Citation Nr: 0844271 Decision Date: 12/23/08 Archive Date: 12/31/08 DOCKET NO. 06-29 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for basal cell carcinoma, to include as due to in-service exposure to herbicides. 2. Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from May 1969 to May 1973. Service in the Republic of Vietnam and receipt of the Combat Action Ribbon is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, in part, denied service connection for asbestos and recurrent basal cell carcinoma. The veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the San Antonio RO in August 2008. A transcript of the hearing has been associated with the veteran's VA claims folder. Issues not on appeal In the above-mentioned January 2005 rating decision, the RO granted the veteran's claim of entitlement to service connection for residuals of a scar injury to the right leg. A noncompensable (zero percent) disability rating was assigned. The RO also denied entitlement to a 10 percent evaluation based on multiple, noncompensable service- connected disabilities. The veteran has not, to the Board's knowledge, expressed dissatisfaction with those decisions. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. The issue of entitlement to service connection for asbestosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The competent medical evidence of record indicates that the veteran's basal cell carcinoma is related to his military service. CONCLUSION OF LAW Basal cell carcinoma was incurred as a result of the veteran's active military service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for basal cell carcinoma, to include as due to in-service exposure to herbicides. The veteran seeks entitlement to service connection for basal cell carcinoma. As is discussed elsewhere in this decision, the issue of entitlement to service connection for asbestosis is being remanded for further development. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the veteran regarding his claim for skin cancer on July 27, 2004. The Board need not, however, discuss the sufficiency of this notice letter or VA's development of the claim in light of the fact that the Board is granting the claim. Thus, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. The Board also notes the veteran has been provided notice regarding degree of disability and effective date as required by the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) in a March 20, 2006 letter. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). For certain chronic disorders, to include cancer, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In order to establish service connection for the claimed disorder, there must 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 in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection - Agent Orange exposure The law and applicable regulatory provisions pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era [the period beginning on January 9, 1962, and ending on May 7, 1975] shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii) (2008). The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2). See 38 C.F.R. § 3.309(e) (2008). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. In Combee v. Brown, the United States Court of Appeals for the Federal held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, (see 38 C.F.R. § 3.309(e)), but also must determine whether his current disability is the result of active service under 38 C.F.R. § 3.303(d). Analysis As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to Hickson element (1), the evidence of record contains a current diagnosis of recurrent basal cell carcinoma. See, e.g., an April 2002 treatment record of W.A.F., M.D. Hickson element (1) has therefore been satisfied. With respect to Hickson element (2), the Board will separately address in-service disease and injury. Concerning in-service disease, the veteran's service medical records are negative for any treatment or diagnosis of basal cell carcinoma. Nor was such manifested within one year after service. The thrust of the veteran's argument, however, relates to in- service injury. He contends that he was exposed to herbicides in connection with his military service and that this exposure led to his currently diagnosed basal cell carcinoma. A review of the veteran's service personnel records indicates that he was awarded the Vietnam Service Medal. The veteran's DD Form 214 reveals that he served as a boatswain and participated in missions in Vietnam waters from May 1972 through September 1972. During the August 2008 hearing, the veteran testified that his military service required travel through some of Vietnam's interior waterways. The Board finds that the veteran's military service involved duty within the Republic of Vietnam, i.e., on inland waterways. Therefore, the veteran is presumed to have been exposed to an herbicide agent. Accordingly, Hickson element (2) has been satisfied with respect to in-service injury. With respect to Hickson element (3), medical nexus, if basal cell carcinoma was listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), medical nexus would be presumed as a matter of law. Such is not the case here. This disability has not been identified by VA as being associated with herbicide exposure. Notwithstanding the inapplicability of the Agent Orange regulations, as discussed above the Board is obligated to fully consider the veteran's claim. See Combee, supra. In November 2004, R.J.A., M.D. examined the veteran and concluded that it was likely that the veteran's skin cancer is related to Agent Orange exposure. There are no contrary medical nexus opinions of record. As a result, Hickson element (3) has been met. All three Hickson elements are therefore met, and service connection for basal cell carcinoma is accordingly granted. ORDER Entitlement to service connection for basal cell carcinoma is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND 2. Entitlement to service connection for asbestosis. Pertinent law and regulations There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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 a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). 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. See 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 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). See Department of Veterans Affairs, Veterans Benefits Administration (VBA) 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. See 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). Reasons for remand After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further evidentiary development. The evidence of record contains a current diagnosis of asbestosis. See a March 2003 treatment report of J.W.B., M.D. During the August 2008 hearing, the veteran testified that he participated in removing asbestos insulation from the USS Sarsfield. This appears to be congruent with the history of that vessel, which indicates that the ship was constructed in 1945, during World war II, and from January 1970 to June 1970 (when the veteran was a crew member) she was undergoing overhaul. Thus, Hickson elements (1) and (2) in-service asbestosis exposure) have arguably been met. The Board observes, however, that because the veteran canceled a CT scan of his chest in conjunction with a June 2006 VA examination, the examiner could not render a diagnosis of asbestosis. In addition, there is a post- service history of exposure to various irritants while the veteran worked in the oilfields, as well as a history of smoking. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern whether the correct diagnosis is in fact asbestosis as well as the relationship, if any, between the claimed asbestosis and the veteran's in-service and post- service exposure to asbestos as well as his documented history of smoking. These questions must be addressed by an appropriately qualified medical professional. A medical opinion is therefore necessary. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2008) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED to VBA for the following action: 1. VBA should arrange for an examination of the veteran. The examiner should review the veteran's VA claims folder and provide an opinion, with supporting rationale, as to (1) whether the veteran currently has asbestosis and if so (2) whether asbestosis is related to his military service. If the reviewing physician finds that diagnostic testing is necessary, such should be accomplished. A report should be prepared and associated with the veteran's VA claims folder. 2. VBA should then readjudicate the veteran's claim of entitlement to service connection for asbestosis. If the benefit sought on appeal remains denied, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs