Citation Nr: 1305296 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 09-43 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for atrial fibrillation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty service in the United States Army from February 1952 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a Travel Board hearing that was chaired by the undersigned Veterans Law Judge at the Boston RO in April 2011. A transcript of the hearing has been associated with the Veteran's VA claims folder. This matter was previously before the Board in June 2011, when it was remanded for further development, including the provision of a VA examination. The matter has now returned to the Board for review. A review of the Virtual VA paperless claims processing system does not reveal any additional records that are pertinent to this appeal. 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). FINDINGS OF FACT 1. The Veteran's prostate cancer did not have its onset in active duty service and is not otherwise related to active duty service. 2. The Veteran's atrial fibrillation did not have its onset in active duty service and is not otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for entitlement to service connection for atrial fibrillation have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). The 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (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. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). Compliance with the first Quartuccio element requires notice of these five elements. See id., at 486. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The duty to notify has been satisfied. A fully compliant VCAA notice was sent to the Veteran on August 18, 2008. Further, pursuant to the Board's June 2011 remand, the Veteran was provided notice regarding asbestos exposure in a letter dated June 23, 2011. The duty to assist has also been satisfied. The Veteran's available STRs and post-service medical records have been associated with the file. His service personnel records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC), and he was notified of such by letter dated August 22, 2011. He was not notified that his service inpatient clinical records were also destroyed, however, the available STRs support the allegations he has made regarding in-service hospitalization due to a burn on his hand. To the extent that he wanted that evidence to demonstrate the types of chemicals he was exposed to, the Board has requested opinions as to whether any type of chemical exposure would cause the claimed disabilities, as discussed below, and as such, the Board does not find the Veteran to be prejudiced by this failure. The Veteran has alleged that the destruction of his personnel and inpatient clinical records has prejudiced the outcome of his claim. See Statement dated April 23, 2012. As above, the Board does not find this to be prejudicial. As will be discussed in more detail below, the Veteran's claim lacks the third element of service connection, which is evidence that connects an incident in service to a current disability. Here, the Board has requested medical opinions addressing the Veteran's theory that his current disabilities are related to his work around a garbage dump and burn pit during service, and the opinions were negative. Thus, although the missing records would relate to a finding as to whether an incident in service occurred, because the final element is not in the Veteran's favor, the absence of those records has not had any substantial effect on the outcome of the Veteran's claims. The Veteran has been afforded a VA examination for each of his claimed disabilities, and the reports are included in the file. Due to the complexity of the medical issue at hand, whether exposure to asbestos and other chemical and hazardous waste in service caused or aggravated the Veteran's disabilities, the Board requested an opinion from a specialist (VHA opinion). This opinion is based on a thorough review of the Veteran's records, and is adequate for adjudicatory purposes. The Veteran was sent a copy of the VHA opinion in December 2012, and filed a statement in response. In regard to the June 2011 remand, the Board finds that there has been substantial compliance with the remand directives, which included providing VCAA notice regarding asbestos, obtaining personnel records, and scheduling VA examinations. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, the Veteran submitted a written statement and an October 2012 opinion from Timothy B. Hopkins, M.D. in January 2013. On the Medical Opinion Request Form, the Veteran checked the box stating that he did not waive RO consideration of this evidence. However, in an accompanying written statement, the Veteran wrote, "I am waiving R.O. jurisdiction of the amendment medical attached evidence." The Board finds that the hand-written statement is indicative of the Veteran's true intent, and that he appears to have checked the wrong box on the Medical Opinion Request Form. Regardless, the opinion from Timothy B. Hopkins, M.D. is cumulative of his prior April 2011 opinion, both suggesting a possible (i.e., "conceivable" and "may have caused") relationship between the Veteran's prostate cancer and his claimed in-service exposure, such that remand for a supplemental statement of the case is not required. See 38 C.F.R. § 19.37(b), 20.1304(c). Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). When the Veteran entered service, his heart and genitourinary system were clinically evaluated as normal. See Report of medical examination dated November 14, 1952. In November 1956, he was treated for a burn wound to the hand. See Outpatient report dated November 23, 1956. When he separated from service, his heart and genitourinary system were again clinically evaluated as normal. See Report of medical examination dated January 21, 1955. The Veteran was diagnosed with prostate cancer in 2007, over fifty years since separating from service. See Dr. J. A. dated February 23, 2007. The Veteran's private physician provided a statement indicating that it is not known what causes prostate cancer, but that it is conceivable that the Veteran's exposure to asbestos and other chemicals in service may have been contributing factors to his cancer. See Dr. T. H. dated April 7, 2011. He later submitted another statement indicating that it is at least as likely as not that the Veteran's exposure to chemicals may have caused the prostate cancer. See Dr. T. H. dated October 3, 2012. At the October 2011 VA examination, the examiner opined that it was less likely than not that the Veteran's prostate cancer was related to service. As support, he cited that the STRs showed no symptoms related to any exposure to chemicals or asbestos, a chest X-ray showed no evidence of pulmonary exposure to asbestos, and the Veteran had no complaints in service regarding his prostate. The over forty-year period between separation and diagnosis was also mentioned in support of the VA examiner's opinion. See VA examination October 27, 2011. The Veteran developed atrial fibrillation in 2008, over fifty years since separating from service. See Dr. T. H. dated August 20, 2008. The Veteran's private physician provided a statement acknowledging a conversation that he had with the Veteran about whether asbestos and chemical exposure could have led to atrial fibrillation. The doctor noted that he knew of no clear cause and effect relationship, however, he further stated that there was always the possibility that such a relationship could exist but is yet to be statistically or scientifically established. See Dr. C. B. dated April 13, 2011. At the October 2011 VA examination, the examiner opined that it was less likely than not that atrial fibrillation was related to service. He noted that the Veteran's private physician had already set forth that there is no clear cause and effect relationship between the Veteran's exposures and atrial fibrillation. He also noted there were no complaints of heart problems in service, and that it was over forty years since separation from service until the disability developed. See VA examination dated October 27, 2011. The Board obtained a VHA opinion, from a physician that is Board Certified in Occupational Medicine, to further clarify the question of whether asbestos or chemical or hazardous waste exposure could lead to prostate cancer or atrial fibrillation. He reviewed the Veteran's STRs, noting that his genitourinary and cardiovascular systems were normal upon separation, and more current medical records. He then explained the process used in determining the likeliness of a link between an exposure and a claimed condition. Initially, one must look to medical literature, which is comprised of toxicologic studies of animals, and epidemiologic studies of exposed humans. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 638 (31st ed. 2007) ("epidemiology" is "the study of the factors determining and influencing the frequency and distribution of disease... and their causes...."). He noted that animal studies must be relied upon cautiously, because their absorption, metabolism, and excretion of toxic substances can be very different from that of humans, but these types of studies can be used to form theories on how a human may react. Thus, there are very few animal studies that indicate direct causation. In order to support a causal relationship, a statistically significant association must exist between the exposure of concern (here, asbestos, chemicals, and other hazardous waste) and the occurrence of the condition in human beings. In other words, epidemiological studies must show that the occurrence of the condition in human beings after exposure is not random or coincidental. Once a statistically significant association has been established, the next step is to analyze the association under Bradford Hill's rules of causation, which look at the strength of the association, whether the association is consistent across numerous studies, the specificity of the exposure to the condition, the time between the exposure and the onset of the disease, biological gradient with a dose-response relationship, biologic plausibility, coherence, whether it can be reproduced in experimental models, and analogy. If these rules are fulfilled, then a relationship between the exposure and the observed disease is supported. In the VHA opinion, the physician indicated there are no published statistical associations that show a link between exposures such as the Veteran's and prostate cancer or atrial fibrillation. More specifically, there is no epidemiologic evidence or documentation that asbestos exposure causes prostate cancer or atrial fibrillation. There is also no epidemiologic evidence or documentation that a chemical burn to the hand or that working at burn pits causes prostate cancer or atrial fibrillation. The VHA physician commented that the Veteran's private physicians' statements (that there may be an unknown, yet possible, connection to atrial fibrillation; that it is conceivable that prostate cancer resulted from the exposure) did not reach the level of an association or causal association. In summary, the VHA physician opined that without a statistically significant association supporting a causative relationship between the Veteran's exposure and his later-contracted disabilities, or evidence of their onset during service, the Veteran's prostate cancer and atrial fibrillation were not related to service. See VHA dated October 11, 2012. At the hearing, the Veteran testified that while he was stationed in France, he was assigned to work at the garbage dump and burn pits, and was not provided a respirator. He had to dispose of chemical waste, five days a week for six months. He did not know what the chemicals were. He asserted that his prostate cancer and atrial fibrillation were due to this chemical exposure. See Hearing transcript dated April 6, 2011. He has also provided statements that he was exposed to asbestos at the dump. See Statement dated July 20, 2011. As discussed above, in order to find service connection, the evidence must show that the Veteran has a current diagnosed disability, that the Veteran incurred a disease or injury in service, and that the current diagnosis is related to that disease or injury incurred in service. See Shedden¸supra. It is undisputed that he was diagnosed with prostate cancer in 2007, and atrial fibrillation in 2008. As such, the first element of service connection is met for each claim. There is also evidence that the Veteran worked at a garbage dump, and was consequently exposed to asbestos and other chemicals and hazardous waste. Assuming without deciding that he was exposed to such contaminants, there is no competent evidence of record showing a nexus, or relationship, between the current disabilities and such exposure. The October 2011 VA examiner's opinions were flawed because, with regard to prostate cancer, he reasoned that there was no evidence in the service treatment records of any symptoms related to the Veteran's exposure to chemical/asbestos; however, for the purpose of this opinion the Board has conceded such exposure. And with regard to atrial fibrillation, the examiner indicated that the claimed condition was less likely than not incurred in or caused by inservice injury, event, or illness, but did not address the claimed chemical and/or asbestos exposure. Therefore, the Board requested the VHA opinion. The VHA examiner concluded that the Veteran's prostate cancer and atrial fibrillation were not due to any service connected exposure. He stated that neither had its onset during military service and neither is related to any service disease or event. Specifically, he stated that it was his opinion that neither the prostate cancer nor the atrial fibrillation are due to military service, including documented chemical and hazardous waste exposure and/or asbestos exposure. The Board finds this opinion to be highly probative to the issues, as the physician who rendered it is competent to opine on these questions and he is Board Certified in Occupational Medicine, he reviewed the Veteran's records and scientific and epidemiologic studies, and he provided a definite opinion with explanations supporting his conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). The Board acknowledges Dr. T. H.'s opinions, that it is "conceivable" that the asbestos and/or chemical exposure "may have" been contributing factors to the Veteran's prostate cancer, and that it is as likely as not that the exposure "may have caused" the prostate cancer. See Dr. T. H., dated April 7, 2011, and October 3, 2012. However, both of these opinions are speculative, and neither contains supporting rationale, to establish the required nexus that is needed for service connection, and as such the Board places no weight on them. See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," or in the moving party's case, "may" or "possibly," without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). Similarly, Dr. C. B.'s statement as to the relationship between exposure to asbestos and other chemicals and the development of atrial fibrillation, "that there was always the possibility that such a relationship could exist but is yet to be statistically or scientifically established", is speculative, and cannot be used to establish the necessary nexus. Id. The Veteran has offered his own statements in support of the claim, mainly that his prostate cancer and atrial fibrillation were caused by his exposure to asbestos and toxic chemicals while working at the dump and burn pits during active duty service. See, e.g., Veteran's statements dated July 20, 2011, April 23, 2012, and November 6, 2012. The Veteran is competent to attest to his experiences while in service, and the Board finds them credible. Barr v. Nicholson, 21 Vet. App. 303 (2007) (the Veteran is competent to attest to his own in-service experiences). However, as a lay person, he does not have the medical or scientific expertise to render a competent opinion as to whether his prostate cancer and atrial fibrillation is related to asbestos or chemical or hazardous waste exposure. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In any event, the Veteran's contentions suggesting a relationship are outweighed by the medical evidence that explains why such a relationship is not likely. In sum, the competent and credible evidence of record shows that the Veteran's prostate cancer and atrial fibrillation did not have their onset during active service and are not related to any in-service disease, event, or injury, including chemical/asbestos exposure. Accordingly, the preponderance of the evidence is against these claims, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, entitlement to service connection for prostate cancer and atrial fibrillation is not warranted. ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for atrial fibrillation is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs