Citation Nr: 1456881 Decision Date: 12/30/14 Archive Date: 01/09/15 DOCKET NO. 11-09 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for cancer of the larynx claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to January 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision by the RO in Jackson, Mississippi that denied service connection for cancer of the larynx, claimed as throat cancer. Jurisdiction of this appeal is currently with the RO in Providence, Rhode Island. A Travel Board hearing was held at the RO in May 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. In April 2014, the Board remanded this case. FINDING OF FACT Cancer of the larynx was not manifest during service or within one year of service and is not otherwise attributable to service, to include as due to asbestos exposure or claimed ionizing radiation exposure. CONCLUSION OF LAW Cancer of the larynx was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a May 2010 letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service treatment records (STRs) and service records as well as post-service records have been obtained and associated with the record, to the extent possible. The RO has attempted to obtain a copy of the Veteran's separation documents from the National Personnel Records Center (NPRC), but the National Personnel Records Center has indicated that such records are unavailable. However, the Veteran's available personnel records and STRs are of record to include his separation examination. To the extent that there are missing records, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran was also provided with a VA examination which contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The claim was remanded and there was compliance with this remand. In obtaining additional medical information, the Board is satisfied there was compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, a malignant tumor will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). In addition, as pertains to asbestosis-related lung disorders, 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). 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. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. Id. " Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, 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. M21-1, Part VI, Subpart ii, Chapter 2, §C(9)(f). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos-related claim. See VAOPGCPREC 4-2000. The Court has held that neither Manual M21-1 nor the DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) create a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines that serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers, and they direct that the raters develop the record, ascertain whether there is evidence of exposure before, during, or after service, and determine whether the disease is related to the putative exposure. Thus, 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. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The Veteran contends that his cancer of the larynx is the result of his exposure to asbestos during his military service aboard the USS Independence CVA-62 and the USS Francis Marion APA 249. He has also contended that the disability may be due to exposure to ionizing radiation, although he seemed to withdraw this contention at his Board hearing. He has also contended that he began smoking cigarettes in service, but had stopped smoking many years ago. In correspondence of records including a June 2010 statement, he indicated that he was exposed to asbestos while sleeping under asbestos-covered pipes in the sleeping quarters aboard the ships. He indicated that he slept very close to asbestos-covered pipes aboard the USS Independence for more than two years, and was also exposed to asbestos in his barracks on Parris Island. At the outset, service connection for disability on the basis that it resulted from disease or injury attributable to the use of tobacco products during a Veteran's active service is prohibited by law. See 38 U.S.C.A § 1103(a); see also 38 C.F.R. § 3.300(b). By its terms, 38 U.S.C. § 1103(a) is applicable only to claims filed after June 9, 1998. Because the Veteran's claim was received after that date, the statute prohibits service connection based on nicotine dependence acquired in service. Further, although the Veteran has made some allegations that his laryngeal cancer is a result of exposure to ionizing radiation, in July 2010, the Department of the Army Naval Dosimetry Center indicated that there were no reports of occupational exposure to radiation pertaining to the Veteran. Thus, service connection based on exposure to ionizing radiation is not warranted. The Veteran primarily contends that his exposure to asbestos resulted in his laryngeal cancer. Competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). The Veteran has credibly report asbestos exposure. In addition, the Veteran is competent to report observable matters. However, the question of whether he has asbestos-related respiratory disability which is related to service involves matters which are complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The case at hand therefore contains complex medical questions, which is the reason why it was remanded for a medical opinion. In sum, a review of the record including the normal separation examination and records dated in the 2000's relative to the diagnosis and treatment of laryngeal cancer show that the Veteran did not manifest laryngeal cancer during service or within the initial post-service one year presumptive period. However, he credibly reported asbestos exposure during service and was diagnosed with laryngeal cancer in 2009, many decades after service. A VA medical opinion was obtained in June 2014. The examiner opined that it is less likely than not that the laryngeal cancer is related to military service. The examiner noted that the Veteran was exposed to asbestos while on active duty and was diagnosed with chondrosarcoma of the larynx in 2009, undergoing a total laryngectomy. According to the examiner, although extensive review of medical research was performed, at this time a causal relationship between chondrosarcoma and asbestos exposure has not been identified. The examiner concluded that a link has not been established between the Veteran's exposure to asbestos and this form of cancer. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included review of the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Veteran's own opinion that inservice asbestos exposure or service (otherwise) resulted in the laryngeal cancer is simply outweighed by the medical professional's opinion in this case. The Veteran is competent to report his symptoms, but nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed conditions. Therefore, the medical expert opinion is more probative regarding the causation question in this case. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) Accordingly, service connection for the claimed laryngeal cancer to also include as due to asbestos exposure, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim and it must be denied. ORDER Service connection for laryngeal cancer is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs