Citation Nr: 1314037 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-40 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as secondary to asbestos exposure. 2. Entitlement to service connection for hypertension, to include as secondary to prostate cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional office in Houston, Texas. In the Veteran's substantive appeal, a hearing before the Board was requested and one was scheduled for August 8, 2012. However, the Veteran did not appear for the hearing and did not offer an explanation as to why he failed to do so. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). This matter was previously remanded by the Board for further development in August 2012. The Board is now satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran did not exhibit prostate cancer in service and it is not otherwise shown to be associated with service, including as a result of asbestos exposure. 2. Resolving all doubt in the Veteran favor, the evidence of record is in equipoise as to whether the Veteran's hypertension is related to service. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by service to include as due to asbestos exposure; and prostate cancer may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for the establishment of service connection for hypertension have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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 any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. Prior to initial adjudication of the Veteran's claims for service connection, a letter dated in December 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. This letter indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining the evidence. The December 2008 notice letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded VA examinations in December 2009 and October 2012 and the results of which have been included in the claims file for review. The most recent VA examination in October 2012 involved review of the claims file and thorough examinations of the Veteran and the opinion was supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. Additionally, as stated above, the Board finds there has been substantial compliance with its August 2012 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) As stated above, the Veteran was afforded an additional VA examination. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Merits of the Claims The Veteran contends that his prostate cancer is related to his asbestos exposure during his military service. He also contends that his hypertension is secondary to his prostate cancer. Governing Laws and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may also be granted for chronic disabilities such as prostate cancer and hypertension if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In this context, given that prostate cancer and hypertension are considered as chronic diseases in 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) do apply to the Veteran's claims. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Legal Analysis Prostate Cancer The Veteran contends that he has developed prostate cancer as a result of having been exposed to asbestos during active duty service. As stated in the Board's March 2013 remand, asbestos exposure during service has been conceded. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). Regarding the M21-1MR's exclusion of prostate cancer from urogenital cancers that may result from inhalation of asbestos fibers, the Board notes that VA's General Counsel determined that the M21-1MR provisions discussing asbestos and asbestos-related diseases generally are not substantive in nature. VAOPGCPREC 4-2000 (April 13, 2000). Rather, the manual provisions were designed in order to provide VA with guidance in developing claims involving asbestos exposure. According to the record, there is no medical evidence that the Veteran was diagnosed or treated for prostate cancer while in service. In this regard, the Board notes that the Veteran's February 1971 entrance examination report indicates the Veteran's genitourinary system as normal. The Veteran's service treatment records are also devoid of any mention of any complaint or diagnosis of a genitourinary disorder. Therefore, there is no evidence of any in-service diagnosis of a prostate condition. It is clear, however, from the post-service medical records that the Veteran has been diagnosed with prostate cancer. Private treatment records from Dr. D.S.H., dated February 2003 to April 2003, and from Dr. R.K., dated June 2006, indicate the Veteran was treated for elevated prostate-specific antigen (PSA) and biopsies were taken. In June 2006, a biopsy showed "Gleason 6 adenocarcinoma of the prostate." The Veteran was afforded a VA examination in October 2012. After reviewing the Veteran's in-service, VA, and private treatment records, the examiner confirmed the Veteran's diagnosis of prostate cancer and noted that the Veteran had a history of prostate cancer and was currently in remission. The examiner opined that it was less likely than not that asbestos exposure caused the Veteran's prostate cancer. The examiner cited to medical treatises discussing the connection between asbestos and prostate cancer. Ultimately, the medical treatise determined that "[m]ore research and studies [were] required to provide definitive conclusions on [the] relationship." Here, the examiner's determination is consistent with the evidence of record. The in-service treatment records revealed no complaint, treatment, or diagnosis of a prostate disorder. In addition, none of the post-service treatment records offer an opinion that the Veteran's prostate cancer is related to his military service or his asbestos exposure. Instead, these same post service records indicate an onset of prostate cancer in June 2006, many years after service. The Board, therefore, finds that the October 2012 VA examiner provided a negative nexus with regard to the Veteran's claim for service connection based on in-service asbestos exposure. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos-related disease related to the asbestos exposure in service. See VAOGCPPREC 04-00. In this case, the record is absent of a positive medical nexus. In addition, the only evidence of record in support of the Veteran's claim consists of his own lay statements. The Board finds that the Veteran is not competent to relate his prostate cancer, diagnosed many years after service, to his period of service to include asbestos exposure. Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. Here, despite the Veteran's contentions, given the complexity of the particular question of etiology and the fact that a nexus opinion may not be rendered based on personal observation, the Board finds that the Veteran is not competent to opine on the etiology of his prostate cancer. As such, the Board finds that the Veteran is not entitled to service connection for prostate cancer on the basis of asbestos exposure. In addition, direct service connection for prostate cancer must also be denied. There is no evidence of an in-service diagnosis of prostate cancer and no medical nexus relationship between the currently diagnosed prostate cancer and his active duty service has been shown. Furthermore, as stated above, while the Veteran has been treated for elevated PSA levels since 2003, the Veteran was diagnosed in June 2006; approximately 33 years since separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. As such, service connection for prostate cancer is not warranted on a direct basis. Unfortunately, although the Veteran has established that he has been diagnosed with prostate cancer, the evidence of record does not establish that this condition is the result of a disease or injury in active duty service. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for prostate cancer. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit sought on appeal is accordingly denied. Hypertension Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm, or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater, with a diastolic blood pressure of less than 90mm. Id. Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). According to the evidence of record, the Veteran's blood pressure at entrance into service in February 1971 was 124/80. In February 1973, the Veteran's blood pressure was 130/84 and 122/78. However, at the Veteran's separation examination in February 1973, his blood pressure was 122/96. The Veteran's post-service treatment records reveal he has been diagnosed and treated for hypertension. In October 2012, the Veteran underwent a VA examination for his hypertension. The examiner noted that the Veteran had an abnormal blood pressure reading in service and in 2001. The Veteran was diagnosed in 2002. The examiner noted that the Veteran's elevated blood pressure predated his prostate cancer diagnosis, as such it was unlikely that his prostate cancer caused his hypertension. He also stated he was unable to find any evidence based on the medical studies that indicated that prostate cancer causes or aggravates hypertension. The examiner, however, noted that it was clear that the Veteran had documented elevation of blood pressure while he was in the military and that he stated to the examiner that he had been on and off blood pressure medication since 1973. Turning to the Veteran's claim of secondary service connection, the Board concludes that entitlement to service connection for a prostate cancer is not warranted. Thus, as a matter of law, the Veteran's claim for service connection for hypertension as secondary to prostate cancer must fail. Insofar as the condition to which the Veteran claims this disability is secondary has not been service connected, the claim for secondary service connection must also fail. See 38 C.F.R. § 3.310. For this reason, the Veteran's claim for secondary service connection must be denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). However, on the basis of direct service connection for hypertension, upon careful review of the Veteran's claims file and by granting the Veteran the benefit of the doubt, the Board finds that the Veteran's hypertension is related to his military service. It is clear that the Veteran has a current diagnosis for hypertension and as such, the first element of service connection is satisfied. The Board also acknowledges that the Veteran's service treatment records indicate elevated blood pressure in February 1973. The second element of a service connection claim is therefore, satisfied as well. With respect to third element of service connection, that of nexus or relationship, there is no medical evidence of record relating the Veteran's hypertension with his military service. As noted above, no specific etiology opinion from a VA or private examiner was offered as to whether it was related to his military service. Nevertheless, the Board has determined that the evidence supports a finding that the Veteran's hypertension was incurred during, or caused by, military service is in equipoise. In making his determination the Veteran is competent to state that he has been treating his blood pressure with medication on and off since 1973. The Board acknowledges that competent testimony is limited to that which the witness has actually observed and is within the realm of his or her personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Veteran is competent to state his hypertension was chronic since service. Also, given the observation by the VA physician that elevated blood pressure readings had been recorded in service and that the Veteran had taken medication for this condition over the years, the Board finds the evidence is at least in relative equipoise on this issue. When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for prostate cancer, to include as secondary to asbestos exposure, is denied. Entitlement to service connection for hypertension is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs