Citation Nr: 1231298 Decision Date: 09/12/12 Archive Date: 09/19/12 DOCKET NO. 10-06 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as secondary to asbestos exposure. 2. Entitlement to service connection for sarcoidosis, to include as secondary to asbestos exposure. 3. Entitlement to service connection for a lung disability, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St, Louis, Missouri, which denied the benefits sought on appeal. The Veteran filed a notice of disagreement in August 2009. A statement of the case was issued in January 2010. The Veteran perfected his appeal in February 2010. The Veteran withdrew his request for a personal hearing before the Board in June 2010. 38 C.F.R. § 20.704(e). As such, there are no outstanding hearing requests of record. The claims for sarcoidosis and a lung disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran is not shown to have manifested prostate cancer in service or for many years thereafter; prostate cancer is not shown to be due to a documented injury or other event of the Veteran's active military service, to include asbestos exposure. CONCLUSION OF LAW The Veteran does not have prostate cancer due to disease or injury that was incurred in or aggravated by active service, nor is it presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a September 2008 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided VCAA notice to the Veteran in September 2008, which was prior to the March 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The September 2008 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. The Veteran indicated in October 2008 that he had no additional information or evidence to submit in support of his claim. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principia, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment and personnel records and post-service VA and private treatment records. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. A remand for a VA medical opinion is not necessary in order to decide the claim in this case because the record does not contain any evidence that the Veteran suffered an injury, disease, or event in service or that the claimed prostate cancer may be associated with service. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Appellants of Am. V. Sec'y of Appellants Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003). The RO attempted to obtain private treatment records of the Veteran from the Smith-Glynn Callaway Clinic; however, the clinic indicated in February 2009 that the Veteran's medical records had been destroyed. Any further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159(b), 20.1102 (2010); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Criteria The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Malignant tumors (prostate cancer) shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). III. Analysis The Board has reviewed all the evidence in the Veteran's claims file. The Board has also reviewed the Veteran's Virtual VA record, which contains no additional information or evidence pertinent to the claim. 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each 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). The Veteran asserts that he is entitled to service connection for prostate cancer. Specifically, he contends that his exposure to asbestos while performing duties as a boilerman/fireman aboard ship caused the disability. The Veteran alleges no other incident of service incurrence. After careful consideration of all procurable and assembled data, the Board finds that service connection for prostate cancer is not warranted. First, there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). (Emphasis added). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. In the instant case, even assuming the Veteran was exposed to asbestos aboard ship, the manual provisions specifically exclude prostate cancer as a disease resulting from inhalation of asbestos fibers and/or particles. Thus, service connection for prostate cancer based on asbestos exposure is precluded. The Board has next turned to entitlement under theories of direct and/or presumptive service connection; however, service connection is also not warranted on these bases. Notably, the Veteran's service treatment records are wholly devoid of treatment, complaints, or diagnoses of prostate disease or injury, to include cancer. The November 1957 separation examination found the genitourinary system normal. Urinalysis was also normal. Post-service, prostate cancer was first diagnosed in December 1999, some 42 years after his separation from service. This is clearly outside the one-year presumptive period for malignant tumors (of the prostate). 38 C.F.R. §§ 3.307, 3.309. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the § 1111 presumption of soundness). This absence of evidence of complaints or treatment of prostate cancer until 1999 constitutes negative evidence against the claim because it tends to disprove that prostate cancer was the result of the Veteran's active service. Id. This is especially true in light of the family history of prostate cancer (the Veteran's father) noted by Dr. PT in November 1999. Although the Veteran reports having prostate cancer related to asbestos exposure during his military service, there is no medical evidence on file supporting his lay assertions and the disease is specifically precluded as one associated with inhalation of asbestos fibers or particles. As a layperson, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Cancerous disorders, however, are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. As prostate cancer was not shown during service or for years thereafter, service connection can only be granted if there is some competent evidence linking the current disability to service. Here, there is no such competent evidence that establishes a relationship to an identified injury or other incident of service. The preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service for prostate cancer, to include as the result of asbestos exposure, is not warranted. The appeal is denied. REMAND The Veteran also claims entitlement to service connection for sarcoidosis and a lung disability. Specifically, he contends the disabilities are the result of asbestos exposure while performing duties as boilerman/fireman aboard ship. A preliminary review of the record shows that additional development is necessary prior to adjudication of these claims. VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. The RO has not fully developed these claims in accordance with the VA manual provisions. Such must be accomplished upon Remand. 38 U.S.C.A. § 5103; see also M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." Additionally, the Veteran has not been afforded a VA examination in connection with these claims. The RO scheduled the Veteran for a VA respiratory examination in January 2009. The RO claims the Veteran failed to appear; however, the Veteran alleges that he had no notice of the examination. The request for VA examination did not contain the Veteran's correct address of record. A copy of the notification letter has not been associated with the claims folder and the Board is therefore not satisfied the Veteran had actual notice of the examination. In claims seeking service connection, VA must arrange for an examination to secure a nexus opinion [to service, i.e.] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran seeks service connection for sarcoidosis and a lung disability based on a theory that such is related to asbestos exposure in service. The service personnel records show the Veteran took training courses as a fireman. He served as a boiler tender in January 1955. He served aboard the USS President Jackson from December 1954 to July 1955 and the USS Duncan from September 1955 to June 1956. The medical evidence of record shows the Veteran reported a history of sarcoidosis. A July 2008 chest x-ray was negative for active pulmonary disease. An entry dated in July 2008 noted a history of asbestos exposure with no "sequelae yet." The low threshold standard of McClendon is met; a VA examination to secure a medical nexus opinion is necessary. Finally, the most recent VA treatment records associated with the record are dated in August 2009. Updated records of any treatment the Veteran has received for sarcoidosis and/or a lung disability since August 2009 are pertinent evidence and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2010) are fully complied with and satisfied, to include following VA manual provisions for developing claims for asbestos-related diseases. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." 2. The RO should secure for the record copies of the complete clinical records of the Veteran from the appropriate VA medical Center since August 2009. All requests for records and their responses should be clearly delineated in the claims folder. 3. Thereafter, the RO should arrange for the Veteran to be examined by an appropriate VA examiner to determine the nature and etiology of his claimed sarcoidosis and lung disability. The Veteran's claims file must be reviewed by the examiner in connection with the examination. Based on review of the record and examination (including laboratory and radiographic testing) of the Veteran, the examiner should offer an opinion as (a) whether the Veteran currently has sarcoidosis and/or a lung disability and (b) if so, the likely etiology and specifically, whether any currently diagnosed sarcoidosis and/or lung disability was at least as likely as not (a 50 % or greater probability) incurred in or aggravated by service, to include as a result of asbestos exposure therein. The examiner must explain the rationale for all opinions. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative a fully responsive supplemental statement of the case that includes clear reasons and bases for all determinations and afford them a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs