Citation Nr: 1337427 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 06-18 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for plasmacytoma of the left sinus cavity, claimed as due to asbestos exposure. 2. Entitlement to service connection for plasmacytoma of the left submandible, claimed as due to asbestos exposure. REPRESENTATION Veteran represented by: James G. Fausone, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). The Veteran served on active duty from August 1951 to August 1955. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in February 2008; a transcript of the hearing is associated with the claims files. In June 2008, the Board issued a decision that denied the claims on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2009, the Court issued an Order granting a joint motion of the parties (Joint Motion) and remanded the case to the Board for further action. In April 2010, the Board remanded the case to the RO for further development. In February 2011, the Board issued a decision that denied the claims on appeal. The Veteran appealed the Board's decision to the Court. In June 2012, the Court issued a Memorandum Decision vacating the Board's February 2011 decision, and remanded the case to the Board for further action. In February 2013, the Board remanded the case to the RO for further development in compliance with the Court's order. The case has now been returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA. FINDING OF FACT Plasmacytomas of the left sinus cavity and left submandible were not present within a year of the Veteran's discharge from service and are not etiologically related to service. CONCLUSIONS OF LAW 1. Plasmacytoma of the left sinus cavity was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Plasmacytoma of the left submandible was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in June 2004, July 2004, and August 2006. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of either claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. In this regard, the Board notes that VA has obtained the Veteran's service treatment records, as well as post-service treatment records. The Veteran was also provided an appropriate VA examination in response to the claim. In addition, the Veteran was afforded a hearing before the Board. In compliance with the Board's February 2013 remand, a VA examination was obtained in July 2013 to assess the etiology of the Veteran's plasmacytomas of the left sinus cavity and left submandible. The Board has reviewed the examination report and finds that it substantially complies with the directives articulated in the aforementioned remand. See Stegall v. West, 11 Vet. App. 268 (1998). All known and available records relevant to the issues on appeal have been obtained, and the Veteran has not contended otherwise. Accordingly, the Board will address the merits of the claims of entitlement to service connection for plasmacytomas of the left sinus cavity and the left submandible. Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more of continuous, active service during a period of war or after or after December 31, 1946, and manifests a malignant tumor to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols in these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, VA must determine whether service records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between that exposure and the claimed disease. M21-1, Part IV, 7.21(d)(1) (October 3, 1997). Radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part IV, 7.21(a)(1) (October 3, 1997). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part IV, 7.21(c) (October 3, 1997). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacturing and servicing of friction products such as clutch facings and brake linings, manufacture and installations of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21-1, Part IV, 7.21(b)(1) (October 3, 1997). 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 alleged asbestos exposure in service; see VAOPGCPREC No. 04-00. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that he was exposed to asbestos while serving aboard the destroyer U.S.S. Ingraham, DD-694, and that his plasmacytomas of the left sinus cavity and left submandible are due to such exposure. In this regard, the Veteran's DD Form 214 establishes that he spent three years and nine months overseas or on sea duty, with his most significant assignment having been aboard Ingraham. Service personnel records show the Veteran served aboard Ingraham with few interruptions from December 1951 to July 1955. Service treatment records do not show that he was found to have plasmacytoma. The report of his medical examination for separation in August 1955 shows that the sinuses, nose, and mouth were found to be normal on clinical evaluation. The Veteran does not assert, and the evidence does not show, that the disabilities at issue were manifested in service or within a year after discharge from service. Accordingly, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) is not for application. Post-service treatment records include private records dated from September 1994 through July 1998 from the H. Lee Moffett Cancer Center and Research Institute, which show treatment for plasmacytoma of the nasal cavity. Such records are silent in regard to any association between the nasal plasmacytoma and active service in general or asbestos exposure in particular. In May 2002, the Veteran presented to the VA primary care clinic to establish entitlement to care. He was noted to have a history of plasmacytoma of the left sphenoid sinus in 1993. It was also noted that one of the Veteran's brothers had died of brain cancer and two other brothers had died of pancreatic cancer. VA outpatient treatment records show the Veteran developed a new left submandibular mass in September 2002. A May 2003 VA oncology record shows the Veteran reported a history of asbestos exposure and previous treatment for nasal plasmacytoma. Examination showed a left submandibular mass consistent with plasmacytoma but a diffuse process such as multiple myeloma was to be ruled out. The Veteran was referred for further studies, and a VA oncology note dated in July 2003 shows a clinical impression of recurrent solitary plasmacytoma of the left submandibular space. He continued thereafter to be treated by the VA hematology/oncology clinic through March 2004; the treatment records are silent in regard to an association between the submandibular plasmacytoma and service. Private treatment records from Dr. CAB dated from July 2003 through October 2004 show treatment for submandibular plasmacytoma. Per the history provided by Dr. CAB, the Veteran's history of plasmacytoma dated from 1993 when he developed nosebleeds and was found to have a left frontal sinus mass, later revealed to be plasmacytoma. He developed lesions under the left mandible in approximately November 2002. There is nothing in the treatment records from Dr. CAB showing any association between the submandibular plasmacytoma and either active service or asbestos exposure. In May 2004, the Veteran submitted a VA asbestos exposure questionnaire in which he reported that he served aboard Ingraham from December 1951 to August1955, a period that included two overhauls during which he remained aboard the ship. He denied occupational exposure to asbestos after discharge from service. In a June 2004 statement, the Veteran asserted that his duties aboard Ingraham required him to inspect all areas of the ship. He stated Ingraham had compartment bulkheads that were covered with padded asbestos and all pipes and wiring were coated with asbestos. In his June 2005 Notice of Disagreement, the Veteran attached a paragraph from an unidentified treatise stating that cancers of the lung, gastrointestinal tract, larynx, pharynx and urogenital systems (other than prostate) are associated with asbestos exposure. The Veteran posited that if cancers of the larynx and pharynx are associated with asbestos, then logically cancer of the sinus and mandible should be as well. In an August 2005 letter, the Veteran asserted that ships of the Ingraham era used asbestos as the primary fire retardant, and asbestos was accordingly present in high concentrations throughout the ship. The Veteran denied a history of heavy smoking and denied occupational exposure to asbestos after discharge from service. During a February 2008 hearing before the Board, the Veteran testified that he was in good health prior to service. He asserted that during service he was a radar operator aboard Ingraham; his primary work area was in the Combat Information Center (CIC); he was also compartment master throughout the ship and stood watch. He stated that Ingraham was a Sumner class destroyer that used asbestos to insulate the steam pipes and also used asbestos throughout the bulkheads. He further stated that the compartment in which he lived was right above the ammunition storage area, which he also believed to be protected by asbestos. He stated that his sinus disorder was diagnosed in approximately 1992, although he experienced occasional nosebleeds, sometimes heavy, prior to that date. He asserted that his submandibular disorder was diagnosed in approximately 2000. He indicated that his treating physicians believed the cancers were related to some environmental cause, although without citing asbestos specifically. He cited to a treatise entitled Everyone's Guide to Cancer Therapy, pages 676-677 as supporting his theory of causation. An extract from Everyone's Guide to Cancer Therapy (fourth edition) is of record The section referenced by the Veteran is entitled "Multiple Myelomas." In relevant part, page 677 has a paragraph titled "what causes it" that states the cause of multiple myeloma is not known, although exposure to radiation may be a factor in some cases. There is little evidence that chemicals cause myelomas in humans, although some reports have linked multiple myeloma with benzene or asbestos. There have been reports of two or more family members with multiple myeloma, but the genetic influence is minimal. There is no evidence that allergies, chronic infections, or other immune-stimulating conditions play a role. VA oncology notes show that in 2008 the Veteran developed lesions of the left scapula and left humerus suggestive of multiple myeloma rather than solitary plasmacytoma. An October 2008 computed tomography (CT) scan was positive for myeloma involvement of both scapulae, the right sixth rib and the left seventh rib. In July 2010, the Veteran underwent a VA medical examination, performed by a physician who reviewed the claims file. The examiner noted the Veteran's documented medical history in detail, as well as the Veteran's subjective report of his symptoms. The Veteran asserted that he believed he had been exposed to asbestos in service, and that on one occasion he was made to wear a tag and to be on an upper deck while the lower deck was being washed with an unknown substance. The Veteran believed the exercise was designed to determine if the tags were able to pick up radiation exposure; however, he did not believe he had been personally exposed to any radiation during the test. Upon examination, the examiner diagnosed plasmacytomas of the left sinus cavity and left submandibular, status post radiation therapy with recurrence in 2004 and progression to light chain myeloma in 2008. The examiner opined that it was "less likely than not" that the Veteran's plasmacytomas with progression to multiple myelomas were related to active service, to include exposure to asbestos. In providing such opinion, the examiner stated that careful review of medical literature did not find a causal relationship between asbestos and plasmacytoma/multiple myeloma. Specifically, the examiner cited literature review asserting that exposure to ionizing radiation is the most convincing risk factor for multiple myelomas; environmental and occupational exposures have been implicated in the etiology of multiple myeloma but the role of occupational exposures in the risk of multiple myeloma development remains unclear. In January 2011, the Veteran's representative submitted an internet article entitled "Multiple Myelomas." In relevant part, the article states the causes of multiple myeloma have not been determined, but a number of associations have been identified: (1) decreased immune system functioning (the immune systems of older individuals may be less efficient at detecting and destroying cancer cells); (2) genetic (hereditary) factors, suggested by the increased incidence in some ethnic groups and among family members; (3) occupational factors, suggested by the increased incidence among agricultural, petroleum, wood and leather workers and cosmetologists; (4) long-term exposure to herbicides, pesticides, petroleum products, heavy metals, plastics, and dusts such as asbestos; (5) radiation exposure, as among Japanese atomic bomb survivors, nuclear weapons workers, and medical personnel such as radiologists; and (6) Kaposi's sarcoma-associated herpes virus, found in the blood and bone marrow cells of many multiple myeloma patients. In addition to the treatise cited above, the Veteran's representative asserted that the Examination Protocol for Exposure to Asbestos by the U.S. Department of Homeland Security states that asbestos exposure can cause asbestosis, bronchogenic carcinomas, mesothelioma and gastric carcinoma; it has also been associated with multiple myeloma and renal carcinoma. Thus, the Veteran's representative asserts that the Department of Homeland Security has advised its examiners to watch for multiple myeloma when examining those who have been exposed to asbestos. In January 2013, the Veteran's representative submitted an article entitled, "Asbestos Exposure and Malignant Lymphomas - a review of the epidemiological literature." The abstract section of the article notes that there has been a significant number of case reports on the occurrence of lymphomas in people previously exposed to asbestos. This raises the question of whether corresponding results are available from analytical epidemiological studies. In the present review of epidemiological literature, the results of the six cohort and 16 case-control studies that were published up to 1999, are discussed, as they directly or indirectly shed light on the above question. In a February 2013 decision, the Board found the July 2010 VA examiner's opinion to be insufficient for purposes of adjudication because it lacked supporting analysis and referred to medical treatise evidence that is inapplicable or contradictory. In significant part, the examiner relied on literature cited in the opinion above; however, the examiner failed to explain that the Veteran's condition could not have been caused by an "environmental factor" such as exposure to asbestos. In July 2013, the Veteran underwent a second VA examination, performed by a physician who reviewed the claims files. The examiner noted the Veteran's reported history as a radio operator and deck hand aboard ship during service. Upon examination, the examiner diagnosed plasmacytomas of the left sinus cavity and left submandibular and multiple myeloma. With respect to whether the Veteran's current plasmacytomas of the left sinus cavity and left submandible were at least as likely as not etiologically related to the Veteran's active service, to include exposure to asbestos, the examiner opined that she could not resolve the issue without resorting to speculation. The examiner noted that she reviewed the medical literature and the Veteran's medical records. The examiner stated that the medical literature did not support an etiological relationship between asbestos exposure and plasmacytomas/multiple myeloma. Specifically, the examiner noted that the article entitled "Asbestos Exposure and Malignant Lymphomas - a review of the epidemiological literature," as well as the Examination Protocol for Exposure to Asbestos by the U.S. Department of Homeland Security note possible associations between asbestos exposure and plasmacytomas/multiple myeloma; however, she also explained that they did not substantiate a causal relationship. The examiner further noted that the article indicates that "For plasmacytoma, the results of the various case control studies were likewise strongly divergent" and "not statistically significant." In this case, the Board has no reason to doubt that the Veteran was exposed to asbestos in service, as contended. Never the less, the Board finds that the preponderance of the evidence establishes the Veteran's plasmacytomas are not related to asbestos exposure. Neither plasmacytoma nor multiple myeloma is a disorder cited by the M21-1 as associated with asbestos exposure. In July 2010, a VA examiner provided an opinion against the claim. Moreover, in July 2013, a VA physician examined the Veteran, reviewed the Veteran's pertinent history, and reviewed the medical literature of record. She essentially determined that an opinion linking the Veteran's plasmacytomas to asbestos exposure would require speculation. She stated that while the article entitled "Asbestos Exposure and Malignant Lymphomas - a review of the epidemiological literature," and the Examination Protocol for Exposure to Asbestos by the U.S. Department of Homeland Security note possible associations between asbestos exposure and plasmacytomas/multiple myeloma, they did not substantiate a causal relationship. The examiner further found that such article indicates that "For plasmacytoma, the results of the various case control studies were likewise strongly divergent" and "not statistically significant." The Board notes that the Veteran has submitted treatise articles asserting a possible association between asbestos exposure and multiple myeloma. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, the treatise articles are not combined with an opinion by a medical professional supporting the Veteran's contention that his plasmacytomas are related to his in-service asbestos exposure. Thus, the medical evidence merely shows that the Veteran's plasmacytomas might be related to his exposure to asbestos in service; it does now show that the possibility is within the range of probability as opposed to pure speculation or remote possibility. The Board acknowledges that the Veteran appears to sincerely believe that his plasmacytomas are related to active service. However, there is nothing in the record that shows that he is competent to state an opinion with respect to the etiology of his plasmacytomas. Accordingly, the Board must conclude that service connection is not warranted for the claimed disabilities. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER Service connection for plasmacytoma of the left sinus cavity, claimed as due to asbestos exposure, is denied. Service connection for plasmacytoma of the left submandible, claimed as due to asbestos exposure, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs