Citation Nr: 1815713 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 15-39 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for kidney cancer, status post right nephrectomy, to include as due to exposure to asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1960 to April 1962, with additional periods of service in the Army Reserve from April 1962 to April 1966, from July 1977 to July 1979, and from April 1987 to April 1988, and in the Army National Guard from November 1984 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a video conference hearing. A transcript of the hearing has been associated with the claims file. 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). FINDING OF FACT A preponderance of the evidence does not establish that the Veteran was exposed to asbestos during his active duty service, or that his kidney cancer manifested during, as a result of, or within one year of service. CONCLUSION OF LAW The criteria for service connection for kidney cancer, status post right nephrectomy, to include as due to exposure to asbestos, are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). II. Service Connection Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an 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 evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include kidney cancer, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (INACDUTRA) during which the person was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In other words, with respect to National Guard service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. Service connection is generally not legally merited when a disability incurred during INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Furthermore, the statutory presumption for service connection does not apply to periods of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). 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, VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section I, Topic 3; see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is pre-service or post service occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed disease. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the Court also indicated that, while the veteran, as a lay person, is not competent to testify as to the cause of his disease, he is competent to testify as to the facts of his asbestos exposure. See McGinty, 4 Vet. App. at 432. Where 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(b); 38 C.F.R. § 3.102; 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). Factual Background and Analysis The Veteran contends that his kidney cancer is due to exposure to asbestos in service. Specifically, he contends that he was exposed to asbestos from 1984 to 1986 while attending drill at the New York State Armory in Staten Island, New York while serving in the Army National Guard. As an initial matter, the Board notes that the evidence of record confirms that the Veteran was diagnosed with renal cell carcinoma, or cancer of the kidney, in May 2005. In July 2005 he underwent a radical nephrectomy, in which his right kidney was removed. Accordingly, the first criterion for establishing service connection - evidence of a current disability - has been met. The issue that remains in dispute is whether the Veteran's kidney cancer is etiologically related to any illness, injury, or event that occurred in service, to include exposure to asbestos. At the outset, the Board notes that the Veteran's National Guard service records are not available. The RO made efforts to obtain these records, but was ultimately informed by the New York Army National Guard that the Veteran's records were not available. The RO documented the claims file with a formal finding of unavailability in June 2013 and properly notified the Veteran. At his December 2017 hearing, the Veteran stated that he was on ACDUTRA during the weeks and weekends he was required to report for National Guard duties. However, only official service department records can establish if and when an individual was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, in the absence of these records, VA is unable to officially verify the Veteran's duty status during his National Guard service. Nonetheless, the Board finds that the Veteran is not prejudiced by the fact that VA is unable to verify the nature of his National Guard service. As noted above, service connection cannot be granted for a disease process that becomes manifest during a period of INACDUTRA. Since kidney cancer is a disease process, any discussion of whether the Veteran's National Guard service was characterized as INACDUTRA is immaterial, as the Veteran would not be eligible for service connection for kidney cancer in this instance. On the other hand, the Veteran may be granted service connection for kidney cancer if it was found to have manifested during a period of ACDUTRA. However, even assuming that the Veteran had periods of ACDUTRA during the dates in question, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran was exposed to asbestos during his National Guard service, or that his kidney cancer manifested during, as a result of, or within one year of separation from service. First, with respect to in-service exposure to asbestos, the Board finds that service connection is not warranted on that basis. The Veteran has asserted that he was exposed to asbestos while fulfilling his National Guardsman duties at the New York State Armory, a facility that was later found to have asbestos. In support of his claim, the Veteran submitted a news article from February 2010 reporting that National Guardsman based at the Armory had been temporarily relocated after asbestos contamination was discovered in offices and work spaces at the facility. The article reported that asbestos was found in a fireproof coating that had been applied to the main building's ceiling sometime in the 1940s or 1950s, which began to flake off during a project to replace the building's windows. Other buildings at the site were not found to be affected. In December 2010, the Veteran submitted a statement from his private nurse practitioner stating that medical evidence has shown asbestos exposure to be a risk factor for developing renal cell carcinoma. In January 2016, the Veteran submitted a statement from a private doctor stating that asbestos is a known human carcinogen, and noting, in part, that "some studies have suggested . . . an elevated risk for cancers of the throat, kidney, esophagus, and gallbladder. However, the evidence is inconclusive." During his December 2017 hearing, the Veteran testified that he heard asbestos had been found in the old windows of the Armory, and that he could have been exposed to asbestos because he had opened and closed windows at the facility. The Veteran stated, "I could've been exposed to a lot of asbestos. The whole building might be infected with asbestos." At the hearing, the Veteran also testified that he did not sleep at the Armory when he reported for drill because he lived nearby. The Board finds that the evidence of record does not establish that the Veteran was exposed to asbestos during his National Guard service at the New York State Armory. The Board acknowledges that asbestos contamination was in fact found at the New York State Armory main building, and the Veteran's available records confirm that he was based there for National Guardsman duties from 1984 to 1986. However, simply being physically located in the same vicinity as asbestos does not establish exposure, as asbestos exposure may not be presumed. Rather, the evidence must show that asbestos exposure actually occurred. Dyment v. West, 13 Vet. App. 141 (1999). With this in mind, the Board notes that asbestos were found in the fireproofing of the main Armory building's ceiling. The Veteran has not asserted that he ever came in contact with the building's ceiling, or was involved in any sort of renovation or demolition project at the Armory which would have put him in contact with the ceiling or dust from the fireproof coating. The Veteran has only asserted that he came in contact with the building's windows, which he mistakenly believed contained the asbestos. In addition, the problem was not widespread, as only one building on the entire 19-acre Armory site was found to have asbestos. The Veteran testified that he lived nearby and therefore, did not sleep at the Armory, and he was only required to report to the Armory a few times a year for weekend drill and occasionally, for week-long meetings. Based on the foregoing, the Board finds it very unlikely that the Veteran had any actual exposure to the asbestos found in the Armory's main building. The Board acknowledges that the Veteran submitted two statements from private physicians which suggest that a relationship may exist between asbestos exposure and kidney cancer, although the link is not conclusive. However, these statements do not directly address the etiology of the Veteran's kidney cancer, nor do they provide a positive nexus opinion between his claimed in-service asbestos exposure and his kidney cancer. With no established in-service exposure to asbestos, and no medical evidence to establish a nexus between the claimed exposure and the Veteran's kidney cancer, the Board finds that service connection for kidney cancer due to asbestos exposure is not warranted. Turning now to whether the Veteran is entitled to service connection on another basis, the Board notes that the preponderance of the evidence weighs against finding the Veteran's kidney cancer is etiologically related to any other in-service illness or injury, or manifested to a compensable degree within one year of separation from service. In this regard, the Board notes that available service treatment records do not show complaint of or treatment for cancer, tumors, or any other medical problem affecting the kidneys. Further, the Veteran's post-service medical records do not show compensable manifestations of kidney cancer within one year of separation of service, nor do they show any continuity of symptomatology from his time in service until the present. The earliest record of a diagnosis of kidney cancer is in 2005, which is 43 years after the Veteran separation from active duty service in the Army. That time period is well beyond the presumptive period for establishing service connection for kidney cancer as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). For the sake of thoroughness, the Board also observes that the Veteran's diagnosis was 17 years after he separated from the Reserve in 1988, which is also well beyond the presumptive period. However, the Board notes that the statutory presumption for service connection for chronic diseases does not apply to periods of ACDUTRA or INACDUTRA, so the Veteran would likely not be eligible for a presumption based on his National Guard or Reserve service anyway. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Moreover, none of the Veteran's post-service medical records contained in the claims file link the Veteran's kidney cancer to his military service, nor have the Veteran's treating physicians suggested that such a link exists. Further, the Veteran himself has not attributed his kidney cancer to any other in-service event other than exposure to asbestos. Therefore, the record is void of any evidence which would support a finding that the Veteran's kidney cancer was incurred in or aggravated by service; therefore, service connection on a direct basis must be denied. The Board acknowledges the Veteran's belief that his kidney cancer was caused by his military service, to include exposure to asbestos. The Veteran is competent to report on matters observed or within his personal knowledge, such as symptoms of disease. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of diseases such as kidney cancer requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether kidney cancer was incurred in service or caused by exposure to asbestos. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any opinion by the Veteran regarding the etiology of his kidney cancer is not competent evidence. In sum, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for kidney cancer, status post right nephrectomy, to include as due to exposure to asbestos. Because the evidence fails to establish that the Veteran was exposed to asbestos during his active duty service, or that his kidney cancer was otherwise incurred in or caused by military service, the Veteran's claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for kidney cancer, status post right nephrectomy, to include as due to exposure to asbestos, is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs