Citation Nr: 1452172 Decision Date: 11/25/14 Archive Date: 12/02/14 DOCKET NO. 12-12 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for thyroid cancer, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to March 1972 with additional service in the United States Naval Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In June 2013, the Veteran presented sworn testimony during a personal hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. FINDING OF FACT Thyroid cancer did not have its clinical onset in service and is not otherwise related to active duty; thyroid cancer was not exhibited within the first post service year. CONCLUSION OF LAW Thyroid cancer was not incurred or aggravated in service, and thyroid cancer may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & West Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2013); 38 C.F.R. § 3.159(b) (2014). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353 -56 (April 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1). As to the pending claim, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. Through a notice letter dated in August 2010 the RO notified the Veteran of the information and evidence needed to substantiate his claim. Moreover, VA satisfied the DVB Circular and M21-1, Part IV requirements by obtaining the Veteran's service personnel records and asking the Veteran questions specific to his claimed asbestos exposure in its August 2010 letter. The Board also finds that the August 2010 notice letter satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, should be obtained by the claimant and which evidence, if any, would be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C. F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter requested the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, a remand of this issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The evidence in the claims file includes private treatment records, statements from the Veteran, service treatment records (STRs), and service personnel records. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that needs to be obtained. Thus, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. Additionally, the Veteran was afforded VA examinations in November 2010 and September 2012 as to the pending claim, the reports of which are of record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination reports are sufficient, as they are predicated on consideration of the private treatment records in the Veteran's claims file, as well, as specific examination findings. The VA examiners considered the statements of the Veteran, and provided a rationale for the findings made, relying on and citing to the records reviewed, and provided findings sufficient for evaluation purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the pending claim has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. 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). Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b) (2014), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 497, 495-96 (1997). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Lay evidence may serve to support a claim for service connection by supporting the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran claims that he was exposed to asbestos during his military service, which resulted in him developing thyroid cancer. See Board's hearing transcript dated June 2013. Regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations. Nevertheless, VA has 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 information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. 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. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Here, the Veteran seeks entitlement to service connection for residuals of thyroid cancer, which he asserts was incurred during his military service. See Board's hearing transcript dated June 2013. The Veteran was stationed aboard the U.S.S. CORONADO, LPD111, which he indicated was under construction. See, e.g., Veteran's statement dated November 2012. The Veteran asserts that the Navy ship and equipment were covered in asbestos and lead-based paint. See decision review officer's (DRO) hearing transcript dated November 2010. Specifically, he alleges that his duties as a Boatswain's mate brought him into contact with lead paint and asbestos throughout his active duty service. See VA examination report dated November 2010. Although a review of the evidence demonstrates that there was a question of whether the Veteran was asserting service connection due to radiation exposure, there is no support for this in the record and the Veteran has indicated that he is not seeking service connection on that basis. See informal conference report signed December 2012. Accordingly, that theory of entitlement will be discussed no further herein. With regard to the claimed in-service asbestos exposure, the Veteran's service personnel records confirm that he served aboard the U.S.S. CORONADO, as a Boatswain's mate. See Veteran's DD-214. As noted above, in consideration of the Veteran's military occupation specialist (MOS) as a Boatswain's mate is an occupation involving likely exposure to asbestos. See VA Adjudication Manual M21-MR, Part IV.ii.2.C.9. Additionally, the Veteran has also submitted articles on asbestos and naval ships of that era that contained asbestos. The Board cannot disagree with the Veteran's contention in light of the provisions of M21-1, described above. Accordingly, the Board does not dispute that the Veteran was exposed to asbestos while performing his duties as Boatswain's mate; therefore, in-service asbestos exposure is conceded to this extent. The Veteran received in-service treatment for an enlarged thyroid 1971. However, a review of the Veteran's STRs demonstrates that he was not diagnosed with thyroid cancer during his military service. Pertinently, the Veteran's March 1972 service separation examination was absent any diagnosis or complaints of thyroid cancer. The Veteran's STRs from his Naval Reserve service indicated that he had a history of iodine and thyroid therapy for an enlarged thyroid; however, upon examination, the examiner noted "not palpable remainder of exam." See Reserve STRs dated November 1972. Crucially, post-service treatment records do not document treatment for thyroid cancer until November 1999. Specifically, an ultrasound revealed a thyroid nodule in November 1999. Thereafter, the Veteran underwent a thyroid scan, which showed that the thyroid nodule was non-functioning. See private treatment records dated November 1999. In March 2000, he underwent a needle biopsy. In April 2000, a surgical pathology report exhibited a diagnosis of papillary thyroid cancer. The Veteran subsequently underwent a thyroidectomy. See private treatment records dated April 2000. In May 2000, he had radioactive iodine treatment. Currently, he requires life time replacements of thyroid hormone. See VA examination dated November 2010. The Veteran was afforded a VA examination in November 2010 at which time the VA examiner reviewed the Veteran's claims file and confirmed a diagnosis of residuals of thyroid cancer. The VA examiner indicated several factors that could potentially cause thyroid cancer such as occupational and environmental exposures and hepatitis-c. However, the examiner did not find that the Veteran's thyroid cancer is related to his military service. See VA examination dated November 2010. The Veteran was afforded a second VA examination in September 2012. The examiner confirmed a diagnosis of residuals of thyroid cancer. The examiner opined, Unfortunately, the [V]eteran seems to believe that a carcinogen" exposure can lead to all types of cancer. This is not supported in the scientific literature. Certain exposures can lead to certain types of cancer. There is no evidence in the scientifically and medically established literature that the carcinogenic effects of asbestos exposure and lead-based paint exposure lead to thyroid cancer. See VA examination dated September 2012. The September 2012 examiner reported that he reviewed the articles pertaining to asbestos exposure provided by the Veteran and considered the Veteran's in-service exposure to asbestos. The examiner concluded that the Veteran's thyroid cancer is not caused by or due to any exposures to asbestos or lead-based paint. The Board finds the September 2012 VA examination report is entitled to significant probative weight. The VA examination report is based upon thorough review of the record as well as thoughtful analysis. The VA examiner noted the Veteran's report of in-service exposure to asbestos, to include lead-paint contentions, and development of his thyroid cancer. The VA examiner indicated that he considered the articles submitted by the Veteran when rendering his opinion. Furthermore, the VA examiner indicated that he relied upon the Veteran's medical records, clinical experience, and medical research in rendering his opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The VA medical opinions therefore clearly outweigh the articles submitted by the Veteran. See Nieves, supra The Board notes that the Veteran has submitted several articles asserting a possible association between asbestos exposure and his thyroid cancer. The Board has considered the articles, but finds that they are of limited probative value. The subject of the articles is sufficiently similar to raise the possibility of a link between in-service exposures and the current disability. However, the results were expressed as preliminary and the authors could not explain why the observed correlation would occur. As such, the articles raise only a speculative possibility of such a link. The September 2012 VA medical opinion is more probative, because it was a product of consideration of the Veteran's relevant history as well as medical literature and included a rationale specific to the Veteran. Accordingly, the evidence does not show that a nexus is as least as likely as not. Additionally, the Board finds that the Veteran's medical records do not indicate that his thyroid cancer existed in service or for many years thereafter. Thus, the presumptive provisions of 38 C.F.R. § 3.309(a) do not apply. The Board has considered the Veteran's contention that his thyroid cancer is related to active service. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that asbestos, lead paint fumes and other environmental hazards may lead to cancer and other chronic illnesses is commonly known and, therefore, the Veteran's testimony that his thyroid cancer is related to his in-service asbestos and lead paint exposure has some tendency to make a nexus more likely than it would be without such an assertion. However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The treatment records fail to note any conditions associated with asbestos exposure, to include lead-paint contentions, and no physician has stated or indicated that the Veteran's thyroid cancer is related to asbestos exposure or otherwise to active service. There is simply nothing in the record to indicate a medical nexus between his thyroid cancer, claimed as due to asbestos exposure, decades ago. The Board further observes that the Veteran's contentions in support of service are not supported by the September 2012 VA examiner, who specifically considered his lay assertions and any such inferences contained in the record in the negative nexus opinion. The Board finds the 2012 VA examination report more probative than the Veteran's statements. The examiner is a medical professional and was able to review the overall record, including the Veteran's history and opinions. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the November 2010 and September 2012 VA examination reports, and the evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's claim that he suffers from residuals of thyroid cancer, which is related to his military service to include exposure to asbestos and lead-paint. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for thyroid cancer is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs