Citation Nr: 1756023 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 14-25 149A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hairy cell leukemia, to include as due to exposure to asbestos. 2. Entitlement to service connection for a sinus condition, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1962 to November 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2011 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. These issues were previously before the Board in October 2016, where they were remanded for additional development. Subsequently, the Veteran was provided an Asbestos Verification Review in May 2017 and a VA medical examination in July 2017. Accordingly, the Board's October 2016 remand decision has been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial, and not strict, compliance with the terms of the remand order is required). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's hairy cell leukemia was not caused by any minimal in-service exposure to asbestos, and is not otherwise related to service, nor was it first manifested within one year of separation. 2. The Veteran's sinus condition was not caused or aggravated by any minimal in-service exposure to asbestos, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hairy cell leukemia, to include as due to exposure to asbestos, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a sinus condition, to include as due to exposure to asbestos, have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), and implementing regulations, impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.26(a) (2017). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran to procure service treatment records and additional private medical records identified by the Veteran, and also provide the Veteran any necessary examinations. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and assistance provisions. Adequate notice was provided to the Veteran in January 2011 and July 2012 letters. Additionally, the Veteran was provided thorough VA examinations. The Board further finds that all relevant evidence has been obtained in conjunction with the claims on appeal, including the Veteran's service treatment records, and all post-service VA and private treatment records identified by the Veteran. II. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). Additionally, service connection may also be granted for certain enumerated chronic diseases, including leukemia, that manifest to a compensable degree within one year of the veteran's separation from service, or where the veteran shows continuity of symptomatology. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran claims that the conditions he experienced in-service, including a combination of coal dust, extreme cold and heat in a short period of time, and exposure to asbestos, caused him to develop a sinus infection, chronic breathing problems, and nasal polyps. The Veteran also claims that exposure to these irritants contributed to his development of hairy cell leukemia. The Veteran claims that "[a]sbestos was widely used in construction and building materials of most commercial building[s]" during his period of service. He further claims that the building he lived in, and the ships that he was transported in, were built with asbestos. Similarly, the Veteran's wife, in a written statement, claims that when the Veteran went into the Army, he did not have any sinus issues, but that when he left, he had a mild form of sinus problems that gradually worsened. She contributes the Veteran's conditions to exposure to "coal dust, extreme cold and extreme heat in such a short period of times (sic) and inhaling asbestos fibers in the living quarters, the workplace and transport ship." While there are no statutes or regulations specifically addressing service connection for asbestos-related diseases, VA, in 1988, issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1 Manual Rewrite, Part IV, Subpart ii, 2.C.2 (Service Connection for Disabilities Resulting from Exposure to Asbestos) (hereinafter "M21-1MR, IV.ii.2.C.2"). Additionally, an opinion by the VA General Counsel issued in April 2000 discussed the provisions of the M21-1 regarding asbestos claims and concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-2000. Based on the foregoing guidance, VA must analyze the Veteran's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The United States Court of Appeals for Veterans Claims has found that provisions in former paragraph 7.68 (predecessor to M21-1MR, IV.ii.2.C.2 cited above) of VBA Manual M21-1 did not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd sub nom., Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board notes that the provisions of the M21-1, while not binding on the Board, can serve as a reference when necessary. Accordingly, when deciding a claim for service connection for a disability resulting from an exposure to asbestos, VA must determine whether service records demonstrate evidence of asbestos exposure during service, develop whether 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, keeping in mind the extended latency period between first exposure and development of a disease. M21-1MR, IV.ii.2.C.2.h. Here, the medical evidence of record shows that the Veteran developed hairy cell leukemia, which is currently in remission, in 2003. The medical evidence also establishes that the Veteran has sinus conditions, including acute sinusitis, nasal polyposis, and an inverted papilloma. Accordingly, existence of current disabilities has been shown. In terms of establishing the second element of service connection, an in-service event or occurrence, a May 2017 VA Asbestos Verification Review conducted of the Veteran's statements and electronic claims file determined that the Veteran's military occupational specialty in service was a radio operator and the probability of asbestos exposure was minimal. Furthermore, medical opinions of record have not established a nexus between the Veteran's established disabilities and his minimal asbestos exposure. The Veteran underwent a VA examination in March 2011 where the examiner opined that the Veteran's hairy cell leukemia is neither caused by nor secondary to military service. The examiner reasoned that the Veteran did not have a history of in-service exposure to the type of radiation that is known to cause various types of cancers and leukemia. Additionally, in July 2017, a VA physician conducted a thorough review of the Veteran's claims file, including lay statements and verbal histories. In his report, the VA examiner opined that it was not at least as likely as not that the claimed hairy cell leukemia was due to in-service asbestos exposure. The examiner reasoned that hairy cell leukemia is a chronic lymphoid b-cell leukemia, where cells infiltrate the patient's reticuloendothelial system and interfere with bone marrow function, resulting in bone marrow failure or pancytopenia, and infiltrates the liver and spleen, resulting in organomegaly. The examiner indicated that although the exact etiology of hairy cell leukemia has not been determined, most evidence would not support that the Veteran's current hairy cell condition is related to the conceded minimal asbestos exposure. Regarding the Veteran's sinus conditions, the VA examiner opined that the Veteran's chronic or recurrent acute sinusitis is likely attributed to untreated acute sinusitis that results in damage to the mucous membranes, and would not support the conclusion that this condition was related to asbestos exposure. Similarly the examiner attributed the Veteran's nasal polyposis to chronic inflammation from non-allergic disease, genetic predisposition, and autonomic nervous system dysfunction affecting regional vasomotor imbalance-and not to asbestos exposure. Finally, the examiner opined that an inverted papilloma is a type of tumor that is typically associated with allergies, chronic sinusitis, airborne pollutants, viral infection, and industrial carcinogen, but not asbestos exposure. The examiner reasoned that medical studies do not clearly support a consistent causal relationship between asbestos exposure and sinusitis, nasal polyps, or nasal papilloma. Furthermore, the Veteran is not entitled to service connection under the theory of presumption of service connection for a chronic disability, or under the theory of continuity of symptomatology, because there is no evidence in the record that the Veteran was diagnosed with hairy cell leukemia within one year of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(a). As previously discussed, the record indicates that the Veteran was diagnosed with hairy cell leukemia in 2003. Additionally, there were no indications in the Veteran's September 1961 pre-induction examination, his November 1962 entrance examination, or his September 1964 separation examination that would suggest a diagnosis of leukemia. To the extent that the Veteran and his wife assert their personal beliefs that there exists a medical relationship between the Veteran's current disabilities and conditions the Veteran experienced in-service, these beliefs provide no basis for allowing the claim. The etiologies of cancer and sinus conditions are complex medical questions not capable of lay observation. The Veteran has not demonstrated that he or his wife have the knowledge or skill to assess a complex medical condition. Accordingly, the Veteran and his wife are not competent to provide an opinion as to the etiology of the Veteran's cancer and sinus condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In conclusion, the Board finds that direct service connection for hairy cell leukemia and a sinus condition, to include as due to exposure to asbestos, is not warranted. The medical evidence is against the relationship between the Veteran's hairy cell leukemia and sinus conditions and service. The Veteran only has a minimal probability of in-service asbestos exposure. Additionally, the VA examiner provided a thorough and well-reasoned negative medical nexus opinion. Given the Board's findings regarding the competency and credibility of the lay evidence above, the Board considers the reliance on medical evidence appropriate. The Board gives this opinion considerable weight. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for hairy cell leukemia and a sinus condition is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hairy cell leukemia and a sinus condition, to include as due to exposure to asbestos, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs