Citation Nr: 1106086 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 06-18 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for plasmacytoma of the left sinus cavity, claimed as due to asbestos exposure. 2. Entitlement to service connection for plasmacytoma of the left submandible, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: James G. Fausone, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to August 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in February 2008; a transcript of the hearing is associated with the claims file. The Board issued a decision in June 2008 that denied the claims on appeal. The Veteran thereupon appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2009 the Court issued an Order granting a joint motion of the parties (Joint Motion) and remanded the case to the Board for further action. In April 2010 the Board remanded the case to the RO for further development in compliance with the Court's Order. The file has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). FINDING OF FACT Plasmacytomas of the left sinus cavity and left submandible were not present within a year of the Veteran's discharge from service and are not etiologically related to service. CONCLUSIONS OF LAW 1. Plasmacytoma of the left sinus cavity was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. Plasmacytoma of the left submandible was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran is seeking service connection for plasmacytoma of the left sinus cavity and left submandible, which he contends are due to his exposure to asbestos in service. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although full VCAA notice was not provided to the Veteran until after the initial adjudication of the claims, Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims based on all evidence of record. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board further notes that the VCAA letter sent to the Veteran in June 2005 and an additional letter sent in July 2005 reflect that the RO conducted development consistent with DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988). The Veteran responded to the asbestos questionnaire in May 2004. The most recent Joint Motion, as incorporated by the Court's Order, expressed no issues regarding the duty to notify. The Board is confident that if any additional VCAA defects had existed in its June 2008 decision such defects would have been brought to the Court's attention in the interest of judicial economy. The Board also notes that service treatment records and pertinent post-service medical records have been obtained. The Board remanded the claims for medical examination, and examination by a physician was performed in July 2010. The Board has reviewed the examination report and finds it to substantially comply with the requirements articulated in the Board's remand; see D'Aries v. Peake, 22 Vet. App. 97 (2008). Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate either claim, and the Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more of continuous, active service during a period of war or after or after December 31, 1946, and manifests a malignant tumor to a degree of 10 percent within one year from date of termination of 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, 1110, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). There is no specific statutory guidance with regard to asbestos- related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) 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 of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols in these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, VA must determine whether service records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between that exposure and the claimed disease. M21-1, Part IV, 7.21(d)(1) (October 3, 1997). Radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part IV, 7.21(a)(1) (October 3, 1997). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part IV, 7.21(c) (October 3, 1997). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacturing and servicing of friction products such as clutch facings and brake linings, manufacture and installations of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21- 1, Part IV, 7.21(b)(1) (October 3, 1997). 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 VAOPGCPREC No. 04-00. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Service treatment records (STRs) show no evidence of respiratory symptoms during service. A chest X-ray in August 1955, performed in conjunction with the Veteran's separation physical, was negative. Report of medical examination in August 1955 shows clinical evaluation of the sinuses, the nose and mouth, and the lungs and chest as "normal." The Veteran's DD Form 214 establishes that he spent 3 years and 9 months overseas or on sea duty, with his most significant assignment having been aboard the destroyer U.S.S. Ingraham, DD 694. Service personnel records show the Veteran served on the Ingraham with few interruptions from December 1951 to July 1955. The Veteran does not assert, and the evidence does not show, that the disabilities at issue were manifested in service or within a year after discharge from service. Accordingly, presumptive service connection under 38 C.F.R. § 3.309(a) is not for application. Treatment records from H. Lee Moffett Cancer Center and Research Institute dating from September 1994 through July 1998 show treatment for plasmacytoma of the nasal cavity. Treatment records are silent in regard to any association between the nasal plasmacytoma and active service in general or asbestos exposure in particular. The Veteran presented to the VA primary care clinic (PCC) in May 2002 to establish entitlement to care. He was noted to have a history of plasmacytoma of the left sphenoid sinus in 1993. It was also noted one of the Veteran's brothers had died of brain cancer and two other brothers had died of pancreatic cancer. VA treatment records show the Veteran developed a new left submandibular mass in September 2002. The record includes a VA oncology note dated in May 2003. The Veteran reported a history of asbestos exposure and previous treatment for nasal plasmacytoma. Examination showed a left submandibular mass consistent with plasmacytoma but a diffuse process multiple myeloma was to be ruled out. The Veteran was referred for further studies, and a VA oncology note dated in July 2003 shows a clinical impression of recurrent solitary plasmacytoma of the left submandibular space. He continued thereafter to be treated by the VA hematology/oncology clinic through March 2004; the treatment records are silent in regard to an association between the submandibular plasmacytoma and service. Treatment records from Dr. CAB dating from July 2003 through October 2004 show treatment for submandibular plasmacytoma. Per the history provided by Dr. CAB, the Veteran's history of plasmacytoma dates from 1993 when he developed nosebleeds and was found to have a left frontal sinus mass, later revealed to be plasmacytoma. He developed lesions under the left mandible in approximately November 2002. There is nothing in the treatment records from Dr. CAB showing any association between the submandibular plasmacytoma and either active service or asbestos exposure. In May 2004 the Veteran submitted a VA asbestos exposure questionnaire in which he reported serving aboard the USS Ingraham from December 1951 to August 1955, a period that included two overhauls during which he remained aboard the ship. He denied occupational exposure to asbestos after discharge from service. The Veteran submitted a Statement in Support of Claim in June 2004 asserting that his duties aboard the Ingraham required him to inspect all areas of the ship. He stated the Ingraham had compartment bulkheads that were covered with padded asbestos and all pipes and wiring were coated with asbestos. In June 2005 the Veteran submitted a Notice of Disagreement (NOD) enclosing a paragraph from an unidentified treatise stating that cancers of the lung, gastrointestinal tract, larynx, pharynx and urogenital systems (other than prostate) are associated with asbestos exposure. The Veteran posited that if cancers of the larynx and pharynx are associated with asbestos, then logically cancer of the sinus and mandible should be as well. The Veteran submitted a letter in August 2005 asserting that ships of the Ingraham era used asbestos as the primary fire retardant, and asbestos was accordingly present in high concentrations throughout the ship. The Veteran denied a history of heavy smoking and denied occupational exposure to asbestos after discharge from service. The Veteran testified before the Board in February 2008 that he was in good health prior to service. During service he was a radar operator aboard the USS Ingraham; his primary work area was in the Combat Information Center (CIC); he was also compartment master throughout the ship and stood watch. The Ingraham was a Sumner class destroyer that used asbestos to insulate the steam pipes and also used asbestos throughout the bulkheads. The compartment in which the Veteran lived was right above the ammunition storage area, which he also believed to be protected by asbestos. The Veteran's sinus disorder was diagnosed in approximately 1992 although he experienced occasional nosebleeds, sometimes heavy, prior to that date. His submandibular disorder was diagnosed in approximately 2000. His treating physicians believed the cancers to be related to some environmental cause although without citing asbestos specifically. He cited to a treatise entitled Everyone's Guide to Cancer Therapy, pages 676- 677 as supporting his theory of causation. The file contains an extract from Everyone's Guide to Cancer Therapy (fourth edition) as cited by the Veteran in his testimony. The section referenced by the Veteran is entitled "Multiple Myelomas." In relevant part, page 677 has a paragraph titled "what causes it" that states the cause of multiple myeloma is not known, although exposure to radiation may be a factor in some cases. There is little evidence that chemicals cause myelomas in humans, although some reports have linked multiple myeloma with benzene or asbestos. There have been reports of two or more family members with multiple myeloma, but the genetic influence is minimal. There is no evidence that allergies, chronic infections or other immune-stimulating conditions play a role. VA oncology notes show that in 2008 the Veteran developed lesions of the left scapula and left humerus suggestive of multiple myeloma rather than solitary plasmacytoma. Computed tomography (CT) scan in October 2008 was positive for myeloma involvement of both scapulae, the right sixth rib and the left seventh rib. The Veteran had a VA medical examination in July 2010, performed by a physician who reviewed the claims file. The examiner noted the Veteran's documented medical history in detail, as well as the Veteran's subjective report of his symptoms. The Veteran asserted he believed he had been exposed to asbestos in service, and that on one occasion he was made to wear a tag and to be on an upper deck while the lower deck was being washed with an unknown substance. The Veteran believed the exercise was designed to determine if the tags were able to pick up radiation exposure; however, he did not believe he had been personally exposed to any radiation during the test. The examiner performed a clinical examination of the Veteran and noted observations in detail. The examiner diagnosed plasmacytomas of the left sinus cavity and left submandibular, status post radiation therapy with recurrence in 2004 and progression to light chain myeloma in 2008. The examiner stated an opinion that it is less likely than not that the Veteran's plasmacytomas with progression to multiple myelomas are related to active service, to include exposure to asbestos. The examiner stated as rationale that careful review of medical literature did not find a causal relationship between asbestos and plasmacytoma/multiple myeloma. The examiner cited literature review asserting that exposure to ionizing radiation is the most convincing risk factor for multiple myelomas; environmental and occupational exposures have been implicated in the etiology of multiple myeloma but the role of occupational exposures to the risk of multiple myeloma development remains unclear. In January 2011 the Veteran's representative submitted an internet article on multiple myelomas. In relevant part, the article states the causes of multiple myeloma have not been determined, but a number of associations have been identified: (1) decreased immune system functioning (the immune systems of older individuals may be less efficient at detecting and destroying cancer cells); (2) genetic (hereditary) factors, suggested by the increased incidence in some ethnic groups and among family members; (3) occupational factors, suggested by the increased incidence among agricultural, petroleum, wood and leather workers and cosmetologists; (4) long-term exposure to herbicides, pesticides, petroleum products, heavy metals, plastics, and dusts such as asbestos; (5) radiation exposure, as among Japanese atomic bomb survivors, nuclear weapons workers, and medical personnel such as radiologists; (6) Kaposi's sarcoma- associated herpes virus, found in the blood and bone marrow cells of many multiple myeloma patients (emphasis by the Veteran's representative). In addition to the treatise cited above, the Veteran's representative asserted that the Examination Protocol for Exposure to Asbestos by the U.S. Department of Homeland Security states that asbestos exposure can cause asbestosis, bronchogenic carcinomas, mesothelioma and gastric carcinoma; it has also been associated with multiple myeloma and renal carcinoma. Thus, the Veteran's representative asserts that the Department of Homeland Security has advised its examiners to watch for multiple myeloma when examining those who have been exposed to asbestos. As noted above, per with asbestos-related claims VA must determine whether service records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between that exposure and the claimed disease. See M21-1, Part IV, 7.21(d)(1) (October 3, 1997). As a threshold matter, the Veteran's service records do not demonstrate asbestos exposure. He did not serve in an occupational specialty cited in M21-1 Part IV as an occupation involving exposure to asbestos. The Veteran is shown to have served aboard a ship, but there is no presumption that a veteran was exposed to asbestos in service by reason of having been on a ship. Dyment, 13 Vet. App. 141; aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000 (April 13, 2000). The Veteran has asserted his belief that Sumner-class destroyers such as the Ingraham had high concentrations of asbestos, but he has provided no objective evidence supporting such belief, nor has he explained why he feels that the Ingraham had asbestos versus some other fire retardant. The Board cannot find any point in the adjudication of this claim in which VA (either the RO or the Board) conceded the Veteran was exposed to asbestos during service, nor does the Board so concede now. Further, the preponderance of the evidence establishes the Veteran's plasmacytomas are not related to asbestos exposure. Neither plasmacytoma nor multiple myeloma is a disorder cited by the M21-1 as associated with asbestos exposure. Moreover, the VA examiner who examined the Veteran and reviewed the Veteran's pertinent history, stated it is less likely than not that the Veteran's plasmacytomas are related to service, to include asbestos exposure. The physician also properly supported her opinion. There is no contrary medical opinion of record. The Veteran has submitted treatise articles asserting a possible association between asbestos exposure and multiple myeloma. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999) (emphasis added). In this case the treatise articles are not combined with an opinion by a medical professional showing the associations cited in the treatises apply in this case, and in fact the uncontroverted medical opinion by the VA examiner (who had access to the claims file as well as the examiner's own medical library) is to the contrary. The Veteran has asserted his personal belief that his claimed plasmacytomas are related to active service. However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case the competent and uncontroverted medical opinion addressing etiology is against a relationship between the claimed disorders and service. Based on the evidence and analysis above the Board finds the criteria for service connection plasmacytomas of the left sinus cavity and the left submandible are not met. Accordingly the claims must be denied. Because the evidence preponderates against the claims, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for plasmacytoma of the left sinus cavity, including as a result of asbestos exposure, is denied. Entitlement to service connection for plasmacytoma of the left submandible, claimed as a result of asbestos exposure, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs