Citation Nr: 1333318 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-22 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of rectal cancer to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to May 1985. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that in light of the medical evidence of record showing a history of diagnosed rectal cancer as opposed to colon cancer, the Board has recharacterized the issue on appeal as for service connection for residuals of rectal cancer. In April 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in St. Petersburg, Florida. A transcript of the proceeding has been associated with the claims file. In October 2011, the Board remanded the Veteran's claim for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's residuals of rectal cancer are etiologically related to service, to include claimed in-service asbestos exposure; rectal cancer is not shown to have manifested within one year of service. CONCLUSION OF LAW Service connection for residuals of rectal cancer to include as due to asbestos exposure is not warranted, nor may it be presumed. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for service connection for residuals of rectal cancer, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that an August 2008 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The August 2008 letter informed the Veteran of what information or evidence was needed to support his claim, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The August 2008 notice also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any outstanding, relevant treatment records for VA to obtain. In this regard, the Board notes that in October 2011, the Board remanded the Veteran's claim to obtain a complete copy of his personnel record, VA treatment records dated since June 2008, and his records from the Social Security Administration (SSA). Also, the Board directed that the AMC seek records pertaining to whether an Army mess hall in Bad Kissingen, Germany was found to have asbestos around 1984. Pursuant to the Board's remand directives, a copy of the Veteran's personnel file and his VA treatment records dated since June 2008 have been associated with the claims file. Also, in November 2011, the AMC requested a copy of the Veteran's SSA records, and a November 2011 response reflects that the Veteran's folder had been destroyed. The Veteran was notified of this by way of a February 2013 letter, which also advised that he should submit the records or the location thereof to VA as soon as he could otherwise a decision might be made after 10 days. See 38 C.F.R. § 3.159(e). Also, pursuant to the Board's remand directive, the AMC requested verification from the Army as to whether there was an asbestos removal project in 1984 in the Army mess hall in Bad Kissingen, Germany, and a February 2013 response was negative (reporting that there was no such asbestos removal, only minor repair work). Therefore, the Board finds that there was substantial compliance with the Board's remand directives, and that the record contains sufficient evidence to make a decision on the Veteran's claim. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that the Veteran has not been provided with a VA examination relating to his claim. In this particular case, however, the Board finds that no VA examination is required because there is no evidence of in-service asbestos exposure other than the Veteran's own lay statements which, as explained in greater detail below, the Board finds to be not competent. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service when it properly rejects the Veteran's lay testimony as being not credible). The Board adds that the Veteran has not offered any theory of entitlement other than in-service asbestos exposure, and none is otherwise raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement, but rather, only as to those theories for which the evidence is sufficient to reach the low threshold necessary to trigger the duty to assist). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis 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 claimant. 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. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to claims involving alleged exposure to asbestos in service, the Court has observed that there has been no specific statutory guidance with regard to claims for service connection for asbestos-related diseases, nor has the Secretary promulgated any regulations. However, VA issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (hereinafter "DVB Circular"), which provides some guidelines for considering compensation claims based on exposure to asbestos. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The DVB Circular was subsumed verbatim as § 7.21 of the Adjudication Procedure Manual, M21-1, Part VI (currently revised as M21-1MR, Part IV, Subpart ii, Chapter 2, Section C). See also VAOPGCPREC 4-00 (Apr. 13, 2000). The M21-1MR provisions acknowledge that inhalation of asbestos fibers can result in, among other things, cancers of the gastrointestinal tract. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Also noted is that disease-causing exposure to asbestos may be brief and/or indirect, and that the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. The Veteran served on active duty from September 1983 to May 1985. He claims that he has residuals of rectal cancer that was caused by in-service asbestos exposure. As an initial matter, private treatment records in the claims file reflect the Veteran's history of complaints of buttock pain, constipation, and bleeding in April 2002 (which records note he reported pain for three months), and ultimately a diagnosis of rectal carcinoma around September 2002 followed by resection surgery in January 2003, as well as chemotherapy, and radiation treatment. There is no evidence of complaints prior to that time. Also, there is no evidence of diagnosed cancer within one year of his discharge from service in 1985. See 38 C.F.R. § 3.309(a) (2013) (presumptive service connection for certain chronic diseases, including tumors, malignant). The Veteran testified at the Board hearing that sometime around the summer of 1984, while serving in Bad Kissingen, Germany, he had been working in the mess hall for about a year when it was shut down for two months during which it was "cleaned up." He testified that they were not made aware at the time that there was asbestos removal taking place, but that "everybody started getting sick in the mess hall" and the walls were peeling, and that he later came to believe that it was due to asbestos. See Transcript at 4, 14. The Board adds that his service personnel records reflect that he served as a food service specialist in Germany from January 1984 to May 1985. With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issue at the beginning of the hearing, and testimony was obtained concerning the Veteran's contentions and treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The AMC requested verification from the Army (Human Resource Command) as to whether asbestos removal was performed in 1984 in the Bad Kissingen, Germany mess hall. In February 2013, a response was received from the Army Installation Management Command, G4 (Public Works) explaining that although some minor repairs were performed at that facility, there was no asbestos removal project between 1984 and 1985. The Board notes that there is no other documentation of asbestos at the Army installation in Bad Kissingen, Germany in 1984. In light of the lack of evidence of exposure to asbestos in service, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for residuals of rectal cancer due to asbestos exposure in service. As discussed above, the Army Installation Management Command, G4 (Public Works) has verified that there was no asbestos removal project in 1984 there, and the Board notes that there is no other documented evidence of in-service asbestos exposure in the claims file. The Board acknowledges the Veteran asserts that he was in fact exposed to asbestos in service in the Bad Kissingen mess hall. In that regard, the Board also acknowledges that he is competent to report having seen peeling walls in the Bad Kissingen mess hall and his fellow soldiers being sick. Even so, the Board notes that the Veteran has not shown himself to be qualified to identify asbestos. In fact, he testified at the Board hearing that at the time that the Bad Kissingen mess hall was closed for two months for cleaning or repairs in 1984, he was not aware of any asbestos removal or clean up. Rather, he testified that he now believed that is what took place. The Board is certainly sympathetic to his having incurred rectal cancer, and that he appears sincere in his belief that it is due to asbestos exposure in the Bad Kissingen mess hall. The Board has also considered the articles submitted by the Veteran discussing generally the relationship between asbestos exposure and colon or colorectal cancer. However, as the preponderance of the evidence is against finding that the Veteran was exposed to asbestos, the Board cannot grant the claim. There is no indication that the disability is otherwise related to service. See Robinson v. Peake, 21 Vet. App. 545 (2008). Therefore, for the above reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for residuals of rectal cancer to include as due to asbestos exposure, and the benefit-of-the-doubt rule is not for application. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for residuals of rectal cancer due to asbestos exposure is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs