Citation Nr: 1301042	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  03-26 491	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Baltimore, Maryland



THE ISSUE

Entitlement to service connection for colon cancer, to include as secondary to exposure to asbestos and/or asbestosis.



REPRESENTATION

Appellant represented by:	William E. Doyle, Jr.



ATTORNEY FOR THE BOARD

C. M. Powell, Counsel



WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


INTRODUCTION

The Veteran served on active duty from October 1951 to July 1955.  

This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2000 rating decision that denied service connection for colon cancer.  The Veteran perfected an appeal with regard to the matter to the Board, which in an October 2005 decision, denied the matter.  He appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In a March 14, 2012 Memorandum Decision, with Judgment entered on April 5, 2012, the Court vacated the Board's October 2005 decision and remanded the case to the Board for readjudication in accordance with the directives of the Court.

In February 2004, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with the claims file.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

The currently demonstrated colon cancer is shown as likely as not to be due to the Veteran's period of active service.  



CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his disability manifested by colon cancer is due to disease or injury that was incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002), and its implementing regulations redefine the obligations of VA with respect to its duties to notify and assist claimants.  However, in the decision below, the Board has granted the Veteran's claims for service connection for colon cancer.  

Therefore, the benefits sought on appeal have been granted in full. Accordingly, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. 


II. Pertinent Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

Current disability resulting from disease or injury in service is required to establish entitlement to service connection.  Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997).  To establish service connection for a disability, there must be competent evidence of a current disability, incurrence or aggravation of a disease or injury in service, and of a nexus between the in-service injury or disease and the current disability. 

Regulations also provide that service connection may 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).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.  71 Fed. Reg. 52744 -47 (Sept. 7, 2006). 

There is no specific statutory or regulatory guidance with regard to claims of service connection for asbestosis or other asbestos-related diseases.  However, in 1988, VA issued a circular on asbestos-related diseases that 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 VA's Office of General Counsel discussed the development of asbestos claims.  VAOPGCPREC 4-00.

VA must analyze the issue on appeal under these administrative protocols using the following criteria.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease.  M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997).  An asbestos-related disease can develop from brief exposure to asbestos.  Id.
VA's Manual 21-1, Part VI, para. 7.21 (October 3, 1997) contains guidelines for the development of asbestos exposure cases.  Part (a) in essence acknowledges that inhalation of asbestos fibers 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).  

VA's Manual 21-1, Part VI, para. 7.21(b) (October 3, 1997) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers.  Noted is that the latent period 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).  

VA's Manual 21-1, Part VI, para. 7.21(d) (October 3, 1997) 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 also VAOPGCPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33,422 (2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures).  

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372.  

Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). 

Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).


III. Legal Analysis

The Veteran asserts that service connection is warranted for colon cancer.  The record demonstrates that the Veteran has been diagnosed with, and treated for colon cancer. With respect to an in-service injury or disease, the Veteran does not contend that he had an in-service colon disability.  Rather, he asserts that such condition is related to his asbestos exposure while in service.  

The record shows that the Veteran served in the U.S. Navy from October 1951 to July 1955, and that his military occupational specialty was that of a fireman.  In 2000, the RO requested information from the service department regarding whether the Veteran had been exposed to asbestos in service, and, if so, to what degree such exposure occurred. 

In a response received in January 2001, the RO was advised that the General Specification for Ships during that period required heated surfaces to be covered with an insulating material, and that it was highly probably that asbestos products were used to satisfy that requirement.  

For this reason, and because the Veteran's occupation was fireman, it was found to be highly probably that the Veteran was exposed to asbestos in service.  Thus, in light of this finding, the Board concludes that the credible and probative evidence establishes that the Veteran was exposed to asbestos in service. 

With regard to the etiology of the Veteran's colon cancer, in July 2003, a private physician opined that, "this cancer [was] related to his occupational exposure to asbestos."  In reaching this conclusion she related that:

Asbestos is a recognized carcinogen, which is known to cause several kinds of cancer in humans and animals.  The increased risk of gastrointestinal malignancies from asbestos exposure has been observed in numerous studies.  In numerous countries and work settings, both in case-control studies and "cohort" studies, gastrointestinal cancer has been increased 2-5 times expected from asbestos exposure.  Cancer of individual sites is harder to study because it requires the study of large groups with careful follow up and analysis.  The use of appropriate worker control; analysis in the period of risk without dilution of the sample by individuals not at risk, as well as adequate statistical power, are all necessary preconditions for adequate study of individual site-specific rates of intestinal cancer.

In studies where such preconditions are met, colon cancer risk has been elevated 50%-200% (SMR 1.5-2.0) or even higher.  Higher levels of risk are seen with higher exposure (a dose response phenomenon).  The risk of colon cancer is roughly lower but parallel to, the lung cancer risk from asbestos.  The findings have been confirmed in other groups of insulators, in factory workers, and in shipyard workers.  The increased risk is seen mainly in workers with 20 or more years of latency (duration from the first exposure).

In the study of asbestos insulators published by Selikoff, Hammond, and Churg in 1965, the incidence of gastrointestinal cancer, including cancers of the esophagus, stomach, colon, and rectum were increased 3 time expected.   Among the asbestos insulation workers, intestinal cancers accounted for 10 % of all the observed deaths.

In the follow-up study of insulators by Selikoff in 1979, there were fifty-five (55) cases of colorectal cancer observed as the cause of death among workers who had more than 20 years since the onset of asbestos exposure prior to the time of death when only 34 would have been expected.  This observation means that the risk of dying of colon or rectal cancer is 1.62 times the expected risk in the general population (a 62% excess) among asbestos workers who are at least 20 years from their first asbestos exposure.  

Numerous other studies have been performed.  A dose responsive curve showing that low dose-levels are associated with colon cancer has been demonstrated.  The causal connection between asbestos and gastrointestinal cancer has been recognized by such public health agencies as the National Cancer Institute, Department of Health, Education and Welfare, American Cancer Society, International Agency for Research on Cancer, National Institutes of Occupational Safety and Health, and the Occupational Safety and Health Administration.

Sheetmetal workers are one of the asbestos exposed groups which have been studied for an asbestos-related increase in colon cancer, and have been found to have an increased risk of this cancer.  

Benign adenomatous polyps may be caused by a combination of carcinogen exposure and genetic susceptibility to them.  They are considered to be a precancerous or premalignant condition of the colon.  The presence of such lesions may indicate a colon which is more susceptible genetically, or for other reason, to carcinogenic influence, and may reflect the numerous carcinogenic insults on the colon in the course of life,  Evidence exists that at least one half of colon cancers develop from previously benign adenomatous polyps, mostly the villous or tubule-villous forms.  The actual premalignant lesion is usually an area of dysplasia.  In any case, the presence of such lesions does not rule out the effect of a carcinogen or carcinogens, but rather, if anything, demonstrates the effect of such exposure. At least one animal species has an increase in polyps secondary to asbestos exposure.  A case control study also shows increased colon polyp incidence to be associated with asbestos exposure.
Based on biologic and epidemiologic data, it can be stated with a reasonable medical probability that the asbestos exposure experienced by [the Veteran] increased his risk of developing cancer, and was a significant contributing factor in the development of his cancer.
  
However, a July 2004 VA examination report shows that the examiner opined that that the Veteran's colon cancer was not due to asbestos exposure.
She specifically stated that:
	
It is unlikely that asbestos exposure has caused the patients colon cancer...I have found no evidence in the literature of a link between asbestos and colon cancer.  It is my opinion, therefore, that the colon cancer is not related to asbestos exposure.

The Board notes that in cases such as this where there are conflicting statements from medical professionals regarding the whether the Veteran's colon cancer is etiologically related to his in-service asbestos exposure, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Veterans Appeals stated: 

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . . 

So long as it provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  In addition, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). 

In this case, the Board observes that the basis of the March 2005 VA examiner's opinion apparently rested on the fact she could find no evidence in the literature of a link between asbestos and colon cancer.  However, in the July 2003 opinion, the physician cited numerous clinical studies supporting her opinion that the Veteran's colon cancer was related to in-service asbestos exposure.  There is no evidence that the VA examiner ever addressed the July 2003 opinion or the medical data and literature she referenced in reaching her conclusion that the Veteran's colon cancer was caused by in-service asbestos exposure.  

Therefore, in weighing the medical evidence, the Board finds that Dr. D.'s July 2004 opinion is more probative than the March 2005 VA opinion. 

For that reason, because the Veteran has been diagnosed as having colon cancer, which is as likely as not is linked to his in-service asbestos exposure, and resolving all benefit of doubt in the Veteran's favor, the Board finds that service connection for colon cancer is warranted.


ORDER

Service connection for colon cancer is granted.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals

Department of Veterans Affairs