Citation Nr: 0812159 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-19 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for renal cell cancer of the left kidney as a result of asbestos exposure. 2. Entitlement to service connection for cancer of the eye, nose, and head as a result of asbestos exposure. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) as a result of asbestos exposure. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION The veteran had active service from June 1949 to May 1950 and from October 1950 to November 1951. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Based on a November 2007 motion, this appeal has been advanced on the docket because of the veteran's advanced age. 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claims, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent medical evidence of record does not show that the veteran's renal cell cancer of the left kidney is related to active military service to include as due to asbestos exposure or that it manifested to a compensable degree within one year of discharge. 3. The competent medical evidence of record does not show that the veteran has been diagnosed with cancer of the eye, nose or head. 4. The competent medical evidence of record does not show that the veteran's current COPD is related to active military service to include as due to asbestos exposure. CONCLUSIONS OF LAW 1. Renal cell cancer of the left kidney was not incurred in or aggravated by active service nor may it be presumed to have been incurred therein. 38 U.S.C.A. § 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 2. Cancer of the eye, nose, and head was not incurred in or aggravated by active service nor may it be presumed to have been incurred therein. 38 U.S.C.A. § 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 3. COPD was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the veteran of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In correspondence dated in October 2006, the RO advised the veteran of what the evidence must show to establish entitlement to service-connection, described the types of evidence that would support the claims, and asked the veteran to submit any information and evidence in his possession that pertained to his claims to include details regarding his claimed asbestos exposure and medical evidence showing diagnosis of a disease caused by asbestos. The RO also advised the veteran how VA determines the disability rating and the effective date once service-connection has been established for a disability. The RO further explained what evidence had already been received, what evidence VA was responsible for obtaining, and what evidence VA would make reasonable efforts to obtain on the veteran's behalf in support of his claims. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the veteran with a VA medical examination in February 2007 with respect to his claims for COPD and renal cell cancer. Although the veteran was not provided with a medical examination with respect to his claim of service connection for cancer of the eye, nose, and head, an examination with respect to that claim is not necessary. As will be discussed in greater detail below, there is already medical evidence affirmatively showing that the veteran has been diagnosed with cancer of the eye, nose, or head. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). The Board additionally observes the veteran's service medical records as well as VA and private treatment records that the veteran has identified as pertinent to his claims have been associated with the claims folder. Furthermore, the RO submitted a request to verify the veteran's claimed exposure to asbestos and relevant service records were obtained in October 2006. The veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to the claims. Accordingly, the Board will proceed with appellate review. II. Legal Criteria Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). 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) (2007). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). This presumption is rebuttable by affirmative evidence to the contrary. Id. Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases that provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; 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). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21-1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1, part VI, para. 7.21(a)(1). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. 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. 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 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). Department of Veterans Affairs, Veteran's 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 asbestos-related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. 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. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). III. Analysis The veteran contends that he developed renal cell cancer of the left kidney, cancer of the eye, nose, and head, and COPD due to exposure to asbestos during his service in the U.S. Navy. The veteran specifically asserts that pipes wrapped in asbestos were directly over the bunk where he slept and he would typically awaken with "white specks" of asbestos all over his body and eyes during his service aboard the U.S.S. Kaskaskia. Renal Cell Cancer of the Left Kidney The medical evidence clearly shows that the veteran currently suffers from renal cell cancer of the left kidney. Specifically, a private hospital operative report dated in February 2004 shows that the veteran had a preoperative diagnosis of left renal mass, underwent a left laparoscopic partial nephrectomy and cystoscopy with left ureteral stent insertion and retrograde pyelogram, and was shown as having a postoperative diagnosis of left renal cell carcinoma. It is additionally noted that the veteran's VA treatment records from September 2005 to April 2007 contain numerous references to the veteran's renal cell carcinoma and his partial left nephrectomy in 2004. It is particularly observed that a VA physician noted an assessment of "Stage T1, grade 2 renal cell carcinoma, status post partial nephrectomy" and explained that the veteran would need to be followed every six months for two years then annually for five years in order to obtain certain test results as the veteran had stage 1 disease according to current guidelines in a September 2005 VA treatment record. Furthermore, the veteran's recent VA treatment records list renal cell carcinoma status post partial nephrectomy among his current problems. In regard to the veteran's contention that renal cell cancer developed as a result of in-service asbestos exposure, the Board notes that the veteran has written in several statements submitted during the course of this appeal that he frequently awoke with white specks all over his face and body during his naval service; it is unclear to what extent the veteran is competent as a lay person to identify the white substance he referenced was asbestos. Furthermore, there is evidence to indicate that the veteran had occupational exposure to asbestos after service. Indeed, the veteran wrote in an October 2006 statement that he was a ceramic tile installer for 30 years after leaving the service and the February 2007 VA medical examiner wrote that the veteran was probably exposed to asbestos through the cement for ceramic tile, the use of which stopped in the 1970s according to a medical report he had read. Although the veteran's representative noted in an October 2006 written statement that the February 2007 VA medical examiner's assertion that the veteran was exposed to asbestos in his employment as an installer of ceramic tile was merely speculative because he had no reasonable proof of such exposure, the Board finds that the opinion of a competent medical examiner based on his independent research to be both credible and very probative. Moreover, as noted above, the occupation of ceramic tile installer would be considered a major occupation involving exposure to asbestos according to M21-1, Part VI, par. 7.21(b). Even assuming that the veteran was also exposed to asbestos while on active duty as he has asserted, the February 2007 VA medical examiner provided a summary of his review of medical literature related to renal cell cancer epidemiology which showed contradictory findings regarding the relationship between renal cell carcinoma and asbestos exposure. The examiner ultimately concluded that any opinion he rendered as to the relationship between the veteran's renal cell cancer and asbestos would be speculation because the literature relates the increased risk of renal cell cancer from zero to 7.1 times by asbestos exposure. The Board notes that a possible connection or one based on "speculation" is too tenuous a basis on which to grant service connection. The reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102. The February 2007 examiner based his conclusion on review of the claims folder and examination of the veteran as well as a review of medical literature pertaining to the causes of renal cell cancer and his opinion is the only competent medical opinion of record. Although the veteran has repeatedly asserted that that his renal cell carcinoma was caused by his exposure to asbestos during service, the veteran is not shown to have the requisite medical expertise to render a competent medical opinion regarding the cause of his current renal cell cancer. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, his opinion regarding the cause of his renal cell carcinoma is not considered competent and is afforded no probative value. The Board notes that the veteran has submitted several medical articles from the internet indicating a positive relationship between asbestos exposure and renal cell carcinoma. However, the February 2007 VA medical examiner performed a thorough review of the medical literature on the relationship between the renal cell cancer and asbestos exposure and essentially found the research results to be inconclusive. The Board affords more probative value to the research conducted by a competent health care provider than to the medical articles submitted by the veteran, particular as the February 2007 VA examiner considered the history of illness presented in this particular veteran's case, including his post-service exposure to asbestos, together with the medical literature on the relationship between renal cell cancer and asbestos exposure. The medical evidence of record does not otherwise show that the veteran's renal cell carcinoma is related to active military service. The service medical records do not show that the veteran was treated for or diagnosed with renal cell cancer of the left kidney in service and the November 1951 discharge examination report shows that the veteran's genitourinary system was clinically evaluated as normal upon separation from service. Indeed, as stated above, the record shows that the veteran was first diagnosed with renal cell cancer in 2004, approximately 53 years after his discharge from service. Moreover, there is no competent medical opinion evidence of record linking the veteran's renal cell cancer to active service. As the evidence does not show the veteran's renal cell carcinoma is related to active military service or that a malignant tumor manifested to a compensable degree within a year of discharge, the Board finds that the preponderance of the evidence weighs against the claim and service connection for renal cell carcinoma of the left kidney is not warranted. Cancer of the Eye, Nose, and Head In his September 2006 claim, the veteran wrote that he had undergone pre-cancer surgery on his nose, eye, and the top of his head a few months before at a VA medical center (VAMC) and claimed that cancer of the eye, nose and head were related to exposure to asbestos in service. The Board observes that a March 2006 VA treatment record from the oncology clinic notes that the veteran's pathology report revealed the following: intradermal melanocytic nevus with congenital features and solar elastosis for the excised skin of the right forehead; edematous skin and soft tissue without evidence of malignancy for the excised skin of the right upper eyelid; and edematous skin and soft tissue and multiple acrochordon with no evidence of malignancy for the excised skin of the left upper eyelid. Such pathological findings do not show that the veteran currently suffers from cancer of the eye, nose and head. In addition, the veteran's VA treatment records from September 2005 to April 2007 are absent of any findings or treatment of cancer of the eye, nose and head. Furthermore, earlier medical evidence to include the veteran's service medical records is negative for any findings of cancer of the eye, nose and head. Although the Board notes that the veteran submitted medical articles from the internet that indicate a possible relationship between asbestos exposure and cancer of the nose and head, such articles do not constitute competent medical evidence of a current diagnosis of cancer of the eye, nose and head for this veteran. Moreover, the Board recognizes that the veteran has asserted that that he currently suffers from cancer of the eye, nose and head due to exposure to asbestos during service; however, the veteran is not shown to have the requisite medical expertise to diagnose his claimed disorder. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, his statements are not considered competent and are afforded no probative value. Without evidence of a current disability, the Board finds that the preponderance of the evidence is against the claim and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). COPD A review of the medical evidence shows that the veteran currently suffers from COPD. Indeed, the February 2007 VA examination report notes a diagnosis of COPD as well as the veteran's VA treatment records dated from September 2005 to April 2007 include multiple findings of COPD. Earlier medical evidence of record also includes diagnoses of COPD. While the veteran contends that his current COPD developed as a result of in-service asbestos exposure and the first definitive diagnosis of COPD in 1987 falls within the applicable latency period, the competent medical evidence does not link the veteran's COPD to asbestos exposure. As noted, the February 2007 VA examiner concluded that any opinion he rendered as to the relationship between the veteran's claimed renal cancer and asbestos would be speculation because the literature relates the increased risk of renal cell cancer from zero to 7.1 times by asbestos exposure. However, with respect to the claimed COPD, the February 2007 VA examiner further noted that there was no pulmonary evidence of asbestos problems on the veteran's chest x-ray and his diffusion capacity was normal. While the VA examiner did clearly articulate his conclusion as to the relationship between the COPD and asbestos exposure, it is clear from the overall text at the end of his report that he felt such a relationship unlikely. While the record reveals that a medical examiner once wrote in a September 1994 treatment record that the veteran's COPD could questionably be secondary to asbestos exposure, such opinion was clearly phrased in terms that were speculative. In addition, the examiner did not provide any rationale explaining this notation, nor is it clear whether the examiner considered diagnostic studies such as those reviewed by the February 2007 VA examiner. Consequently, this notation is afforded no probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board acknowledges that the veteran has submitted medical articles from the internet indicating a positive relationship between asbestos exposure and COPD. However, the Board affords the February 2007 VA medical examiner's opinion more probative value than the medical articles submitted by the veteran as the February 2007 VA examiner considered the history of illness presented in this particular veteran's case, the results of diagnostic studies, and his own independent research. The evidence does not otherwise suggest that the veteran's COPD is otherwise related to active military service. The service medical records are absent of any findings or treatment for COPD. While the Board observes that a November 1951 chest x-ray report reveals that the veteran demonstrated accentuated bronchial markings in his right upper lung fields at that time, it was also noted that such findings were of equivocal significance and no definite evidence of active pulmonary disease was shown. The November 1951 radiologist recommended that a repeat examination be done in three to four months for further evaluation and, eight months later, a July 1952 VA hospitalization report reveals that a complete physical examination of the veteran was essentially negative except for a small laceration over the body of his sternum with nodule palpable in deep subcutaneous tissue. In fact, the record shows that the veteran did not seek treatment for breathing problems and was not diagnosed with questionable mild COPD until 1985, approximately 34 years after separation from service. The first definitive diagnosis of COPD is not shown until 1987, approximately 36 years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Although the veteran has repeatedly asserted that that his COPD was caused by his exposure to asbestos during service, the veteran is not shown to have the requisite medical expertise to render a competent medical opinion regarding the cause of his current COPD and his opinion is afforded no probative value. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As explained above, the competent medical evidence does not show that the veteran's current COPD is related to active military service to include as due to asbestos exposure. Thus, the Board finds that the preponderance of the evidence weighs against the veteran's claim and service connection for COPD is not warranted. In reaching the above conclusions, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claims and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for renal cell cancer of the left kidney as a result of asbestos exposure is denied. Entitlement to service connection for cancer of the eye, nose, and head as a result of asbestos exposure is denied. Entitlement to service connection for COPD as a result of asbestos exposure is denied. ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs