Citation Nr: 1117201 Decision Date: 05/04/11 Archive Date: 05/10/11 DOCKET NO. 09-24 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for follicular lymphoma, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on a combination of active duty, active duty for training, and inactive duty training with the United States Naval Reserves from October 1959 to May 1965 and served on active duty with the United States Navy from May 1965 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In his July 2009 substantive appeal, the Veteran requested that he be scheduled for a hearing before a Member of the Board at his local RO. His hearing was scheduled for February 2011, and he was sent a notice letter in December 2010. The appellant did not report for the hearing, and he has neither requested a new hearing nor shown good cause for his failure to report. Therefore, his hearing request is deemed withdrawn. The issue of entitlement to service connection for mesothelioma has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence is against the finding that the Veteran's follicular lymphoma had its onset in service or within one year of separation or is etiologically related to any incident, disease, or exposure during the Veteran's active service. CONCLUSION OF LAW Follicular lymphoma was not incurred in or aggravated by active service, to include as a result of exposure to asbestos, and may not be presumed to have been caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2010)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes an evidentiary development letter dated in December 2008 in which the RO advised the appellant of the evidence needed to substantiate his claim, to include as a result of asbestos exposure. This letter advised the Veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. This letter also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records, service personnel records, and VA medical records. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board notes that the Veteran has not been scheduled for or provided with a VA examination for the claim on appeal. However, as will be discussed in more detail below, the Board finds that an examination is not necessary to decide this claim due to a lack of credible lay or medical evidence of a nexus between the Veteran's in-service asbestos exposure and his follicular lymphoma. Therefore, a VA examination is not warranted for this claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for follicular lymphoma. He essentially contends that this disability developed as a result of his in-service asbestos exposure. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (2002); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as malignant tumors, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea; end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the 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. Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. Moreover, the risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is preservice or post service occupational or other asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9.f. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the Court also indicated that, while the veteran, as a lay person, is not competent to testify as to the cause of his disease, he is competent to testify as to the facts of his asbestos exposure. See McGinty, 4 Vet. App. at 432 (1993). In the case at hand, the Veteran's service personnel records reflect that he served in the boiler rooms aboard the USS Calvert, USS Paul Revere, and USS Cook. Given the Veteran's boiler room duties, the Board will presume for purposes of this decision that the Veteran was exposed to asbestos in service. The evidence of record also reflects that the Veteran has a current disability, as his VA medical records reflect that he was diagnosed with follicular lymphoma in July 2008. An August 2008 record more specifically describes this disability as low grade non-Hodgkin's lymphoma found on a left inguinal lymph node biopsy. Service connection, however, must ultimately be denied based on an absence of competent nexus evidence linking the Veteran's follicular lymphoma to his in-service asbestos exposure. The closest indication of nexus of record is the Veteran's September 2008 assertion that "After numerous tests the [VA] Doctors have determined that the cancer is due to exposure to asbestos." In this regard, the Board recognizes that a lay person can sometimes be competent to relate what they have been told by a treating health care provider. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board has thoroughly reviewed the Veteran's VA medical records, including those from shortly before the September 2008 statement and those from after that date, and can find no reference to a possible relationship between the Veteran's in-service asbestos exposure and his follicular lymphoma. In fact, a September 2008 VA medical record completed by an oncologist and dated shortly after the Veteran's statement indicates that the Veteran has a presacral mass of unknown etiology, while the Veteran's VA medical records are otherwise silent as to the likely cause of the Veteran's follicular lymphoma. Furthermore, other than a few tangential references to treatment for mesothelioma, the Veteran's VA medical records do not discuss his asbestos exposure or attribute any current disability to such exposure. In weighing the credibility of the Veteran's assertion that he was told by his doctors that his disability was due to asbestos exposure, the Board has considered the holding of Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006). In Buchanan, the United States Court of Appeals for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. Here, however, the Board is not relying merely on an absence of discussion as to the issue of asbestos exposure. Rather, the Board is relying in part on the absence of any such reference, and also on the fact that in a record dated shortly after the Veteran's statement that his disability had been attributed to asbestos, a treating oncologist specifically referred to his claimed disability as being of unknown etiology. For these reasons, the Board finds the Veteran's assertion that his disability has been linked to asbestos by his treating physicians not credible. Furthermore, the Board also notes that the Veteran has not submitted any medical treatise evidence indicating a possible relationship between the follicular lymphoma of his left inguinal area and his in-service asbestos exposure. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). As to the Veteran's own belief that his follicular lymphoma is related to asbestos exposure, the Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, as a lay person, the Veteran is not competent to offer testimony on a complex medical question such as linking his follicular lymphoma to in-service asbestos exposure that occurred more than four decades earlier. Thus, in the absence of competent medical evidence of a link between the Veteran's follicular lymphoma and his in-service asbestos exposure, service connection based on asbestos exposure is not warranted. The Board has also considered whether service connection may be granted under a different theory of entitlement. The Board finds, however, that direct service connection is not available based on an absence of follicular lymphoma in service, and on the absence of credible lay evidence or competent medical evidence otherwise linking the Veteran's follicular lymphoma to his military service. Presumptive service connection must also be denied based on an absence of evidence of follicular lymphoma in the year following the Veteran's separation from service. Finally, the Board has considered whether the Veteran may be granted service connection for follicular lymphoma (to include non-Hodgkin's lymphoma) on a presumptive basis based on in-service herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e) (2010). The Board finds, however, that service connection is not available on this basis due to a lack of evidence of herbicide exposure. Veterans who served in the Republic of Vietnam are presumed to have been exposed to Agent Orange 38 C.F.R. § 3.307(a)(6)(iii). "Service in Vietnam' means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA's requirement that a Veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in Vietnam). In the case at hand, the Veteran is confirmed to have served off the shores of Vietnam. He has not, however, indicated that he stepped foot in Vietnam. In an undated personal statement submitted in connection with a different claim, the Veteran described having been attacked from the shoreline when his ship was entering the port at Da Nang. He did not, however, suggest that he actually disembarked in Da Nang. Nor has such service been demonstrated by the record. Therefore, entitlement to service connection for non-Hodgkin's lymphoma based on herbicide exposure must be denied. In summary, the Board finds that a preponderance of the evidence is against finding a link between the Veteran's follicular lymphoma and his military service, to include any in-service asbestos or herbicide exposure. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for follicular lymphoma is not warranted. ORDER Entitlement to service connection for follicular lymphoma, claimed as due to asbestos exposure, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs