Washington, DC 20420 Facsimile: (202) 565-5643 (When final regulations are published to implement the requirements of the new law, fee agreements must be filed with the VA Office of the General Counsel and not the Board.) Department of Veterans Affairs