BVA9404425 DOCKET NO. 91-35 918 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for residuals of a right groin injury. 2. Entitlement to service connection for generalized osteoarthritis. 3. Entitlement to service connection for non-tropical sprue. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), secondary to asbestos exposure. 5. Entitlement to service connection for alveolar carcinoma with right upper lobectomy, secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from March 1989 and January 1990 rating decisions of the Boston, Massachusetts, Regional Office (RO). A notice of disagreement was filed in April 1990. A statement of the case was issued in April 1990. The veteran filed a substantive appeal in June 1990. A hearing was held before a hearing officer of the Department of Veterans Affairs (VA) in January 1991, and the hearing officer rendered a decision in April 1991. A supplemental statement of the case was issued in April 1991. In a decision dated January 14, 1992, the Board remanded the case for additional evidentiary development. In its decision on remand of September 1992, the RO confirmed its earlier denial of service connection for all issues contested. A supplemental statement of the case was issued in September 1992. The case was received and docketed at the Board in July 1993. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, No. 92-172 (U.S. Vet. App. May 14, 1993), informed the appellant's representative of the additional evidence developed, and provided an opportunity to respond. The representative responded in November 1993. The veteran had active service as a Merchant Marine from April to July 1943, from September to November 1943, from December 1943 to January 1944, from February to June 1944, from August to December 1944, and from April to August 1945. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred a right groin injury aboard ship during his service with the U.S. Merchant Marines which later resulted in a right inguinal hernia and sterility. He also avers that his generalized arthritis of the knees, ankles, back and shoulders is due to his service aboard ship. He also asserts that while in service, he contracted non-tropical sprue, a chronic gastrointestinal disorder, which continues to cause stomach discomfort and diarrhea. Finally, he contends that both his chronic obstructive pulmonary disease and alveolar cancer of the right upper lung, which necessitated a lobectomy, are the result of exposure to asbestos aboard the various vessels on which he served. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to service connection for residuals of a right groin injury, generalized osteoarthritis, and non-tropical sprue. Furthermore, we conclude that the preponderance of the evidence is against entitlement to service connection for both chronic obstructive pulmonary disease and alveolar carcinoma of the right upper lung with lobectomy, secondary to asbestos exposure. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran sought medical referral for fertility problems in 1958; additional treatment for sterility is not shown by the record. 3. The presence of a right inguinal hernia is not shown until August 1973, 28 years after his separation from service. 4. The presence of osteoarthritis is not noted until April 1968, more than 22 years after service separation. 5. Private hospital records indicate gastrointestinal complaints beginning in April 1968; the presence of non-tropical sprue is not shown until August 1972. 6. A diagnosis of chronic bronchitis was shown in April 1968; the presence of COPD is not indicated until 1974. 7. Alveolar cancer was not diagnosed until 1989. 8. The evidence does not demonstrate that the veteran's lung disorders are associated with asbestos exposure in service. CONCLUSIONS OF LAW 1. Sterility and a right inguinal hernia repair, claimed as residuals of a right groin injury, were not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 303(b) (1993). 2. Generalized osteoarthritis was not incurred in service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (1993). 3. Non-tropical sprue was not incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1993). 4. COPD was not incurred as a result of asbestos exposure in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1993). 5. Alveolar cancer of the right upper lung with lobectomy was not incurred as a result of asbestos exposure in service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. I. Residuals of right groin injury The veteran has appealed a denial of service connection for the residuals of an in-service injury to his right groin. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). In the absence of chronicity at onset, a grant of service connection requires evidence of continuity of symptomatology demonstrating that a current disability was incurred in service. 38 C.F.R. § 3.303(b) (1993). The veteran contends that his right inguinal hernia, as well as sterility, resulted from an injury to his right groin sustained when he was thrown against the railing of a vessel on which he member of the crew. After a thorough review of the record, however, we conclude that service connection for these disorders has not been established. The only service medical record available is an examination report, made in November 1942 prior to the asserted right groin injury at issue. Even if we assume, however, that he incurred a right groin injury in service, the evidence nevertheless fails to establish that his subsequent complaints of infertility and a right inguinal hernia are related to this trauma. Despite his claims of post-service sterility, the only record of medical consultation for this condition is a March 1991 statement made by Dr. Kennedy, a private physician who made fertility and adoption referrals for the veteran in 1958, 13 years after the veteran was separated from service. Dr. Kennedy did not recall any specific, unusual medical findings during his treatment of the veteran. Further complaints of, or treatment for, sterility are not noted until April 1968, when the veteran informed an examining physician that he had a history of sexually transmitted disease in 1934 and was told by a treating physician at that time that he would be sterile. Although the veteran has subsequently attributed his fertility problems to the in-service injury, the absence of post-service treatment records, as well as the absence of continuous symptomatology for so many years after service, weigh against these assertions. The veteran also avers that a right inguinal hernia, with surgical repair, is the residual effect of a right groin injury in service. Again, we note no treatment for a right inguinal hernia in service. Moreover, evidence demonstrating the presence of a right inguinal hernia is not shown until July 1973, when the veteran was admitted to St. Francis Hospital in Hartford, Connecticut. A successful inguinal herniorrhaphy was performed in August 1973 and the veteran was released. Subsequent treatment records note the presence of a surgical scar, but no recurrence of the hernia. In light of the absence of any symptom or complaint of a right inguinal hernia for more than 28 years after service separation, the record does not demonstrate any merit to his claim that the this disorder arose as a result of an injury in service. Without credible and probative evidence establishing that either his right inguinal hernia or sterility arose as a result of his asserted right groin injury, a grant of service connection for these conditions is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1993). II. Generalized Osteoarthritis The veteran contends that his osteoarthritis of the spine, shoulders, knees and ankles is the result of his service aboard ship in the Atlantic during World War II, thus warranting entitlement to service connection. In the case of arthritis, service connection may be granted where the disorder is attributable to service, or became manifest to a compensable degree within one year of service separation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303 (d), 3.307, 3.309 (1993). The record is devoid of evidence noting the presence of arthritis within one year of service separation. Moreover, the first report diagnosing arthritis is not shown until April 1968, when x-ray reports note minimal degenerative changes in the lumbar spine consistent with osteoarthritis. Subsequent reports dated in February 1969, August 1975, August 1976 and October 1977 also found osteoarthritic changes of the back, shoulders and hips. In the most recent VA examination, dated in September 1989, x-ray reports indicated the presence of degenerative disc disease of the cervical spine with osteoarthritis, mild to moderate arthritis in both hands, and minimal degenerative changes of the right knee. Although the record contains ample evidence demonstrating the current presence of osteoarthritic changes in multiple joints, there is no evidence of any degenerative changes either during service, or for more than 27 years following service separation. Furthermore, the applicable treatment and examination reports note no symptomatology or manifestation of osteoarthritis prior to 1968, and the most recent VA examination indicated that "at age 58 [the veteran] first noted 'arthritis.'" Despite his assertions, these records do not indicate any link between current symptoms of osteoarthritis and any incident(s) of service. Absent such supporting evidence, the veteran's contention that this condition is generally attributable to service aboard ship is wholly speculative, and does not merit weight. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Inasmuch as the veteran has not submitted any probative and credible evidence which demonstrates that his current, generalized osteoarthritis was incurred in service, we conclude that his claim of entitlement to service connection for this disorder must be denied. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (1993). III. Non-tropical sprue The veteran also appeals the RO's denial of service connection for non-tropical sprue. As previously stated, service connection may be established where a current disability was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1993). The veteran asserts that he contracted non-tropical sprue at some point during his numerous tours of duty aboard ship. We note, however, that complaints and symptomatology associated with a gastrointestinal disorder are not indicated in the record until April 1968, when an examining physician with the Lahey Clinic in Burlington, Massachusetts, diagnosed gastritis. The presence of non- tropical sprue is not found in the record until August 1972, when the veteran was hospitalized for complaints of diarrhea and abdominal cramping. Although evidence of prior treatment for this condition is not of record, his 1972 hospitalization report indicated a 4-year history of gluten enteropathy and sprue, treated with diet and prescription medications. Therefore, even according the record the most liberal review, the presence of any type of gastrointestinal disturbance attributable to non-tropical sprue is not found prior to 1968, more than 27 years after the veteran left active service. In light of the length of time between service separation and the onset of his symptomatology, a finding that non-tropical sprue was incurred in service would be entirely speculative. In the absence of records demonstrating continuous symptomatology since service, as well as credible and probative medical evidence establishing such a link between service and the onset of his gastrointestinal manifestations, we conclude that a grant of service connection is not warranted. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1993). Therefore, service connection for non-tropical sprue is denied. IV. COPD and Alveolar Cancer with Lobectomy of the Right Upper Lung The veteran claims entitlement to service connection for COPD as a result of his service aboard various vessels during World War II. He contends that during one tour of duty, he was exposed to asbestos fibers which became dislodged from seams which were cracked open when the ship ran aground off the coast of France. He maintains that this exposure subsequently caused chronic bronchitis and eventually resulted in COPD, with symptoms of dyspnea, cough and sputum production. He maintains that his exposure to asbestos also caused his alveolar cancer of the right upper lung, which necessitated a right upper lobectomy in July 1989. Where a review of all pertinent evidence demonstrates that a current disease or injury was incurred in, or aggravated by service, a grant of service connection is warranted. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1993). In the case of lung cancer, service connection will also be granted if the disease first arose in service, or became manifest to a compensable degree within one year of service separation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). The presence of a pulmonary disorder is not noted until April 1968, when the Lahey Clinic diagnosed chronic bronchitis, with bilateral wheezing and cough. The veteran indicated in a statement dated April 26, 1968, that where he worked he inhaled carbon dust all of the time. A February 1969 report noted chronic bronchitis, with possible emphysema. An accompanying x-ray report found an essentially negative chest, with no abnormalities. During an examination in March 1970, the veteran complained of a chronic cough with some wheezing and expectoration. He indicated that he smoked 2 1/2 packs of cigarettes per day. The diagnosis was once again chronic bronchitis, although a chest x-ray made in conjunction with this examination found no active pulmonary disease. In September 1970, the veteran sought treatment to stop smoking, as he was smoking up to 4 packs of cigarettes per day. A diagnosis of COPD is not shown until January 1974, when the veteran was admitted to St. Francis Hospital with pain in the left side of the neck and numbness of the left arm. Scattered rhonchi were found upon examination, with no rales or dullness. Further symptomatology consistent with a pulmonary disorder was not noted. In November 1974, however, the veteran was again admitted to St. Francis Hospital complaining of weakness, nausea and abdominal pain due to sprue. On examination, he appeared slightly short of breath. Pulmonary function studies revealed moderately severe, partially reversible obstructive airway disease. COPD was again noted in hospital admissions dated in June 1975, December 1975, November 1976, September 1977, March 1979, and June 1979. Both the June 1975 and March 1979 admission reports attributed this condition to a history of heavy cigarette smoking. Further treatment for pulmonary symptomatology is not shown until June 1989, when the veteran underwent a chest x-ray which indicated the presence of a lesion measuring 2 centimeters on the right apex of his lung. There was some flattening of the diaphragm and decrease in upper zone markings consistent with COPD. A biopsy performed in July 1989 revealed the lesion to be malignant. The microscopic examination noted prominent anthracosis, evidence of interstitial fibrosis and chronic inflammation of the right upper lobe. The veteran consulted with VA physicians in August 1989 regarding his condition. The examining physician noted that the onset of cancer was highly likely in light of the veteran's heavy smoking history. A vague history of hemoptysis was noted, although a bronchoscopy found no symptoms of bleeding. In August 1989, the veteran underwent a right upper lobectomy. His hospital admission report noted a 100 pack year smoking history, and indicated that the veteran continued to smoke 4 to 5 cigarettes per day. Post-operative x-ray reports indicated pleural effusion/thickening on the right side, as well as expected post-operative changes. The most recent VA examination dated in September 1989 noted a post- operative surgical scar and a chest x-ray indicated considerable pleural thickening of the right hemithorax, with left lower lobe pneumonia. Some of the thickening was attributed to possible resolving post-operative fluid build-up. No masses or lesions were present. Subsequent treatment reports indicate that the veteran continued to suffer from multiple pulmonary symptomatology, including sputum production, occasional hemoptysis and chronic coughing. X-rays from October and November 1989 note improvement, with resolution of left lobe pneumonia and no appreciable changes noted in the right hemithorax. A June 1990 treatment record indicated that his chest was clear and breathing was "ok", although he experienced occasional wheezing. Treatment records dated in November 1990 and January 1991 indicated the presence of a few scattered rhonchi, and occasional expiratory wheezing, but otherwise he was asymptomatic, with no hemoptysis, hoarseness or shortness of breath upon exertion. Although he was again treated for bronchitis in February 1991, this episode was considered acute and transitory, and resolved upon treatment. A review of the evidence clearly demonstrates a pattern of pulmonary symptomatology and disability since 1968, ultimately resulting in the diagnosis of lung cancer in 1989. However, the record is devoid of treatment for, or symptoms of, COPD or any other pulmonary disorder, for the intervening 27 years subsequent to service separation. Moreover, the veteran's alveolar cancer did not become manifest until 1989, more than 45 years after service, thereby negating entitlement to a presumption of service connection pursuant to 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). The veteran contends, however, that his pulmonary disorders are the direct result of asbestos exposure in service. It is well established that lung cancer resulting from asbestos exposure first appears many years after exposure. This latent period may vary anywhere from 10 to 45 or more years between first exposure and development of disease." VA Adjudication Procedure Manual, M21-1, Part VI, 7.68. It is also well established medically that the pulmonary consequences of asbestos exposure include pleural effusions and fibrosis, pleural plaques and the disease asbestosis. Asbestosis is characteristically manifested by restrictive lung disease and interstitial pulmonary fibrosis, which is evidenced by dyspnea, and end-inspiratory rales over the lower lobes. The clinical diagnosis of pulmonary disorder due to asbestos exposure requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.68. The veteran's service records indicate that he served on at least 6 different vessels, in various capacities, with the U.S. Merchant Marines. Despite his contentions, however, the record contains no factual evidence which could verify his assertions of asbestos exposure during any of these tours of duty. In light of the absence of factual evidence supporting the veteran's contentions, a review of the medical evidence is required to determine whether his pulmonary disabilities are attributable to asbestos exposure. The veteran's medical history is replete with references to his chronic lung disorder, including symptoms of cough, dyspnea, sputum production, rhonchi and wheezing. None of these reports, however, attributes this symptomatology to asbestos exposure. In fact, both private and VA physicians have noted the veteran's chronic and heavy cigarette smoking for more than 60 years as an etiologic factor both in his development of COPD and lung cancer. The veteran has a more than 100 pack-year history of cigarette smoking which, according to a VA treating physician, made the onset of lung cancer "highly likely." The record does contain chest x-rays and a cell biopsy report which note symptoms of anthracosis, pleural thickening, interstitial fibrosis and chronic inflammation, possible radiologic symptoms associated with asbestos exposure. These reports, however, do not indicate the presence of asbestos fibers in the lungs. In light of this evidence, we referred the claims folder to a VA medical adviser (hereinafter "Dr. R.") for his opinion on the possible relationship between the veteran's lung disorders and asbestos exposure. In his report, dated in November 1993, Dr. R. highlighted the absence of factual records to support the veteran's contentions of asbestos exposure in service, as well as the x-ray and biopsy findings of anthracosis, interstitial fibrosis and interstitial inflammation. He also noted that "[a]sbestos microscopically is undistinguishable from other causes of pulmonary fibrosis except for the presence of asbestos fibers." Cecil Textbook of Medicine, 2339 (19th ed. 1992). Dr. R. also stated that, according to pertinent medical literature, when asbestos is not considered, the risk of cancer among cigarette smokers is much higher than the risk of the nonsmoker and that the risk is proportional to the number of cigarettes smoked per day. Ibid. at 35. Based upon the factors of the veteran's heavy smoking history and the absence of asbestos fibers upon examination, Dr. R. concluded that "the veteran's lung cancer could be due to his excessive cigarette smoking even without asbestos exposure. In view of no clear-cut data indicating evidence of asbestos exposure in service, I cannot incriminate the lung disease and lung cancer as due to asbestosis." In light of Dr. R.'s opinion, as well as the other medical evidence, we conclude that service connection for either the veteran's COPD or alveolar cancer with lobectomy is not warranted. The absence of any clear medical evidence demonstrating exposure to asbestos, as well as the numerous reports attributing both his COPD and lung cancer to a long history of heavy cigarette smoking, unquestionably outweighs the veteran's unsupported assertions. Therefore, we conclude that entitlement to service connection for both COPD and alveolar cancer with right upper lobectomy, as secondary to exposure to asbestos, is denied. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1993). ORDER Entitlement to service connection for the residuals of a right groin injury is denied. Entitlement to service connection for generalized osteoarthritis is denied. Entitlement to service connection for non-tropical sprue is denied. Entitlement to service connection for COPD, secondary to asbestos exposure in service, is denied. Entitlement to service connection for alveolar cancer of the right upper lung with lobectomy, secondary to asbestos exposure in service, is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 W. H. YEAGER, JR., M.D. C. P. RUSSELL JACK W. BLASINGAME NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original (Continued on next page) Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.