Citation Nr: 1208944 Decision Date: 03/08/12 Archive Date: 03/19/12 DOCKET NO. 04-20 534A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for adenocarcinoma of the colon due to herbicide and asbestos exposure. 2. Entitlement to service connection for metastatic carcinoma of the right lung due to herbicide and asbestos exposure. REPRESENTATION Appellant represented by: Shannon Brewer, Esq. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to January 1964 and from October 1965 to August 1975. He passed away in November 2010. This appeal initially came to the Board of Veterans' Appeals (Board) from a February 2003 rating decision. In January 2008, the Board issued a decision in which it denied the Veteran's appeal. He appealed that decision to the U.S. Court of Appeals for Veterans Claims (Veterans Court). In a May 2010 decision, the Veterans Court issued a decision vacating the Board's decision and remanding the issues for further development and readjudication consistent with the Veterans Court's decision. Following the directed development, the Board once again considered the Veteran's claim, but ultimately denied his claim in an August 2010 decision. In November 2010, the Veteran very unfortunately passed away. The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title...." An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant may file a request for substitution with the VA RO from which the claim originated. In March 2011, VA informed the Court of Appeals for Veterans Claims (Court) that the appellant qualified as a person who would be eligible to receive accrued benefits under § 5121, and the Court granted the appellant's motion for substitution. The Court then vacated the Board's August 2010 decision and returned the case for additional discussion as directed by a joint motion for remand (JMR). It is noted that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's adenocarcinoma of the colon, and adenocarcinoma of the right lung manifested many years after separation from active service and have not been shown to have been caused by in-service exposure to asbestos and/or herbicides or by any other in-service exposure. 2. The M21-1 MR does state that inhalation of asbestos fibers can produce cancers of the "gastrointestinal tract", but it does not specifically find that colorectal adenocarcinoma is considered to be one of the cancers of the gastrointestinal tract; and it does not create a binding presumption for service connection. 3. The Veteran's lung cancer was clearly found by the medical evidence of record to be metastic nature, meaning that it did not originate in the Veteran's lung, but rather was the result of a transfer of the cancerous cells from the Veteran's colorectal cancer to his lung; and therefore the metastic lung cancer is by definition not on its own secondary to asbestos exposure, but rather was caused by the colorectal cancer. CONCLUSIONS OF LAW 1. Adenocarcinoma of the colon was not incurred or aggravated during active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.102, 3.307, 3.309 (2011). 2. Metastatic carcinoma of the right lung was not incurred or aggravated during active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.102, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As briefly discussed in the introduction, the Board previously denied the Veteran's claim in an August 2010 decision. This decision was subsequently vacated by the Court and returned to the Board for compliance with a JMR. Specifically, the JMR highlighted two areas of the Board's decision which the parties to the JMR concluded needed additional explanation and clarification. First, the JMR found that the Board had not adequately addressed a provision of the VA Adjudication Procedure Manual, M21-1MR (Manual), (which simply does not, and has never, applied to the Board), which stated that inhalation of asbestos fibers could produce cancers of the gastrointestinal tract. The appellant's representative subsequently argued that there was an inherent conflict between that provision of the Manual and the two medical opinions which the Board had relied on that essentially found no direct causal relationship between asbestos exposure and gastrointestinal cancer, such that VA had a duty to obtain an additional medical opinion. Second, the JMR indicated that the Board had not provided any analysis as to whether the Veteran's "lung cancer" was directly caused by his military service, to include any exposures therein, which was never contended by the Veteran or his representative prior to this time because the Veteran never had "lung cancer". The JMR also noted that on remand the appellant was entitled to submit additional evidence. Here, the appellant's representative has requested that VA obtain an additional medical opinion, but did not supply any additional medical evidence on behalf of the appellant. She also failed to present a persuasive rational reason to obtain an additional medical opinion beyond the two medical opinions VA has already obtained, which provide highly probative evidence against the Veteran's claim. The Board will endeavor to address the JMR's concerns below. Unfortunately, after reviewing the evidence once again, the Board's conclusion does not change that service connection is clearly not warranted in this case. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112 ; 38 C.F.R. §§ 3.307, 3.309. As a result of his service in the Republic of the Vietnam during the Vietnam War, the Veteran is presumed to have been exposed an herbicide agent containing dioxin or 2,4- dichlorophenoxyacetic acid. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.309(a)(6). However, neither colon cancer, nor adenocarcinoma, is subject to presumption of service connection based on exposure to herbicides. 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). Adenocarcinoma of the colon is not listed as a disease that may be presumptively service connected for veterans exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e). Presumptive service connection refers to the primary cancer so that metastatic right lung cancer is not subject to presumptive service connection under 38 U.S.C.A. § 1116(a) and 38 C.F.R. § 3.309(e). VAOPGCPREC 18-97; Darby v. Brown, 10 Vet. App. 243 (1997). In fact, in a memorandum decision in this case, the Court actually explained in a footnote that metastasis is "the transfer of disease from one organ or part to another not directly connected with it." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 28 at 1162 (31st Ed. 2007). Thus, while the Veteran in this case had cancerous cells in his lung, he did not have "lung cancer" as the cancer did not originate in his lung, but rater had metastasized from his colon. See Darby, 10 Vet. App. at 246 (finding that a showing that lung cancer metastasized from another organ rebutted a finding that a veteran had "lung cancer" for the purpose of herbicide presumptions). Therefore, service connection is not available in this case by operation of this presumption. Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). The Veteran's military occupational specialty as a special vehicle repairman, performing duties such as repairing asbestos-covered brake lines, is considered one of the major occupations involving exposure to asbestos. See VA Adjudication Manual M21-MR, Part IV.ii.2.C.9. Submitted by the Veteran is a document entitled "PLAINTIFFS' FIRST AMENDED ANSWERS TO DEFENDANTS' STANDARD INTERROGATORIES" from the U.S. District Court of for the District of South Carolina involving asbestos litigation between the Veteran and Bendix Corporation, and indicating that the answers were pursuant to interrogatories serviced in October 1985. The Veteran's answers to interrogatories indicates that that he worked with brake and clutch materials prior to, during, and after service and he indicated that that he was exposed to asbestos at all of these jobs. In any event, the Board does not dispute that the Veteran was exposed to asbestos during active service. 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, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The date of this amended material is December 13, 2005. The Veterans Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The JMR seized on this part of the Manual, suggesting that there was an inherent contradiction between the Manual's assertion that asbestos exposure can cause cancers of the gastrointestinal tract and the VA medical opinions of record that found no definite link or proven connection between the Veteran's presumed asbestos exposure and his subsequent development of colorectal cancer, such that the medical opinions should be considered inadequate and a new opinion should be sought. The Board disagrees. First, there are many types of cancers, and the Manual does not specifically identify adenocarcinoma of the colon as a type of cancer that is caused by asbestos exposure. Second, this generic suggestion in the Manual that asbestos exposure can cause gastrointestinal cancers, does not mean that it does cause gastrointestinal cancer, or that it did cause the Veteran's gastrointestinal cancer. Put another way, this comment in the Manual does not establish a presumptive link such that if a person is exposed to asbestos and, thereafter, develops gastrointestinal cancer that service connection is mandated. Thus, this comment in the Manual does not show that the Veteran's asbestos exposure directly (at least as likely as not) caused his gastrointestinal cancer. The Board acknowledges that the Court has consistently held that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1, are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). However, the statement that exposure can cause gastrointestinal cancers, is not a procedural directive of any kind, but rather is provided in an informational capacity. At most, the Board finds that this comment triggers VA's duty to provide an examination, but VA did in fact obtain two separate medical opinions to investigate the possibility that the Veteran's asbestos exposure in service caused his colorectal cancer. The procedural provisions of the Manual provide that when deciding a claim for service connection for a disability resulting from exposure to asbestos: a) determine whether or not service records demonstrate the Veteran was exposed to asbestos during service; b) ensure that development is accomplished to determine whether or not the Veteran was exposed to asbestos either before or after service, and c) determine whether or not a relationship exists between exposure to asbestos and the claimed disease, keeping in mind latency and exposure factors. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9(h). In any event, in this case, VA did determine that the Veteran was exposed to asbestos before, during and after military service. VA then obtained not one, but two, medical opinions to address the specific etiology of the Veteran's gastrointestinal cancer and his metastic lung cancer. As such, the Board makes the following factual finding: the procedural guidelines of the Manual were complied with. As will be discussed, the Board did take the time to obtain several medical opinions of record to investigate whether the Veteran's colorectal cancer was caused by his asbestos exposure, but the doctors unfortunately concluded that the two were not causally related in the Veteran's case. The doctors provided that while studies had identified a statistical link between asbestos exposure and colorectal cancer, no direct causal link had been identified. It is noted that no study is cited by the Manual to support the contention that asbestos exposure can cause gastrointestinal cancer, no such study was found by the VA doctors, and no such study has been identified by the appellant. The appellant's representative argued in January 2012 that where medical examinations are based on findings contrary to those found in the M21-1MR, those prior examinations have been found to be inadequate. However, she cited no Court precedent, or binding authority, for such an unusual contention. Moreover, were the logic of her argument to be accepted, it would effectively create a presumption for service connection any time a person with gastrointestinal cancer could show asbestos exposure in service; since any medical opinion which did not find that the asbestos exposure caused the cancer would be held to be "inadequate", thus requiring an additional remand. As such, an appeal would be on a perpetual cycle through the system until a medical opinion did find that is was at least as likely as not that a cancer was caused by such exposure. The fact remains that the Manual section, as noted, did not create a presumption for service connection and the Board concludes that greater weight should be assigned to the opinions of the doctors who analyzed the factors specific to the Veteran's individual case, than to a comment that allows for the mere possibility of a relationship. Importantly, if there were no possibility of a connection, there would have been no basis for the two VA examinations in the first instance in this case. The Manual also indicates that asbestos exposure may cause lung cancer that originates in the lung parenchyma rather than the bronchi. However, in the Veteran's case, his "lung cancer" did not actually originate in his lung. Rather, the medical evidence of record shows that the cancer in the Veteran's lung was metastic in nature and spread from his colon to his lung. For example, in November 2007, a VA examiner stated that the pulmonary nodule that was found in the Veteran's lung was biopsied and diagnosed as metastic adenocarcinoma probably secondary from colon cancer. While the JMR took issue with the fact that direct service connection was not considered for the Veteran's "lung cancer", neither the Veteran, nor the appellant, ever supplied evidence showing that the cancer Veteran's lungs actually originated in his lungs, as opposed to metastasizing from his colorectal cancer. Here, the medical evidence in the record consistently concludes that the cancer Veteran's lungs metastasized from his colorectal cancer. Thus, while the Veteran in this case had cancerous cells in his lung, he did not have "lung cancer" as the cancer did not originate in his lung, but rater had metastasized from his colon. See Darby, 10 Vet. App. at 246 (finding that a showing that lung cancer metastasized from another organ rebutted a finding that a veteran had "lung cancer" for the purpose of herbicide presumptions). As such, direct service connection for "lung cancer" is not warranted in this case, as the medical evidence of record shows that the Veteran did not have cancer originating in his lung, but rather had cancer in his lung that spread very unfortunately from another part of his body. Associated with the claims file in this case are treatment records revealing that the Veteran's first manifestation of adenocarcinoma of the colon appeared in May 1984, many years after the Veteran's discharge from service (which occurred in 1975). The presumptive provisions for chronic diseases are therefore not for application. In July 1984, the Veteran underwent a left hemicolectomy and abdominoperineal resection with a permanent colostomy. A later discovered nodule in the right lung was diagnosed by biopsy specimen as moderately differentiated adenocarcinoma consistent with colon primary. This case turns on whether the veteran's adenocarcinoma of the colon and metastatic carcinoma of the right lung is causally related to events in service, to include his exposure to asbestos and herbicides. See Combee, 34 F.3d at 1043-1044. That case involved a situation where there was no operative presumption that the disease at issue was caused by exposure to radiation. However, what is important with regard to the instant case is the Federal Circuit's repeated reference to the need for proof of causation where there is no applicable presumption of service connection. These references are as follows: Both the Board and the Court of Veterans Appeals construed section 5 of the Veterans' Dioxin and Radiation Exposure Compensation Standards [citation omitted] to preclude proof of direct service connection. Because section 5 does not remove a veteran's right to pursue direct service connection with proof of actual direct causation, this court reverses and remands for such consideration. Id. at 1040. "Because section 5 does not remove a veteran's right to pursue direct service connection with proof of actual direct causation, this court reverses and remands for such consideration" Id at 1040. "Actual causation carries a very difficult burden of proof." Id. at 1042. "As discussed, this route includes the difficult burden of tracing causation to a condition or event during service." Id. at 1043. "The Radiation Compensation Act does not, however, preclude or authorize the VA to preclude the veteran from proving actual direct causation if the veteran is able to do so. To the extent 38 C.F.R. § 3.311b forecloses the veteran's right to present proof of actual causation, it lacks support in the Act." Id. at 1044. It is clear from this language of Combee that what is required to grant service connection in a case where the disease did not have onset during service and there is no operative presumption is proof (to a equipoise standard) that some event (in this case exposure to an herbicide or asbestos) actually caused the disease. As explained in the article submitted by the Veteran, ASBESTOS FIBRE DUST AND GASTRO-INTESTINAL MALIGNANCIES. REVIEW OF LITERATURE WITH REGARD TO A CAUSE/EFFECT RELATIONSHIP, by A.B. Miller, published in 1978 in the Journal of Chronic Diseases, an epidemiological showing of an association between exposure to asbestos and subsequent development of gastro-intestinal cancers does not mean that the association is one of causation, rather it is one of statistical association. Miller makes this clear in the first sentence of his DISCUSSION on page 28 of the article when he writes: There is no doubt that an association has been demonstrated between exposure to asbestos and the subsequent development of cancers of the gastro-intestinal tract, particularly that of the esophagus, stomach, colon and rectum. The important question is the extent to which this association can be interpreted as being causal. Important for this case, the Board finds that there simply is no competent evidence of record that exposure to asbestos or exposure to herbicides actually caused the Veteran's colon cancer. Hence, the claim fails for lack of a showing of causation, both as to the cancer found in the Veteran's colon, and that colon cancer that metastasized to his lung. There are several medical opinions of record relevant to the issues on appeal. Of note is that most of the evidence submitted in support of the Veteran's claim was initially presented in the context of civil litigation in U.S. District Court between the Veteran and Bendix Corporation; hence the nature of some of the evidence including a deposition and answers to interrogatories. The Board has a duty to assess all evidence of record and assign probative weight to the evidence, as it has done so in this case. The Board may appropriately favor the opinion of one competent medical authority over another, provided that it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). There is no requirement that a medical expert review the Veteran's claims file in order for the opinion to be probative. Id. at 303. "That the medical expert is suitably qualified and sufficiently informed are threshold considerations; most of the probative value of a medical opinion comes from its reasoning." Id. at 304. Medical evidence that is speculative or inconclusive in nature cannot be used to support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993). See also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) and Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Evidence submitted in support of the Veteran's claims includes letters from a pathologist, "A. E.", M.D., who provided an opinion in an October 4, 1986 letter that the Veteran's colon cancer was epidemiologically related to his occupational exposure to asbestos. Dr. A.E. began that letter by stating as follows: on 5/17/85 I reported that in my review of the slide of the colon tumor, [redacted], resected on 5/17/84, that he had an adenocarcinoma of the colon. In my review of the slide of the lung biopsy [redacted], on 7/12/84, there was an adenocarcinoma, probably metastatic from the colon cancer. In addition, there was mild to moderate interstitial fibrosis. A report dated 6/9/84 of a transbronchial biopsy, [redacted] stated that interstitial fibrosis was present. I did not see these slides. This portion of the October 1986 letter was the basis for the Veterans Court's decision to vacate the earlier Board decision. The Veterans Court interpreted the date referred to by Dr. A.E. as 6/17/85. Since the Board issued the now vacated 2008 decision, the Veteran has submitted a more legible copy of the October 4, 1986 letter which clearly refers to an earlier letter of "5/17/86." This then is the letter referred to by the Veterans Court. The Veteran has also submitted a copy of that letter dated "5/17/86." In the May 17, 1985 letter Dr. A.E. stated that the Veteran had been exposed to asbestos as a brake lining worker. This statement is not based on any medical evidence as Dr. A.E. noted that he would need lung paraffin blocks to determine if the Veteran had asbestosis and as Dr. A.E. stated in his discussion of the tissue samples that "Asbestos bodies were not found", which the Board must find provides evidence against this claim. He stated that the adenocarcinoma of the lung was probably metastatic from the primary adenocarcinoma of the colon. He did not provide a link between exposure to asbestos and the Veteran's colon cancer. In a letter dated June 9, 1985, Dr. A.E. stated that he was replying to a letter from May 1985 and opined that "Yes, there is an association of [the Veteran's] adenocarcinoma of the colon, to his exposure to asbestos as a brakelining worker. This relationship is somewhat less than that of asbestos insulation worker's, which is a ratio of 1.55 to 1." In the October 4, 1986 letter, Dr. A.E. confirmed diagnoses of adenocarcinoma of the colon, adenocarcinoma of the right lung probably metastatic from the colon cancer, and interstitial fibrosis. He explained that asbestos was not found in any of the available lung slides and that paraffin blocks from the colon and lung tissue biopsy samples were not available that may have revealed asbestos bodies. This pathologist provided an opinion that, according to a "legal medical certainty," an epidemiological relationship existed between the Veteran's colon cancer and his occupational exposure to asbestos. Dr. A.E. referred to epidemiological reports suggesting a three-fold increase of gastrointestinal cancer in asbestos exposed workers when compared to the general population. In three cases, asbestos bodies had been found in the colon cancer. Dr. A.E. reported that the statistics did not deal directly with brakelining workers and that he had not found long term exposure data on brakelining workers but that "the principle of asbestos exposure to disease remained true." The Board assigns very little probative weight to this evidence from Dr. A.E. He states that he could not find any long term exposure data regarding brakelining workers, but merely proposes that the "principle" of asbestos exposure to disease remains true. This is not evidence that that exposure to asbestos at least as likely as not caused the Veteran's colon cancer for two reasons: First, in Dr. A.E.'s own statement he could not find any literature that linked brakelining workers exposure to asbestos to such cancer. Second, Dr. A.E. has not stated that the exposure to asbestos caused the Veteran's cancer. Rather, he has only expressed an opinion that there is an "association" between the Veteran's colon cancer and asbestos exposure and his statements depend entirely on epidemiological studies which show no more than an association. Logically, this does not show causation by any exposure during service as there is no accounting for any other factors which may be common to both those who develop colon cancer and those who tend to work with asbestos. Simply stated, the critical question in this case is whether it is at least as likely as not that something the Veteran was exposed to during his time in military service caused the disability at issue, not whether a disability "may" have been caused by something the Veteran was exposed to during service and/or whether there is an "association" between a disability and something the Veteran was exposed to during service. The weakness in the rational is self-evident. Also added to the record is the transcript of a deposition from "W.J.", M.D. taken February 26, 1985. When asked if he was aware of any relationship in the medical literature concerning exposure to asbestos and colon cancer, Dr. W.J. replied "Yes, I am. There is some literature that would support an association between asbestos exposure and colon cancer." He then referred to the review article by Miller from 1978. Dr. W.J. then states the author determined that there was an association between colon cancer and asbestos exposure. Of note is that Dr. W.J. stated nothing of importance in his reference to an "association". Rather Dr. W.J. neatly sidestepped the central point of Miller's 1978 article and mischaracterizes the article by focusing on the "association." As noted above, the Board finds that the point Miller was addressing in his article was not that there was an association, but rather if that association indicated a cause - effect relationship. The 1978 article explains that while there is no doubt that an association has been demonstrated between gastro-intestinal cancer and exposure to asbestos, the important question is whether the association can be interpreted as causal. Miller provided discussion highlighting the problems and deficiencies in drawing any conclusion that exposure to asbestos causes colon cancer. The Board finds that this study supports only a finding that it is highly speculative as to whether exposure to asbestos causes colon cancer and, more importantly, whether it can be said in this case that it is at least as likely as not that asbestos caused colon cancer in this Veteran. For example, the Board notes that it is a matter of record that, at one time, the belief was that exposure to dampness caused malaria, a belief later shown to be nonsense as it left out the causation factor (mosquitoes which transmitted the disease). One, however, certainly cannot argue that there is no "association" between dampness and malaria as mosquitoes are more likely to be present in damp areas. The faulty logic of confusing an "association" with "causation" is not a basis for granting VA benefits. Simply stated, while the Board does not ask of all medical providers to use the phrase "at least as likely as not", saying that there is an "association" is significantly different then a finding of "causation", the basis for any grant of this claim under Combee. Turning back to the deposition, when asked whether it is more likely than not that the Veteran's cancer was caused by asbestos exposure, Dr. W.J. responded "I think I'd have to have more information about his exact exposures before I could state comfortably that it was most probably associated with his asbestos exposure." When asked if he know of known causes of colon cancer, Dr. W.J. responded that "there are lots of proposed etiologic factors in colon cancer: There seems to be an increased risk of colon cancer in population with low fiber diets and in populations that have an increased consumption of meat. It's also been associated with ulcerative colitis and granulmatous colitis." This testimony again supports the finding that any causative relationship between exposure to asbestos and colon cancer is only speculative. The Board finds that from Dr. W.J.'s testimony one could just as well say that the Veteran's consumption of meat caused his colon cancer. This medical opinion provide highly, extremely, decidedly, limited probative value in support of this claim. Submitted by the Veteran is a document entitled "PLAINTIFFS' FIRST AMENDED ANSWERS TO DEFENDANTS' STANDARD INTERROGATORIES" from the U.S. District Court of for the District of South Carolina involving asbestos litigation between the Veteran and Bendix Corporation, and indicating that the answers were pursuant to interrogatories serviced in October 1985. The Veteran's answers to interrogatories indicates that that the Veteran worked with brake and clutch materials prior to, during, and after service and his assertion that he was exposed to asbestos at all of these jobs. This document provides no evidence as to causation of his cancer by exposure to asbestos during service. Also submitted by the Veteran is an article from 2004 entitled "Mesothelioma and Lung Cancer Among Motor Vehicle Mechanics: a Meta-analysis." This article does not refer to colon cancer or to adenocarcinoma. Hence, the article is not probative of any fact at issue in this case. The Board once again acknowledges the JMR's notable contention that the Board should have addressed direct service connection for "lung cancer", which the Veteran never had. Indeed, if the Veteran had developed cancer originating in his lung (i.e., "lung cancer"), the study cited above might have been relevant. However, as explained by the Court in this case, metastasis is "the transfer of disease from one organ or part to another not directly connected with it." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 28 at 1162 (31st Ed. 2007). Thus, while the Veteran had cancerous cells in his lung, he did not have "lung cancer" as contemplate by this article, as the cancer cells in the Veteran's lung had metastasized from his colon. Therefore, this study remains inapplicable to this claim as the Veteran did not have cancer originating in his lung. In light of the extensive litigation of this case (that actually went very unfortunately beyond the life of the Veteran himself) the Board believes it must be unusually blunt on this and other points to avoid further litigation in this case. A copy of a 1989 medical lecture to VA Compensation and Pension personnel regarding asbestos related diseases of veterans is of record which cited statistical evidence essentially showing that white males with asbestosis had statistically significant increases in incidences of colon cancer when compared the general white male population without asbestosis. It was noted that asbestos bodies and fibers could be found in the mucosa of the colon or rectum at the base of the cancer, but that hospital pathologists did not routinely search for such fibers. By reference to compilations of cancer mortalities by the National Cancer Institute and the Environmental Protection Agency, cancers occurred at a greatly increased rate in persons with significant asbestos dust exposures. The physician concluded that, with respect to colon cancer, "[i]t seems reasonable therefore to accord veterans with known asbestos exposure the benefit of doubt in adjudicating their claims." In this case, however, the Board notes that there are no biopsy samples showing that asbestos bodies were found in the Veteran's colon cancer. Therefore, the facts of this case differ from the statistical studies referred to by Dr. A.E., and the medical lecture materials. Thus, the evidence for this case rests entirely on strength of statistical evidence that could support a conclusion of no more than that there is an "association" between that colon cancer and asbestos exposure. As stressed in this decision and by the Federal Circuit in Combee, what matters is causation, not merely an association. Evidence unfavorable to the Veteran's claims includes an April 2004 VA examination that included consultation with the VA outpatient clinic Chief of Gastroenterology. The VA examiner concluded that there was no proven connection between asbestos exposure and colorectal cancer. It was noted that several literature articles had showed a statistical concurrence, but this was not deemed to be significant as both asbestos exposure and colorectal cancer were common occurrences. The examiner concluded that the Veteran's colorectal cancer with lung metastasis were unrelated to asbestos exposure in service. This examiner did not have benefit of review of the claims folder, to include the positive evidence in support of the claim addressed above. However, the question here is whether there is a causative relationship between exposure to asbestos and colon cancer, a question that does not depend on the facts particular to this case, but rather on the state of medical knowledge. In September 2007, the Board made arrangements to have the Veteran's case reviewed by a Veterans Health Administration physician. In a November 2007 report, a VA gastroenterologist found no direct link between the Veteran's colorectal cancer and asbestos exposure, indicating that any coexistence was purely incidental, providing significant evidence against this claim. The examiner was unable to provide an opinion as to the causal relationship to herbicide exposure absent more specific information as to the actual herbicide exposure involved in the case. It is important for the Court to understand that, overall, the Board finds that the April 2004 opinion and the September 2007 opinion are essentially in agreement with the evidence submitted by the Veteran himself before he died during the litigation in this case: This evidence, taken together, provides that while there is a statistical "association" between gastrointestinal cancer and asbestos exposure, however, the state of medical knowledge is that there is no showing that the association is one of causation (at least as likely as not the cause) and, in this case, regarding this Veteran, it is less likely as not that asbestos exposure in service caused the Veteran's gastrointestinal cancer. The most probative evidence of record, including medical information supplied by the Veteran himself, is found to support this finding. Here, the Board must emphasize that it has reviewed the evidence under the evidentiary standard applicable to claims for VA disability compensation, which is the "as likely as not" or "equipoise" standard, sometimes referred to as resolving reasonable doubt in favor of the claimant. This is an evidentiary standard best explained by the Veteran Court as when there is a "tie" between the evidence favorable to the claim and the evidence unfavorable to the claim, the claim must be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990) (analogizing to the baseball rule that when there is a tie between the base runner and the ball "the tie goes to the runner"). This is an evidentiary standard, it is not a standard for determining the state of medical knowledge. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for adenocarcinoma of the colon and metastatic carcinoma of the right lung. Because the preponderance of the evidence is against the Veteran's claims, there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). Accordingly, the appeal must be denied. Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In its August 2010 decision, the Board concluded that VA's duty to notify the Veteran had been satisfied by way of a letters sent to him in December 2002 and March 2009. Both letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. A March 2009 letter also provided the Veteran with notice as to how VA assigns disability ratings and effective dates in the event that service connection is established. The Board acknowledged that the duty to notify had not been completely satisfied prior to the initial unfavorable decision on the claim by the RO, but found that content complying notice had been provided by the March 2009 letter and that any timing error in the notice the error had not resulted in any prejudice to the Veteran. Specifically, the Veteran had a meaningful opportunity to participate in the development of his claim since the last notice letter, and had done so, submitting evidence and argument that goes directly to the issue in dispute in this case - a causative relationship between the Veteran's service and his cancer. The Veteran thus demonstrated that he fully understood what was needed to substantiate his claims, and his actions demonstrated that he had a greater awareness of what evidence was needed in this case than would likely have been gleaned from any timely notice sent in response to receipt of his claim. Thus, the Board found that because the Veteran had not been prejudiced by the defect in notice that defect did not require that the Board delay adjudication of his appeal. See Sanders v. Shinseki, 129 S.Ct. 1696 (2009) (explaining the rule of prejudicial error in the context of claims for VA benefits). As noted, the appellant in this case was substituted for the Veteran following his unfortunate death. While no individual notice was provided to the appellant, she has not alleged any prejudice from any failure to provide notice. See Sanders v. Shinseki, 129 S.Ct. 1696 (2009). Moreover, the appellant has demonstrated full knowledge of what is necessary for service connection. To this end, she submitted a letter in September 2010 arguing that the Veteran was exposed to asbestos while in service, and discussing the latency period for cancer following asbestos exposure. She has also been represented by counsel well aware of the standards in this case. As such, while this is a new issue to Veterans Law, the Board is satisfied that no additional notice to the appellant is necessary in this case. A remand of this case, on this basis, would be an exercise in complete pointlessness. VA has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished in this case, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, VA treatment records, and all evidence identified by the Veteran prior to his death, by the appellant, or by the record has already been associated with the claims file. Furthermore, neither the appellant, nor her representative, have identified, nor has the record otherwise indicated, the existence of any additional evidence that is necessary for a fair adjudication of the claim that has not been obtained. It is also noted that the Court has already vacated a Board decision and remanded the claim to seek additional private treatment records; and decisions from the Court have repeatedly cautioned that parties should not provide one basis to vacate and remand a decision from the Board (as in this case) and then (once the actions requested have been undertaken, as in this case) find another reason to vacate and remand a decision from the Board based on the same facts that were before them when the case was first before the Court (as in this case). See Massie v. Shinseki, No. 09-3397 (U.S. Vet. App. Dec. 19, 2011) (in which the Court stated that it is troubled that the current system "provides very little incentive for an attorney practicing before VA to present all available arguments to the agency in one comprehensive appeal to the Board where veterans' claims can be resolved in a timely matter"). Such practices only create continual litigation that goes on for years. Given that this claim has already been remanded to obtain additional records, and since no additional records have been identified, the Board must assume that no additional potentially relevant records exist. Additionally, VA afforded the Veteran an adequate examination in April 2004 and obtained an additional adequate expert opinion in November 2007. While the representative has argued that VA should seek an additional opinion, this request appears to be driven more by a disagreement with the conclusions of the aforementioned VA medical opinions than it does with any disagreement with the adequacy of the opinions. Thus, the Board finds no duty, or need, to seek an additional opinion. The rational of the request lacks all logical merit. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs