Citation Nr: 0740338 Decision Date: 12/21/07 Archive Date: 01/02/08 DOCKET NO. 06-26 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1 Entitlement to service connection for pulmonary disorder, to include as due to asbestos exposure. 2. Entitlement to service connection for prostate cancer, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from February 1958 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for pulmonary disease and prostate cancer, both to include as due to asbestos exposure. The veteran testified at a September 2007 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. FINDINGS OF FACT 1. There is no present medical evidence that the veteran has a pulmonary disorder. 2. The veteran's prostate cancer was not shown in service or for many years thereafter. 3. There is no competent medical evidence of record that links the veteran's prostate cancer to asbestos or DDT exposure during active service. CONCLUSIONS OF LAW 1. A pulmonary disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303, M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. (2007). 2. Prostate cancer was not incurred in or aggravated by active service, nor may its incurrence be so presumed. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.3.309, M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claim. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Notice errors (either in timing or content) are presumed prejudicial, but VA can proceed with adjudication if it can show that the error did not affect the essential fairness of the adjudication by showing: 1) that any defect was cured by actual knowledge on the part of the veteran; 2) that a reasonable person could be expected to understand from the notice what was needed; or 3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). In a letter dated in October 2004, the veteran was advised in accordance with the law, prior to the April 2005 rating decision, and in accordance with the requirements of C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VA must also provide notification that a disability rating and an effective date for the award of benefits be assigned if service connection is awarded. The veteran received Dingess notification in March 2006. Additionally, since the preponderance of the evidence is against the aforementioned claims, any question as to the appropriate disability rating and effective date to be assigned is moot. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claims. The record includes VA treatment records, comrade statements, pictures taken during the veteran's service and internet articles related to environmental exposure. There are no known additional records or information to obtain. A hearing was offered, and scheduled, and the veteran testified at both a May 2006 RO hearing before a hearing officer and a Travel Board hearing before the undersigned VLJ in September 2007. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide these claims. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with his claims. Service Connection The veteran and his representative contend, in essence, that service connection is warranted for a pulmonary disorder and prostate cancer. It is maintained that a pulmonary disorder and prostate cancer are due to asbestos exposure in service, or in the alternative due to DDT exposure in service. Additionally, the veteran alleges that his prostate cancer may be due to gonorrhea exposure during active service. Under applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for prostate cancer may be presumed if it is shown to a degree of 10 percent disabling within the first post service year. 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With respect to the veteran's claim that a pulmonary disorder and/or prostate cancer is due to exposure to asbestos during active service, it is important to note that according to the veteran's Navy Personnel Records, he served on the USS Rochester from May 1959 to March 1961. He was a member of the Engineering and Damage Control Organization. His DD 214 indicated that he completed Machinist Mate School in 1958. He submitted a January 2004 statement on behalf of his claim indicating that he was assigned to the M division whose duty was to run the main engines, related machinery, supply fresh water by evaporation, and to produce electricity by turbo generators. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary 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 the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR. The U.S. Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, topic 29. It lists some of the major occupations involving exposure to asbestos, including 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. 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). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9; see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. In short, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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. M21-1MR, Part IV, Supbart ii, Chapter 1, Section H Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. As for the veteran's claim for service connection for pulmonary disorder due to asbestos exposure and/or DDT exposure, in service, the claim must be denied. Service medical records are devoid of findings, treatment, or diagnosis for a pulmonary disorder. After service, the veteran was referred in October 2004 for a question of interstitial lung disease. He complained of becoming breathless too readily. He indicated that he was a machinist mate for several years in the Navy on Navy vessels and much of his job involved handling, cutting, and installation of asbestos. He became concerned because he heard that some of his ship mates had died from asbestos related lung disease. Pulmonary function test (PFT) showed what might be interpreted as a restrictive defect. However, the technician's notes indicated that the veteran had difficulty doing the test and the shape of the flow-volume curve indicated that performance of the test was suboptimal. High resolution chest computed tomography (CT) showed no evidence of asbestos-related parenchymal or pleural disease. Lung parenchyma was normal and there was no fibrosis. The impression was that there was no evidence of significant pulmonary disease. The examiner stated that he would tend to doubt the reliability of the PFTs in light of the fact that everything else looked normal. He could not provide an adequate explanation for dyspnea. The veteran underwent VA examination in June 2006. He made similar complaints as those expressed in October 2004, indicating that he became breathless too easily. He was able to walk on level surfaces for extended periods with no problems, but experienced difficulties only with heavier exertion or walking up 1 to 2 flights of stairs. He noted that he smoked for approximately 20 years, but none for the past 20 years. He denied wheezing, frequent bouts of bronchitis, chronic cough, etc. While serving on the USS Rochester, he was exposed to paint fumes (mainly red lead paint), DDT, and asbestos. He also stated that the bunks were located under the pipes. The examiner noted the veteran's October 2004 evaluation and that there was no evidence of asbestos-related parenchymal or pleural disease. He also related that the veteran had a history of heavy snoring but no sleep apnea. There was no history of asthma and minimal exposure to second hand smoke. He had no other exposure to environmental contaminants, and no history of tuberculosis. He denied night sweats or hemoptysis. The veteran had scattered inspiratory and expiratory wheezing which cleared with coughing. X-rays performed at this time when compared with April 2004 chest x-rays showed no significant change. The pulmonary vasculature was normal and the lungs were clear. The examiner's opinion was that it was less likely than not that the veteran's claimed respiratory condition was due to asbestos exposure or DDT exposure. He stated that although the veteran was likely to have been exposed to asbestos and pesticides (DDT) during his military years, there were no objective clinical findings indicating significant pulmonary disease. The PFTs and those of October 2004 were without definitive findings. In May 2006, three comrade statements were received by VA in connection with the veteran's claims. The statements indicated, in pertinent part, that they served with the veteran and that they were exposed to DDT and asbestos upon the USS Rochester. Both the veteran's RO hearing in May 2006 and his Travel Board hearing in September 2007, indicated the veteran's testimony of exposure to asbestos and DDT while serving in the Navy on the USS Rochester. He claimed that the DDT irritated his lungs and that he was exposed to asbestos during work without protection. He also stated during his Travel Board hearing in September 2007 that he was not being treated for a pulmonary disorder. After thoroughly reviewing the record, the medical evidence of record does not reveal that the veteran presently has a pulmonary disorder. In order to prevail on a claim for service connection, there must be current evidence of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, there is no competent medical evidence of a pulmonary disorder which had its onset in service or that was due to asbestos exposure or exposure to DDT. Without a diagnosed pulmonary disorder, there is no basis upon which the claim can be granted. Therefore, service connection for pulmonary disorder, to include as due to asbestos exposure, is not warranted. As for the veteran's claim for service connection for prostate cancer due to gonorrhea, asbestos, or DDT, during service, that claim must also fail. Service medical records show that the veteran was treated on two occasions in service for gonorrhea. On separation examination from service, there were no other findings, treatment, or diagnosis of gonorrhea at that time. There also was no evidence of prostate disorder or prostate cancer at that time. After service, there were no other findings, treatment or diagnosis of gonorrhea since service. The veteran was diagnosed with prostate cancer in 2004. At that time, the veteran underwent treatment with radiation therapy. The veteran testified at a RO hearing in May 2006. He indicated that he was exposed to asbestos as a result of his employment on ship during service and exposed to DDT as a result of an attempt to kill an infestation of bed bugs while stationed on the USS Rochester. In connection with his hearing, he submitted internet articles indicating that DDT may be connected to prostate cancer. In June 2006, the veteran underwent a VA examination. A medical opinion was requested as to whether the veteran's prostate cancer was due to exposure to DDT. The examiner stated that in reviewing the literature on prostate cancer, it was noted that this was the most common malignancy among men in the United States and in most western countries. Additionally, prostate cancer was described as the second leading cause of cancer death in the United States. Despite the common occurrence of this type of cancer, its cause or etiology remains largely unknown. The most consistent risk factors noted in individuals with prostate cancer were age, family history, African-American ethnicity, hormonal factors, smoking and possibly high consumption of animal fat and red meat. There had been suggested to be a link between exposure to insecticides, fertilizers, herbicides, and other chemicals used in the agricultural industry. However, the role of specific agricultural chemicals has not been firmly established. Although there appears to be a higher incidence of some cancers (soft tissue and blood cancer) with pesticide exposure, there is no documented definitive evidence that DDT exposure causes prostate cancer. The veteran underwent VA examination in February 2007. The examiner stated that the veteran had two cases of gonococcus in service. He had prostate cancer that was first diagnosed in 2004. He was treated with radiation therapy. The examiner indicated that to the best of his knowledge, there is no known correlation between sexually transmitted diseases, in this case gonorrhea, and prostate cancer. The examiner stated that this includes the original gonorrhea and also the possibility of chronic prostatitis, which the veteran reported he may have had when he was in his 20's. He also indicated that in evaluating the veteran's medical records, he found that the veteran was exposed to DDT in service. It was his opinion that there was some evidence although he did not believe it to be conclusive, that DDT may possibly contribute to prostate cancer, however, he could not "make the call with the data that [he] was able to look at as a positive or even a possibility for a positive correlation without resorting to a great deal of speculation." In the veteran's September 2007 Travel Board hearing, the veteran testified that his exposure to asbestos in service and/or DDT was the cause of his prostate cancer. The veteran indicated he was exposed to both asbestos and DDT while in the Navy. He also testified that no doctor had given him a definitive etiology as to the cause of his prostate cancer but that a VA doctor informed him that there could be a link with DDT and prostate cancer. He also indicated that he had a history of cigarette smoking and he testified that he had periods of heavy to light smoking, during the period of time he smoked. He also testified that he was exposed to DDT on more than two dozen occasions when trying to destroy a bed bug infestation while serving aboard the USS Rochester. After a thorough review of the evidence of record, the evidence does not show that the veteran has prostate cancer as a result of inservice gonorrhea, inservice exposure to asbestos, or inservice exposure to DDT. Initially, the service medical records do show that the veteran contracted gonorrhea on at least two occasions in service. However, there is no medical evidence of record that shows that the veteran's inservice exposure to gonorrhea somehow can be linked to his subsequent diagnosis of prostate cancer. A VA February 2007 medical examiner indicates that to his knowledge, there is no correlation to the development of prostate cancer and gonorrhea or chronic prostatitis. The only evidence linking possible inservice gonorrhea and subsequent development of prostate cancer is the veteran's claim of such. It is well established that laypersons cannot provide competent evidence when a medical opinion is required, as is the case with establishing the etiology or diagnosis of a medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Additionally, the same can be said for the veteran's prostate cancer and asbestos exposure in service. Having worked in the ship's engine room during service, it is possible that the veteran came into contact with asbestos, though the degree to which he was exposed is impossible to determine from the record. In any event, even if exposure to asbestos is conceded, the evidence does not show that the veteran has prostate cancer that was caused by the exposure to asbestos. None of the evidence of record shows a correlation between asbestos exposure and prostate cancer, but the veteran's statement of such. Again, he does not have the competency to establish an etiology of this medical condition. Finally, the veteran's final allegation is that his prostate cancer is due to DDT exposure while serving on active duty. The veteran has submitted comrade statements from three different comrades who served with the veteran indicating that they were exposed to DDT while fighting a bed bug infestation in service. None of those comrades could testify to any more than exposure to DDT. The veteran has submitted internet articles indicating a possible linkage of prostate cancer and DDT. However, the articles indicated that DDT may be linked to prostate cancer. Both of these studies are pilot programs and there has been no findings presented that indicate any more than possible links of DDT and prostate cancer. Both studies indicate that they are in the information gathering stage and as of yet, have done no more than made comparative studies. Furthermore, the veteran has presented nothing that specifically discusses whether his prostate cancer was at least as likely as not caused by DDT exposure. In fact, the February 2007 examiner indicated that although there was some inconclusive evidence that DDT may possibly contribute to prostate cancer, he could not make that correlation without resorting to a great deal of speculation. Lacking a finding of prostate cancer in service, prostate cancer to a compensable degree within one year of service discharge, or competent medial evidence that links the veteran's 2004 diagnosis of prostate cancer to gonorrhea in service or asbestos or DDT in service, a basis upon which to grant service connection for prostate cancer to include as due to asbestos exposure has not been presented. ORDER Service connection for pulmonary disorder, to include as due to asbestos exposure is denied. Service connection for prostate cancer, to include as due to asbestos exposure is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs