Citation Nr: 1004004 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 09-05 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a back disorder, secondary to service-connected left knee disorder. 2. Entitlement to service connection for breathing disorders. 3. Entitlement to service connection for renal cancer. 4. Entitlement to service connection for a skin disorder. 5. Entitlement to service connection for a colon disorder. 6. Entitlement to service connection for a digestive disorder. 7. Entitlement to service connection for a reproductive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from April 1993 to December 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a video-conference hearing in August 2009. It was agreed at the hearing that the record would be held open for 60 days for the Veteran to submit additional evidence. The Veteran submitted evidence with a waiver of initial RO consideration of the evidence in October 2009. See 38 C.F.R. § 20.1304 (2009). The issues of entitlement to service connection for renal cancer, and back, breathing, and skin disorders 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. There is no competent evidence that relates a colon disorder to service or any incident of service, including asbestos or chemical exposure. 2. There is no competent evidence that relates a digestive disorder to service or any incident of service, including asbestos or chemical exposure. 3. In August 2009, the Veteran withdrew his appeal of the claim for entitlement to service connection for a reproductive disorder. CONCLUSIONS OF LAW 1. A colon disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 2. A digestive disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303. 3. The criteria for withdrawal of a substantive appeal by the Veteran have been met concerning his claim of entitlement to service connection for a reproductive disorder. 38 U.S.C.A. § 7105(d)(5) (West 2002);; 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2005 and September 2006 correspondence of the information and evidence needed to substantiate and complete the claims for service connection for colon and digestive disorders, including based on asbestos and chemical exposure. The RO provided notice of how disability ratings and effective dates are determined in September 2006. The claims were readjudicated in a January 2009 statement of the case. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate the claims. Solicitation of a medical opinion is not necessary in connection with the claims of entitlement to service connection for colon and digestive disorders as there is no evidence indicating that either disorder may be associated with an established event, injury, or disease in service or that either disorder is due to chemical or asbestos exposure. See 38 C.F.R. § 3.159(c)(4)(C); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has substantially complied with the notice and assistance requirements; and the appellant is not prejudiced by a decision on the claims at this time. Factual Background The Veteran contends that he is entitled to service connection for colon and digestive disorders due to exposure to asbestos and various chemical substances during active duty service. Specifically, he alleges that his work as a track vehicle engineer subjected him to exposure to asbestos from vehicle brakes and other asbestos related material. Furthermore, he alleges that he was exposed to various other hazardous materials and contaminants including rock dust, lead and lead based products, diesel fuel, and diesel exhaust particulate soot at various times during his active duty service. The Veteran's DD Form 214 confirms that served as a track vehicle engineer for two years and four months. The Veteran's service treatment records reflect that in December 1993, the Veteran presented with complaints of gastrointestinal symptoms. He was placed on light duty for 24 hours and advised to consume a bland diet. In December 1994, the Veteran was treated for complaints of nausea and vomiting associated with stomach cramps. The assessment was rule out stomach virus. The service treatment records are otherwise negative for any digestive or colon disorder. Post-service medical treatment records dated in 2003 show a diagnosis of hiatal hernia. Records from 2005 show diagnoses of a hyperplastic polyp of the colon, diverticulosis, hemorrhoids, gastroesophageal reflux disease, and a hiatal hernia. The Veteran has submitted various internet treatises/reports pertaining to asbestos and chemical exposure but the articles do not address his specific claims. The Veteran testified at an August 2009 video-conference hearing that he received treatment on one occasion in service for hemorrhoids. He felt that his rectal polyps are due to chemical and asbestos exposure. With regard to his digestive disorder, he recalled receiving treatment on two occasions during service for stomach-related illnesses. He indicated that after he started working with chemicals, he developed digestive problems. He acknowledged that he had not received any postservice treatment for any of his claimed disorders prior to 2002. Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2009). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that colon and digestive disorders are due to exposure to asbestos in service. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the veteran's claim of entitlement to service connection for colon and digestive disorders under these administrative protocols using the following criteria. 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. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. M21- 1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. 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. Based on the evidence above, the Board finds that the medical evidence in this case fails to establish the Veteran has a current colon or digestive disorder related to service. The Veteran received treatment on two occasions for gastrointestinal related complaints; however, there was no additional treatment, findings or diagnosis of a chronic digestive disorder during service. Furthermore, the Veteran's service medical records show no findings or diagnosis in service of a chronic colon disorder. After service, the first medical evidence regarding a digestive disorder was in 2003 and in 2005 for a colon disorder. Significantly, there are no medical opinions linking either a colon or digestive disorder to service. Service connection for a colon disorder and for a digestive disorder on a direct basis is not warranted. Further, the Veteran has not presented any medical evidence that indicates that there is a link, or any type of association between any currently diagnosed digestive or colon disorder and exposure to asbestos or any chemicals during active duty service. While the Veteran may be competent to state that he worked with asbestos in-service, he is not competent to offer a medical opinion which requires specialized knowledge and training. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The only evidence supporting the Veteran's claims of entitlement to service connection for colon and a digestive disorders is his written statements and hearing testimony. Again, as a layperson without the appropriate medical training and expertise, the Veteran simply is not competent to render a probative opinion on a medical matter, to include a diagnosis. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Therefore, after consideration of all the evidence, the Board concludes that the claim for service connection for colon and digestive disorders, to include as secondary to asbestos exposure or chemical exposure, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claims, that doctrine is not applicable in this appeal. Withdrawn Claim In February 2009, the Veteran submitted a substantive appeal indicating that he wished to appeal all issues listed in the January 2009 statement of the case. This perfected his appeal to the claim of entitlement to service connection for a reproductive disorder. At an August 2009 hearing before the Board, however, the Veteran indicated that he wished to withdraw his appeal as to this issue. A substantive appeal may be withdrawn on the record at a hearing by the Veteran at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b). As the Veteran withdrew his appeal as to the issue of entitlement to service connection for a reproductive disorder, there remain no allegations of error of fact or law for appellate consideration. The Board therefore has no jurisdiction to review this issue. The claim must therefore be dismissed. ORDER Entitlement to service connection for colon and digestive disorders is denied. The appeal of the claim of entitlement to service connection for a reproductive disorder is dismissed. REMAND The Board finds that additional development is needed before it can adjudicate the Veteran's claims of entitlement to service connection for renal cancer, and for back, breathing, and skin disorders. With respect to the back disorder claim, the Veteran alleges that his disorder is secondary to his service-connected left knee disorder. In conjunction with his claim, he underwent a VA examination in August 2006 which revealed moderate spondylosis at T7 through T9, posterior bulging of the L3-4 and L4-5 with meylopathy, and mild degenerative joint disease of L1-L4. The examiner concluded that a back disorder was not caused by or a result of the Veteran's service-connected knee problem. Although the examiner concluded that a back disorder was not caused by the Veteran's left knee disorder, he did not address whether any current back disorder was aggravated by the Veteran's service-connected left knee disorder. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2009). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, a more definitive medical opinion on the question of whether a back disorder has been aggravated by the Veteran's service-connected left knee disorder is needed. The Veteran also contends that he is entitled to service connection for breathing disorders, renal cancer and a skin disorder due to exposure to asbestos and various chemical substances during active duty service. The Veteran's personnel records confirm that served as a track vehicle engineer during service. The Veteran testified at the August 2009 hearing that to his knowledge, he was not aware of any pre-service or post- service asbestos exposure. Post-service private treatment reports, however, indicate that the Veteran complained of occupational asbestos exposure. The medical evidence establishes current diagnoses of acanthosis nigricans, dysplastic nevi, asthma, mild interstitial lung disease with hyperinflated air sacs, and renal cell cancer. In a September 2009 letter, David L. Tolliver, D.O., concluded that the Veteran's benign and precancerous skin conditions were caused by direct skin exposure to solvents, diesel fuel and other chemicals during military service. In a September 2009 letter, Oscar F. Figueroa, M.D., concluded that the Veteran's asthma and mild lung disease were caused by chemical inhalation and asbestos during military service. Lastly, in an October 2009 letter, Bhasker R. Pujari, M.D., opined that it was more likely than not that the Veteran's renal cell cancer of the right kidney was caused by exposure to asbestos during military service. Given the private physicians opinions addressing the relationship between the appellant's skin and breathing disorders, as well as his renal cell cancer, to in-service asbestos and chemical exposure, the Board opines that VA examinations are warranted so that examiners can review the entire medical record, consider a complete history, and provide an informed opinion as to the relationship between any current lung disorder, renal cancer, and skin disorder and service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should contact Doctors Tolliver, Figueroa, and Pujari and request that they provide copies of all outpatient treatment records they have in their possession concerning their care of a lung disorder, renal cancer, and skin disorder. Any records received must be added to the claims folder. 2. Thereafter, the Veteran should be scheduled for pulmonary, orthopedic, renal, and dermatological examinations to be conducted by physicians. The claims folder must be provided to and reviewed by the examiners. Following the examination and a review of the claims file the pulmonologist must opine whether it is at least as likely as not (i.e., is there a 50/50 chance) that any diagnosed respiratory disorder is attributable to the appellant's claimed in-service exposure to asbestos or other chemical exposure. A complete rationale for any opinion offered must be provided. Following the examination and a review of the claims file the dermatologist must opine whether it is at least as likely as not (i.e., is there a 50/50 chance) that any diagnosed skin disorder is attributable to the appellant's claimed in-service exposure to asbestos or other chemical exposure. A complete rationale for any opinion offered must be provided. Following the examination and a review of the claims file the renal specialist must opine whether it is at least as likely as not (i.e., is there a 50/50 chance) that renal cancer is attributable to the appellant's claimed in-service exposure to asbestos or other chemical exposure. A complete rationale for any opinion offered must be provided. Following the examination and a review of the claims file the orthopedist must opine whether it is at least as likely as not (i.e., is there a 50/50 chance) that any diagnosed back disorder is aggravated by the appellant's left knee medial collateral ligament strain. A complete rationale for any opinion offered must be provided. The claims file, including a complete copy of this remand, must be made available to the examiner for review of the Veteran's pertinent medical and other history. 3. Thereafter, the RO must review the medical examination reports to ensure that they are in complete compliance with the directives of this remand. If they are deficient in any manner, the RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the RO should readjudicate the claims of entitlement to service connection for a back disorder, breathing disorders, renal cancer, and a skin disorder. If any benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs