Citation Nr: 1025397 Decision Date: 07/08/10 Archive Date: 07/19/10 DOCKET NO. 08-05 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for asbestos-related lung disease. 2. Entitlement to service connection for lung cancer. 3. Entitlement to service connection for colon cancer. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had recognized active service in the U.S. Army from September 1946 to May 1947. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2010, the Veteran testified at a local RO hearing before the undersigned Acting Veterans Law Judge sitting at Boston, Massachusetts. A transcript of that proceeding is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served in the U.S. Navy Reserves from 1944 to 1945 and he had active service in the U.S. Army from September 1946 to May 1947. 2. The Veteran's work in the Pearl Harbor Naval Shipyard was during the course of preservice civilian employment, as a result of which he was exposed to asbestos but he was not exposed to asbestos during his active duty in the Army. 3. The Veteran's current asbestosis and postoperative residuals of cancer of the right lung are due to his asbestos exposure during the course of his preservice civilian employment in the Pearl Harbor Naval Shipyard. 4. The Veteran postoperative residuals of colon cancer, which first manifested decades after his military service, are unrelated to his past preservice asbestos exposure or any other incidence of his active military service. CONCLUSIONS OF LAW 1. Asbestos-related lung disease, due to exposure to asbestos, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009). 2. Lung cancer, due to exposure to asbestos, was not incurred in or aggravated by service and lung cancer did not manifest within one year of the Veteran's discharge from active duty. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). 3. Colon cancer was not incurred in or aggravated by service, is unrelated to alleged inservice asbestos exposure, and colon cancer did not manifest within one year of the Veteran's discharge from active duty. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify When a complete or substantially complete application for benefits is received, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide (Type One, Type Two, and Type Three, respectively). 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided with pre- adjudication VCAA notice by letters, dated in July 2006 and January 2007. He was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. Also, he was notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. The July 2006 RO letter informed him of the means by which VA determined disability ratings and effective dates, in keeping with Dingess, 19 Vet. App. at 473. And, all of this was prior to the initial adjudication of the claims by the RO in March 2007. As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claims. The RO has obtained the Veteran's service treatment records as well as private treatment records. He was afforded a VA examination in February 2007. He testified at a personal hearing before the undersigned Acting Veterans Law Judge at the May 2010 travel Board hearing. The Veteran has not identified any additionally available evidence for consideration in his appeal. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background Received from the National Personnel Records Center (NPRC) is a copy of a military document reflecting that the Veteran was inducted into the U.S. Navy on December 6, 1944, as "AS USN-1" in accordance with the Selective Training and Service Act of 1940. On that same date he voluntarily enlisted as "AS V-6" in the "USNR" to serve for a period of 2 years. A copy of a December 6, 1944, examination for induction reflects that the Veteran's respiratory system was normal. A chest X-ray was negative. Another form indicates that he was discharged from the U.S. Naval Reserve on September 21, 1945, under honorable conditions and that he had not performed any active duty. On file is a copy of a Certification of Military Service which reflects that the Veteran was a member of the U.S. Navy from December 6, 1941, until September 21, 1945, and his discharge was under honorable conditions. It was noted that he had no active service other than for training purposes. The Veteran's WD AGO Form 53-55 reflects that he entered the Army on September 23, 1946, and was discharge on May 27, 1947. His military occupational specialty was a motion picture projectionist. He was qualified as a rifle marksman. He was awarded the Army of Occupation Medal and the World War II Victory Medal. His September 1946 entrance examination revealed his lungs were normal and that a chest X-ray was negative. In December 1946 he had nasopharyngitis. His service discharge examination in May 1947 noted that he had been seen in February 1947 for diarrhea in Italy. On examination his lungs were normal and a chest X-ray was negative. WD AGO Form 100, Separation - Qualification Record, of the U.S. Army reflects the Veteran's service in the Army from September 1946 to May 1947. It was also noted that he had been employed at the Pearl Harbor Navy Yard for 4 years. The Veteran has submitted a copy of a June 5, 1948, Application for Refund of Retirement Deductions which is on a U.S. Civil Service Commission form. This shows that he worked as a gas cutter and burner with the Public Works Department. The division, bureau, force or service was the Pearl Harbor Navy Yard - Navy Department. The date of January 1, 1947, listed as the date of termination of services is crossed out and in place thereof is a handwritten notation of September 23, 1946. In August 1993 Dr. Solomon reported that a chest X-ray was consistent with the Veteran's prior study, showing evidence of prior asbestos exposure but based on a radiologist's reading there was no evidence of progression. A September 1993 operative report from the Beth Israel Hospital shows that the Veteran had adenocarcinoma of the rectum for which he underwent lower anterior resection. The discharge summary, in October 1993, notes that he had generally been in good health. Ten years prior to admission he had developed an unrelenting cough and, in the course of a work-up, he was found to have bilateral pleural thickening with calcifications, secondary to asbestos exposure. He had worked in shipyards during World War II. Since then, particularly in the fall and spring, he would develop a bronchial condition, after an upper respiratory infection. He also had a long history of cigarette smoking but had not smoked for over 20 years. He had had a cerebrovascular accident in 1986. The discharge diagnoses were adenocarcinoma of the rectum; cardiovascular disease, status post cerebrovascular accident; pleural asbestosis; and chronic bronchitis. He had had a resection of the lower anterior rectum in September 1993. A report of chest X-rays in April 1994 reflects that the Veteran had bulky circumscribed pleural thickening along the lateral chest walls and diaphragm with focal calcification characteristic of asbestos-related diagnosis. He had fine linear abnormalities at both lung bases most likely due to interstitial fibrosis. A July 1994 operative report from the Beth Israel Hospital shows that the Veteran had lung carcinoma for which he had a right thoracotomy with wedge resection of a right upper lobe mass. A December 1995 clinical record from Dr. Murphy noted that the Veteran had a medical history that was notable for asbestosis. He had had colon surgery in 1993 and right lung surgery in 1994. A January 1996 letter from Dr. Dasche, to another physician, stated that the Veteran had a history of bronchioaveolar cancer and colon cancer, without known metastases. He had been employed in the family scrap business for many years. A January 1998 report of an MRI of the Veteran's brain noted that he had a history of lung carcinoma and colon carcinoma. A June 1998 report of a lumbosacral MR scan from the Beth Israel Hospital noted that the Veteran had a history of lung and colon cancer. A July 1998 report of a bone scan from the Beth Israel Hospital noted that the Veteran had a history of colon cancer. A January 1999 CT scan of the Veteran's chest reflects that there was an indication that he had had lung cancer in the past. There were again seen multiple bilateral calcified pleural plaques on the diaphragmatic pleura consistent with asbestos-related pleural disease, which were not significantly changed from July 1994. A right upper lobe nodule had been removed with residual scarring and retained surgical suture material. On VA examination in February 2007 it was noted that the Veteran was retired after having worked for many years in a junkyard. He had been in the U.S. Navy from 1942 until 1946. He had been assigned to the Navy Yard where he was employed as a gas and cutter and burner for repair of Navy ships dockside. He stated that during that time he was exposed to asbestos and that this had been discovered after he had left the service. He stated that from 1942 until 1946 his rank had been an apprentice seaman. He had been in the Army from 1946 until 1947. He reported that following service he had developed problems with his lungs. He had been seen in about 1993 at which time he was told that he had asbestosis of his lungs. He subsequently developed cancer in his right lung, for which he had a lobectomy in 1994 at the Beth Israel Hospital. He stated that he had no problems with hemorrhoids during service but that in the 1950s he developed problems with hemorrhoids and was seen at the Chelsea Hospital in Massachusetts where he underwent a hemorrhoidectomy. He had no complaints referable to hemorrhoids since that time and no rectal bleeding, constipation or other problems. He reported having developed colon cancer in 1993 for which he had a colectomy at the Beth Israel Hospital with no recurrence of the colon cancer. After a physical examination the diagnosis was that he had developed asbestosis of his lung due to exposure to asbestos at the Pearl Harbor Shipyard when working in the Navy yard, which resulted in cancer of the lobe of his right lung. There was apparently a definite relationship between asbestosis and the development of cancer of the lung. Also, his colon cancer had occurred after he had been out of the service for at least 10 years and cancer of the colon was not usually associated with a past history of asbestosis and was not related to that disease. In a handwritten letter the Veteran reported that he had worked at the Pearl Harbor Navy Yard from September 6, 1942, to September 23, 1946, and that he had entered the U.S. Army on September 23, 1946, and was eventually discharged on May 24, 1947. He also reported that he had been inducted into the U.S. Naval Reserves on December 6, 1944, and had been discharged on December 21, 1945. He had never left his job at Pearl Harbor, until 1946 when he joined the Army. At the May 2010 travel Board hearing the Veteran's service representative stated that after the December 1941 attack on Pearl Harbor the Veteran had gone to Hawaii and worked at the shipyard there. In the meantime, he was also a member of the Navy Reserve. While at the shipyard, doing repair work, he was exposed to asbestos and now had cancer of the lung and colon, as well as asbestosis. Page 2 of the transcript of that hearing. The Veteran testified that he had been working at a shipyard, Bethlehem Steel, when he heard that volunteers were being accepted to work at the Pearl Harbor Navy Yard. He had volunteered. He had gone to Pearl Harbor in 1942 and stayed there until about 1946. While he was there he was inducted into the U.S. Navy Reserves and they sent him back to work repairing the ships damaged in the December 1941 attack. He had been a gas cutter and a burner, cutting metal out and putting metal back in again. He had worked seven days a week. He had worked there until 1946 but he had been called into the Naval Reserve in 1945. He had then gone home on leave and while on leave the war ended. He had gone to San Francisco to be discharged from the Navy but was told he had to be discharged in Hawaii. After he returned to Hawaii, and after staying there a short while, he had volunteered for induction into the Army, in which he remained until eventually discharged from active service. Thereafter, he had asbestos in his lungs and had had a lobe of one of his lungs removed. Page 3. The Veteran testified that his exposure to asbestos in the Pearl Harbor Navy Yard led to his asbestos lung disease and his lung cancer. Pages 3 and 4. It also led to his colon cancer. X-rays have shown that he still has asbestos in his lungs. Page 4. Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, such as cancer, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). If some of these elements cannot be established, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology requires a show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. The Board must find whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). M21-1 does not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); see also 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); Ashford v. Brown, 10 Vet. App. 120 (1997). Thus, in claims of service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000), it was held as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. Here, the evidence shows that the Veteran had asbestosis and colon cancer in 1993, although he also had a chronic and unrelenting cough as much as 10 years earlier. He had surgery for colon cancer in 1993 and in 1994 for lung cancer. The opinion of all medical examiners has been that the asbestosis and lung cancer are due to exposure to asbestos in the Pearl Harbor Navy Shipyard but the only opinion on file as to the etiology of the colon cancer simply does not link it with any exposure to asbestos. However, here there is no contention or evidence that the Veteran was exposed to asbestos during his active service in the Army from September 1946 to May 1947. Rather, the Veteran contends that he was exposed to asbestos in the Pearl Harbor Navy Shipyard while he was in the U.S. Navy Reserves. Despite this contention, it must be noted that the Veteran never performed any active duty while in the Navy Reserves and had no more than duty for training. On the other hand, the Veteran testified that he had worked for four years in the Pearl Harbor Navy Shipyard. However, this is not shown to be in any was connected to his having been in the Navy Reserves but, rather, his being in the Pearl Harbor Navy Shipyard was part of his civilian employment. Exposure to asbestos as a civilian prior to his recognized active duty in the Army (during which he had not asbestos exposure) does not serve as a basis for an award of VA disability compensation benefits. In sum, the Veteran's exposure to asbestos was prior to his recognized active duty was a result of his civilian employment and is unrelated to any military service in the Navy Reserves or his later active duty in the Army. Thus, service connection for asbestos-related lung disease, lung cancer, and colon cancer must be denied. ORDER Service connection for asbestos-related lung disease, lung cancer, and colon cancer is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs