Citation Nr: 0819051 Decision Date: 06/10/08 Archive Date: 06/18/08 DOCKET NO. 05-26 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for heart disease, claimed as due to ionizing radiation or asbestos. 2. Entitlement to service connection for a neck condition, claimed as due to ionizing radiation or asbestos. 3. Entitlement to service connection for prostate cancer, claimed as due to ionizing radiation or asbestos. 4. Entitlement to service connection for a lung condition, claimed as due to ionizing radiation or asbestos. 5. Entitlement to increased compensation for a low back strain, rated as 20 percent disabling prior to April 8, 2006, and subsequently rated as 40 percent disabling. 6. Entitlement to an increased rating for residuals of a cock-up deformity of the second left toe from post operative resection of the head and neck of the second metatarsal, currently rated as 30 percent disabling. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Gregory D. Keenum, attorney ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from March 1956 to October 1959. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Jackson, Mississippi Regional Office (RO). The issues of entitlement to service connection for prostate cancer and a lung disorder, entitlement to increased ratings for a low back strain and a left foot disability, and the claim for a total disability rating based on unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Heart disease was not present until many years after service, and there is no competent evidence that it may be related to an incident during service, to include the claimed radiation and asbestos exposures. 2. A neck condition was not present until many years after service, and there is no competent evidence that it may be related to an incident during service, to include the claimed radiation and asbestos exposures. CONCLUSIONS OF LAW 1. Heart disease, claimed as due to ionizing radiation or asbestos, was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2007). 2. A neck condition, claimed as due to ionizing radiation or asbestos, was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA has a duty to provide specific notification to the veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). The Board finds that the content requirements of a notification letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in May 2002, December 2003, March 2004, April 2004 provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letters specifically informed the veteran that he should submit any additional evidence that he had in his possession. The August 2006 letter provided information regarding the potential assignment of ratings and effective dates in the event service connection is granted. There was no prejudice resulting from the timing of the letters because veteran was afforded an appropriate period of time following the issuance of the letters to submit evidence, and his claims were subsequently readjudicated. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His service medical records and post service treatment records have been obtained. He has declined a hearing. He was also afforded VA medical examinations, and appropriate medical opinions were provided. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of evidence is required. Service connection may be granted for disability because of a disease or injury that was incurred or aggravated by service. 38 U.S.C.A. § 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303. If a chronic disorder such as cardiovascular disease is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). In order to establish service connection for the claimed disorder, the following must be present: medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), affirmed at 120 F.3d. 1239 (Fed. Cir. 1997). First, there are certain types of cancer which will be presumptively service connected for radiation-exposed veterans. See 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) includes a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. The regulation states that, if the veteran has one of the radiogenic diseases, the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran's disease resulted from radiation exposure during service. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994). The Board notes initially that heart disease and a neck condition are not disabilities which may be presumed to be due to radiation exposure under either 38 C.F.R. § 3.309 or 3.311. In addition, the veteran has not presented any competent evidence that current disabilities of the heart and neck may be related to any radiation exposure in service. Therefore, the claims may not be allowed on the basis that the heart and neck disabilities were due to radiation exposure. Regarding the contention that the claimed disabilities were caused by exposure to asbestos, the Board notes that there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations for these types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure, under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Veteran's Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the claim-development procedures). With these claims, the RO 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, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2005). 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. However, in the case of 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. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). According to the veteran's form DD-214, the veteran's military occupational specialty was power plant operator. The veteran's attorney has presented articles indicating that power plant work may expose the worker to asbestos. For the sake of analyzing the veteran's claims, the Board will accept the contention that the veteran was exposed to asbestos while doing his duties in service. The Board further notes, however, that service medical records are negative for any complaints, findings, or diagnosis of a disability due to asbestos exposure. The report of a medical examination conducted upon separation from service in September 1959 shows that his heart, neck, and genitourinary system were normal. There is no evidence of any chronic problems involving the heart or neck within a year after separation from service. The report of a VA disability evaluation examination conducted in June 1960 shows that the only complaints pertained to the feet and a back condition. The earliest medical evidence pertaining to the claimed disabilities is from many years after service. For example, a private medical record dated in March 1974 reflects that the veteran was treated for a possible myocardial infarction. However, neither that record, no any subsequent record, contains any medical opinion linking any of the claimed disabilities to service. The Board also notes that the veteran has not presented any history of continuity of symptomatology of the claimed disorders since service. After a careful review of the record, the Board finds that the preponderance of the evidence is against entitlement to service connection. The evidence shows that heart disease and a neck disorder were not present until many years after service, and there is no competent evidence that they may be related to an incident during service, to include the claimed asbestos exposure. Heart disease and a neck disorder claimed as due to ionizing radiation or asbestos, were not incurred in or aggravated by active service, and may not be presumed to have been incurred in service. ORDER 1. Service connection for heart disease, claimed as due to ionizing radiation or asbestos, is denied. 2. Service connection for a neck condition, claimed as due to ionizing radiation or asbestos, is denied. REMAND Regarding the claim for service connection for prostate cancer, the Board notes that prostate cancer is included in a list of "radiogenic diseases" set forth in 38 C.F.R. § 3.311(b) which will be service-connected provided that certain conditions specified in that regulation are met. The regulation states that, if the veteran has one of the radiogenic diseases, a dose estimate will be obtained and the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran's disease resulted from radiation exposure during service. A remand is required to accomplish that development. In reaching this conclusion, the Board has noted that the veteran has failed to respond to a radiation exposure questionnaire; however, the development contemplated under § 3.311 is not contingent on action by the veteran. Regarding the claim for service connection for a lung disorder claimed as due to radiation or asbestos, the Board notes that the evidence which is currently of record includes a private X-ray report dated in August 2001 which indicates that chest X-rays revealed that the lung parenchyma had interstitial changes in the mid and lower lung zones bilaterally. It was concluded that the changes were consistent with asbestos provided the subject's exposure history and period of latency are appropriate. The private record is not adequate to provide a basis for allowing the claim, however, it is sufficient to raised a duty on the part of the VA to provide the veteran a respiratory examination for the purpose of determining whether he has lung disease which is related to any asbestos exposure during service. The Board notes that the VCAA requires that the VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). Regarding the claims for increased ratings, the Board finds that further notification is required pursuant to the VCAA. In June 2004, the veteran received notice that he should show that his disability had worsened. Significantly, however, in Vazquez-Flores v. Peake, 22 Vet App 37 (2008), the United States Court of Appeals for Veterans Claims (Court) established significant new requirements with respect to the content of the duty-to-assist notice which must be provided to a veteran who is seeking a higher rating. With respect to increased rating claims, the Court found that, at a minimum, a 38 U.S.C. § 5103(a) notice requires that the Secretary notify the veteran that, to substantiate such a claim: (1) the veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life; (2) if the Diagnostic Code (DC) under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the veteran's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the veteran; (3) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the Vazquez-Flores case, the Court found that the VCAA notice that was provided to the veteran was inadequate. VA only advised the veteran to submit evidence that shows that his disability had "gotten worse." The Court in that case found that the notice provided was inadequate due to the confusing nature of the two notices, and the failure to explain that evidence is required to demonstrate the worsening of the service-connected condition and the effect of that worsening on the veteran's occupational and daily life, or to provide, at least in general terms, the criteria beyond the effect of the worsening of the disability upon the occupational and daily life that is necessary to be awarded the higher disability rating for the condition. Accordingly, adequate section 5103(a) notice for the veteran's increased-compensation claims should have included, at a minimum, notification that he must either provide, or ask the Secretary to obtain, medical or lay evidence demonstrating the worsening of the disability and the effect of that worsening on his employment and daily life. Additionally, because at least some of the higher disability ratings authorized under the DC (and referenced DCs) under which his disabilities are rated are based on specific criteria beyond the obvious effect of the worsening of the disability and its effect upon his employment and daily life, the Secretary should have notified the veteran, at least in general terms, of the information and evidence necessary to establish these more specific criteria. Applying these principles to the present case, the Board finds that although the veteran was previously provided a VCAA notification letter, it did not meet the requirements set forth in Vazquez-Flores v. Peake. In fact, the letter in the present case contained virtually the same information which was found inadequate in Vazquez-Flores v. Peake. A remand is required to correct this deficiency. Accordingly, the case is REMANDED for the following action: 1. Additional VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must be provided to the veteran, including a description of the provisions of the VCAA, notice of the evidence required to substantiate the claim, and notice of the veteran's responsibilities and VA's responsibilities in developing the evidence, including what evidence the veteran is responsible to obtain and what evidence VA will obtain, and a request that the veteran provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002 & Supp. 2007). The notice letter must explain that evidence is required to demonstrate the worsening of the service-connected condition and the effect of that worsening on the veteran's occupational and daily life, or to provide, at least in general terms, the criteria beyond the effect of the worsening of the disability upon the occupational and daily life that is necessary to be awarded the higher disability rating for the condition (such as a specific measurement or test result). In particular, the letter should include the rating criteria from the relevant diagnostic codes. The veteran should then be afforded an appropriate period of time to respond. VA should attempt to obtain any additional evidence identified by the veteran. 2. The RO should request a dose estimate from the Defense Threat Reduction Agency (DTRA). The information contained in the letter to DTRA should include the regulation under which the request is made (38 C.F.R. § 3.311); the veteran's name, address and phone number; the veteran's branch of service and service number; the veteran's social security number; the veteran's organization or unit of assignment at the time of exposure; dates of assignment at the radiation-risk activity; a full description of the duties at the radiation risk activity (with enclosure of copies of the veteran's statements and other pertinent documents); and a description of the disease claimed, to include the location of all tumors. See VBA Fast Letter 04-20. 3. If exposure to any radiation is confirmed, the case should then be referred to the Under Secretary for Benefits to obtain an opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the veteran's prostate cancer resulted from exposure to ionizing radiation during active service. 4. The veteran should be afforded a VA respiratory examination by a pulmonary specialist. The claims folder should be made available to the examiner for review. The examination report should include a summary of the relevant history, both in-service and post- service. The examination should include a chest X-ray any any other appropriate study. The radiology report and the actual chest X-ray should be made available to the VA examiner for review. The examiner should offer an opinion as to whether any abnormality which is found on examination and/or on X-ray is attributable to exposure to asbestos in service. The opinion should also address the role of the veteran's past history of smoking as much as four packs of cigarettes per day beginning at age 12 (per a private treatment record dated in August 1998). An explanation as to the criteria for a diagnosis of asbestosis or other asbestos related disease should be provided. 5. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claims may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The veteran's TDIU claim is inextricably intertwined with his other claims, inasmuch as a grant of service connection for any disability could affect the outcome of his TDIU claim. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). See also Kellar v. Brown, 6 Vet. App. 157 (1994) and Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of this claim must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs