Citation Nr: 0005479 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-06 953A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for cancer of the larynx, postoperative, including as secondary to service- connected pulmonary asbestosis. 2. Entitlement to a compensable evaluation for pulmonary asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mark D. Chestnutt, Counsel INTRODUCTION The veteran served on active duty from October 1957 to March 1961. This appeal stems from December 1997 and August 1998 rating decisions of the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO). In those decisions, respectively, the RO granted service connection for pulmonary asbestosis with a noncompensable evaluation, and denied entitlement to service connection for cancer of the larynx. As discussed infra, the Board of Veterans' Appeals (Board) has determined that additional evidence is necessary with respect to both claims, and thus a REMAND is necessary. FINDINGS OF FACT 1. In August 1985 the veteran was diagnosed with an inflammatory vocal cord lesion, squamous cell carcinoma, and subsequently that month underwent a direct laryngoscopy with vocal cord stripping. 2. The veteran was exposed to asbestos in service, and his claim of service connection for laryngeal cancer is plausible. CONCLUSION OF LAW The claim of entitlement to service connection for cancer of the larynx, postoperative, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) held that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved with respect to the veteran's claim of entitlement to service connection for cancer of the larynx, postoperative, is whether he has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Claims of secondary service connection are likewise required to meet the well- groundedness threshold. Reiber v. Brown, 7 Vet. App. 513, 516 (1995); Jones v. Brown, 7 Vet.App. 134, 137-38 (1994). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. The veteran's service medical records are negative for complaints, findings, diagnosis or treatment for cancer of the larynx. In July 1985 the veteran received treatment at a VA hospital for hoarseness. The veteran reported that he had been hoarse for four to six weeks. The diagnosis was of hoarseness, but that a carcinoma was to be ruled out. Another diagnosis that day was of a vocal cord polyp. An August 1985 VA hospital report shows a diagnosis of inflammatory vocal cord lesion, squamous cell carcinoma. In August 1985 the veteran underwent a direct laryngoscopy with vocal cord stripping. VA records from August 1985 to October 1988 show postoperative treatment for a vocal cord lesion. A September 1997 statement from the National Personnel Records Center (NPRC) indicated that the NPRC had no way of determining whether the veteran was exposed to asbestos while in service. Nonetheless, given the veteran's service in the U.S. Navy, and his occupation as a boiler technician/fireman, the likelihood of exposure to asbestos was highly probable. An October 1997 VA examination report notes by history, "asbestosis with throat cancer." A VA examiner, in February 1998, noted the veteran's history of squamous cell carcinoma of the right vocal cord. The examiner, however, was reportedly unaware of any association between laryngeal cancer and asbestos exposure. The veteran submitted an article apparently obtained on the Internet and printed in February 1998, that purports to be by a pathologist. It is stated in the two-page document that asbestos exposure clearly increases the risk of [contracting] laryngeal cancer. The veteran submitted a December 1998 statement purportedly from the American Cancer Society, that indicates some studies have shown that asbestos may increase the risk of laryngeal cancer. The Court has indicated that, while there is no current specific statutory nor regulatory guidance for service- connection claims for asbestosis and other asbestos-related diseases, VA has issued procedures on asbestos-related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos in VA Adjudication Procedure Manual, M21-1, Part VI, 7.21 (formerly codified at 7.68 (September 21, 1992), in turn, formerly DVB Circular 21-88-8 (May 11, 1988)). McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1, Part VI, 7.21 associates cancer of the larynx with asbestos exposure, and associates increased incidence of pharyngolaryngeal cancer with asbestos exposure. While this is not conclusive, it indicates that it is "possible" that such a link exists between laryngeal cancer and asbestos exposure. In this case, the RO has conceded inservice asbestos exposure: the veteran is service connection for asbestosis, based in part upon the NPRC report that indicates that the likelihood of exposure to asbestos was highly probable. The facts in the instant case are similar to those in Ennis v. Brown, 4 Vet. App. 523 (1993). In that case, which involved a claim of service connection for cause of death, the Court found that the predecessor provisions to the paragraph in M21-1 cited supra, (i.e. DVB Circular 21-88-8) pertaining to asbestos exposure, among other things, related an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer to asbestos. The Board in that case had determined that that veteran's military occupational specialty was one which would have normally placed him at high risk of exposure to asbestos, and he died of a form of bronchial cancer. Id. at 526-27. The Court remanded that case for additional development; the essence of the holding was that the claim of entitlement for the cause of the veteran's death was well grounded. Here, since the veteran's inservice asbestos exposure has been acknowledged, and since VA has determined that there is an increased risk of cancer of the larynx with asbestos exposure, and since the veteran has had this kind of cancer, the claim is considered to be well grounded. Ennis; Caluza. In Dyment v. West, 13 Vet. App. 141 (1999) a previous provision of M21-1 pertaining to asbestos exposure was held not to create a presumption of such exposure, but instead was found merely to contain procedural guidelines that did not create substantive rights. Unlike the situation in Dyment, however, asbestos exposure has already been determined in this case. See Ashford v. Brown, 10 Vet. App. 120 (1997); Morton v. West, 12 Vet. App. 477 (1999) as cited in Dyment, 13 Vet. App. at145-46 (for the proposition that such provisions regarding asbestos exposure are merely guidelines and do not create substantive rights); compare Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). Since there is a possibility of asbestos exposure increasing the risk of laryngeal cancer, the claim is well grounded. 38 U.S.C.A. § 5107 (West 1991); Caluza, supra. The Board cannot determine, however, that this veteran's laryngeal cancer as likely as not resulted from his inservice asbestos exposure, and thus further development is needed. ORDER The claim of entitlement to service connection for cancer of the larynx, postoperative, is well grounded. To this extent only, the appeal is granted. REMAND The October 1997 examination is not adequate for rating purposes with respect to the veteran's service-connected asbestosis. Diagnostic Code 6833 requires, inter alia, a test for Diffusion Capacity of the Lung for Carbon Monoxide by a Single Breath Method (DLCO (SB)). This test may afford an independent basis for a higher rating in this case, but was not performed during that examination. Because the claim of entitlement to service connection for cancer of the larynx, postoperative, is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Specifically, a medical opinion is needed to determine the etiology of the veteran's postoperative laryngeal cancer. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should schedule the veteran for a VA respiratory examination to determine the extent and severity of his asbestosis and the etiology of his cancer of the larynx, postoperative. All necessary tests should be conducted, including pulmonary function testing that utilizes the DLCO test as required by Diagnostic Code 6833, and any other applicable tests cited in that code, and all findings reported in detail. The claims file, including a copy of this REMAND, should be made available to the examiner before the examination, for proper review of the medical history. The examination report should reflect whether such a review of the claims file was made. The examiner is requested to proffer an opinion as to whether it is less likely, more likely or as likely as not that the veteran's postoperative laryngeal cancer was caused either by inservice asbestos exposure or is secondary to the veteran's service- connected pulmonary asbestosis. Reasons and bases for all conclusions should be provided. The veteran is hereby informed that failure to report for the examination may result in a denial of the claim. 2. The RO should then readjudicate the veteran's claims of an increased rating for asbestosis and service connection for cancer of the larynx, postoperative, considering the claim on the merits for both direct and secondary service connection, as warranted. If any claim remains denied, the veteran and his representative should be provided with a supplemental statement of the case and an appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Thomas J. Dannaher Member, Board of Veterans' Appeals