Citation Nr: 1202555 Decision Date: 01/24/12 Archive Date: 02/07/12 DOCKET NO. 10-22 222 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for claimed leukemia, to include as secondary to in-service exposure to herbicides or asbestos. 2. Entitlement to service connection for claimed prostate cancer, to include as secondary to in-service exposure to herbicides or asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from August 1960 to September 1963 and from September 1964 to March 1967. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in September 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. The issue of service connection for prostate cancer is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings of chronic myeloid leukemia during service or for many years thereafter. 2. The Veteran is not shown to have performed active service in the Republic of Vietnam. 3. There is no credible evidence that the Veteran was exposed to an herbicide agent in service. 4. The currently demonstrated chronic myeloid leukemia is not shown to be due to Agent Orange exposure, asbestos exposure, or another event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's disability manifested by chronic myeloid leukemia is not due to disease or injury that was incurred in or aggravated by active military service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), 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. The law and regulations 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 VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to 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, supra. In the present case, VA issued a VCAA notice letter to the Veteran in March 2008, prior to the initial adjudication of his claim. This letter informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence. The March 2008 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA. VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims. In particular, the record contains the Veteran's service treatment records, service personnel records, private treatment medical records, deck logs from the USS Coral Sea, and a VA medical opinion. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As the Board will discuss, VA obtained a medical opinion in March 2010. The report of this opinion reflects that the examiner reviewed the Veteran's past medical history, documented his current complaints, and rendered an appropriate medical opinion consistent with the remainder of the evidence of record. A supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the medical opinion is adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2011). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2011). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He exercised the option of a personal hearing and was afforded one in September 2010 as detailed in the Introduction. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Law and Regulations 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, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for the claimed disorder, there must be (1) competent and credible 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) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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). Here, the Veteran contends that he developed leukemia , in part, as a result of in-service exposure to herbicides (Agent Orange) and asbestos. See, e.g., the September 2010 hearing. VA regulations provide presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent or greater within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. They also provide presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines warrants a presumption of service connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2011). These diseases include chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type II (also known as adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease (including coronary artery disease), Parkinson's disease and B-cell leukemias (such as hairy cell leukemia). 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586-57,589 (1996); 72 Fed. Reg. 32,345-32, 407 (Jun. 12, 2007). 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). With respect to the Veteran's asbestos theory, the Board notes that 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, Veteran's Benefits Administration, 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. 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). III. Analysis The Veteran asserts that he developed leukemia as a result of his in-service exposure to Agent Orange, asbestos, diesel fumes and/or Freon gas. See the September 2010 hearing transcript; see also a September 2009 statement. Upon review, the Board notes that the Veteran's service treatment records are negative for any complaints, findings or diagnosis of leukemia. With respect to the Veteran's alleged Agent Orange exposure, as noted, such exposure is presumed in veterans who set foot in Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii) (2011) ["Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." (Emphasis added by the Board.)] In this case, however, the Veteran has not alleged, nor does the record indicate, that he ever set foot in the Republic of Vietnam. In fact, during the September 2010 hearing, the Veteran specifically acknowledged that he had not set foot in the Republic of Vietnam. See the hearing transcript, page 3. Instead, the Veteran argues that he was exposed to Agent Orange as a result of his service in "the waters of Vietnam." See the May 2010 substantive appeal. The Board notes, however, that the Veteran's service off the coast of Vietnam does not constitute 'service in the Republic of Vietnam.' See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) [§ 3.307(a)(6)(iii) requires a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption]. Accordingly, the Veteran is not presumed to have been exposed to herbicides based on the location of his military service. Additionally, during the September 2010 hearing, the Veteran stated that his "primary duties on the [USS] Coral Sea" included maintaining and repairing the air condition and refrigeration systems, and that he "took care of all the pilots' air conditioning." He argued that if "the pilots were subject[ed] to [Agent Orange], then . . . [he] probably was too." At this juncture the Board notes that the Veteran is competent to give evidence about what he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran can also attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran appears to be arguing that aircraft which passed over areas of herbicide use must be contaminated and therefore his maintenance work on such aircraft resulted in his exposure to herbicides. Significantly, the Veteran has not alleged that he saw herbicides on aircraft, or cargo from such aircraft, or that he came in contact with a substance that he knew or even suspected to be an herbicide. As a result, the Veteran is not reporting what he observed as a lay person, but his conjecture regarding the environment aboard the USS Coral Sea. The Board finds that this is not competent lay evidence. See Washington. The RO has obtained a copy of the USS Coral Sea's deck logs which indicate that aircraft routinely launched and recovered aircraft, but do not reference any herbicides or Agent Orange exposure. In short, there is no competent evidence to support a finding that the Veteran was exposed to herbicides while serving aboard the Coral Sea in the waters off the coast of the Republic of Vietnam. In short, the Veteran's statements regarding herbicide exposure while aboard the USS Coral Sea are not competent. While the Veteran served in the vicinity of the Republic of Vietnam, this is not sufficient to establish herbicide exposure. See Haas, supra. In sum, the Board finds that the Veteran did not have herbicide exposure as a result of his service aboard the Coral Sea. With respect to the Veteran's contentions that he was exposed to asbestos, diesel fumes and Freon gas, the Veteran's service records indicate that his primary military occupational specialty (MOS) was a machinist's mate. During the hearing, the Veteran testified that, while stationed on the USS Coral Sea he worked on "all aspects of the engineering department from boilers to pumps, to . . . air conditioning and refrigeration, machine shop, [essentially] the whole works in engineering." It was specifically noted that he frequently handled the asbestos insulation surrounding the ship's pipes and boiler. Accordingly, based on the nature of the Veteran's MOS, the Board finds that his statements of exposure to Freon, diesel fumes and asbestos are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). An in-service injury has been demonstrated. The second Shedden element has therefore been met. Following his separation from service, the record indicates that the Veteran was diagnosed with chronic myeloid leukemia in June 2003. A current disability, the first Shedden element, has therefore been demonstrated. With respect to the third Shedden element, the RO obtained a VA medical opinion in March 2010. After reviewing the Veteran's claims folder, the VA examiner indicated that "there [was] no evidence in the literature that exposure to any type of chemical agents or asbestos can lead to the development of chronic myelogenous leukemia." As a result, the examiner concluded that it was "not likely" that the Veteran's leukemia was a result of his military service. During the September 2010 hearing, the Veteran testified that a private health care provider had informed him that his leukemia was the result of his exposure to diesel fumes. However, the record does not contain a statement from a physician indicating as much. In this capacity, the Board observes that the Veteran's account of what a health care provider purportedly said, filtered as it is through a lay person's sensibilities, is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). To the extent that the Veteran contends that a relationship exists between his diagnosed leukemia and the claimed exposures during service, any such lay statements offered in support of the claim do not constitute competent evidence and cannot be accepted by the Board. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Indeed, the evidence of record does not indicate that the Veteran has the necessary medical training or experience to comment on complicated medial questions such as the etiology of his leukemia. Finally, the Board is aware of the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology. However, the record indicates that the Veteran was first diagnosed with leukemia in June 2003, more than three decades after he separated from service. Moreover, the Veteran himself does not appear to contend that he experienced continuing symptomatology of this disease after service. In view of the foregoing, the Board finds that continuity of symptomatology after service has not been demonstrated. As a result, the third Shedden has not been demonstrated, and the claim fails on this basis. In conclusion, for these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for leukemia, to include as secondary to in-service exposure to herbicides, asbestos or other chemicals. The benefit sought on appeal is accordingly denied. ORDER Service connection for leukemia is denied. REMAND After having carefully considered the matter, and for the following reasons, the Board believes that the issue of service connection for prostate cancer, to include as secondary to in-service exposure to herbicides or asbestos, must be remanded for further development. Here, the Veteran argues that he developed prostate cancer as a result of his in-service exposure to asbestos, herbicides, diesel fumes and Freon gas. See a December 2008 statement. While the RO obtained a VA medical opinion in March 2010, the VA examiner limited his opinion to the Veteran's exposure to Freon and did not comment on the Veteran's claim that he was exposed to diesel fumes and asbestos. For these reasons, the Board finds the November 2011 VA examiner's opinion to be inadequate in its scope. Accordingly, based on this evidentiary posture, the Board finds that this case contains medical questions that cannot be answered by the Board. 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 diagnosed prostate cancer is at least as likely as not (50 percent probability or greater) related to the Veteran's military service, to include his in-service exposure to asbestos and diesel fumes. These questions must be addressed by an appropriately qualified medical professional. A medical examination is therefore necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370 (2002). See also 38 C.F.R. § 3.159(c)(4) (2011) [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, this remaining issue is REMANDED to the RO for the following action: 1. The RO should schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed prostate cancer. The Veteran's claims folder, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. After reviewing the entire record and examining the Veteran, the VA examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the claimed prostate cancer had its clinical onset in service or otherwise is due to an injury or other event or incident of his active duty, to include his conceded asbestos and diesel fume exposure. Complete rationale for all opinions expressed should be provided. 2. After completing all indicated development, the RO then should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs