Citation Nr: 0001218 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 94-47 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for colon cancer due to exposure to asbestos. 2. Entitlement to service connection for a cardiac disability to include hypertension. 3. Entitlement to an earlier effective date prior to April 14, 1997 for the assignment of a 100 percent evaluation for defective hearing. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and appellant's son ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from March 1944 to December 1947. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 1997, the Board granted service connection for defective hearing and denied entitlement to service connection for a pulmonary disability due to exposure to asbestos. The Board remanded the two remaining issues, which are listed on the first page of this decision to the RO for additional development. While the case was in remand status, in September 1997, the RO granted a 50 percent evaluation for defective hearing effective from July 1, 1993. In September 1998, the RO increased the veteran's evaluation for defective hearing to 100 percent, effective April 14, 1997. The veteran disagreed with the effective date in September 1998, and a Statement of the Case was issued in March 1999. A substantive appeal was received in April 1999. The case has been returned to the Board and is ready for further review. The Board notes that in his July 1993 claim, the veteran stated that he was claiming service connection for hypertension brought on by his exposure to all the side effects caused by his military service. The veteran is service-connected for post-traumatic stress disorder. The Board construes the veteran's statement as an informal claim of entitlement to secondary service connection for hypertension and the matter is referred to the RO for consideration. FINDINGS OF FACT 1. On the issue of entitlement to an earlier effective date, all relevant evidence necessary for an equitable resolution of the veteran's appeal has been obtained by the RO. 2. The claims of entitlement to service connection for colon cancer due to exposure to asbestos and entitlement to service connection for a cardiac disability to include hypertension are not plausible. 3. A claim for an increased rating for defective hearing was received in April 1997, and it is not factually ascertainable that the veteran's defective hearing had increased in disability to the degree that a 100 percent rating is warranted prior to that time. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for colon cancer due to exposure to asbestos and entitlement to service connection for a cardiac disability to include hypertension are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for an effective date prior to April 14, 1997 for a 100 percent disability rating for defective hearing have not been met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for colon cancer due to asbestos exposure, and for a cardiac condition to include hypertension. He also seeks an earlier effective date for the assignment of a 100 percent evaluation for defective hearing. The Evidence The veteran's service medical records show no complaint, diagnosis or treatment for colon problems. The veteran's February 1946 re-enlistment examination report shows his blood pressure to be130/90, and when taken again in 3 minutes, it was noted to be 130/90. His hearing was noted to be 15/15, bilaterally in February 1946. At separation in December 1947, examination of the abdomen and pelvis was normal, as was examination of the cardiovascular system. Blood pressure was recorded as 119/69 and 125/71 after three minutes. His hearing was 15/15, bilaterally by whispered voice. Private medical records show that in December 1988, the veteran underwent an audiometric examination at the Grand Island Ear Nose and Throat Clinic. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 65 80 90 LEFT 60 70 90 95 100 Private medical records show a finding of hypertension in January 1993. It was indicated in February 1993 that the veteran was taking medication for hypertension, and his reading was 170/110. In a June 1993 letter, William M. Sandy, M. D. reported that he had treated the veteran for several years, and that the veteran was nearly deaf and required hearing aides. It was also reported that the veteran had severe hypertension, carcinoma of the colon and hypertensive heart disease. There is also a letter dated in August 1993 from Dr. Sandy in which he states that the veteran was stone deaf from chronic bilateral sensorineural hearing loss due to high intensity noise exposure. On the VA audiological evaluation in August 1993, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 60 60 70 90 LEFT -- 60 60 70 80 Speech audiometry revealed speech recognition ability of 45 percent in the right ear and of 48 in the left ear. Moderate sloping to profound sensorineural hearing loss, bilaterally was diagnosed. In September 1993, a VA ear examination report shows that there was slight evidence of left ear otomycosis, and otalgia was thought to be secondary to left TMJ dysfunction. On VA hypertension examination in August 1993, blood pressure readings were as follows: sitting- 146/90; lying- 130/80; standing- 136/88. It was noted that the veteran had an enlarged heart, and the diagnoses were, hypertension, and arteriosclerotic cardiovascular disease. On VA intestine examination that same month, history of cancer of the colon with resection was found, as was lysis of adhesion bands precipitating partial bowel obstruction, treated surgically, resolved. On VA examination in October 1993, on gastrointestinal examination, the examiner found, history of colon cancer, successfully resected with subsequent symptoms. On hypertension examination that same month, the examiner found, essential hypertension. In an addendum, the examiner opined that the veteran had passive exposure to asbestos in the interior of ships and was not in fact exposed to active removal or application of the substance. It was noted that the veteran had been diagnosed as having essential hypertension for which there is no known etiology. The examiner stated that he could not find substantial evidence that would sustain the veteran's claim that his colon cancer was directly associated with asbestos exposure and that his hypertension was the result of cancer. In February 1994, the RO received a letter from Dr. Sandy in which he stated, among other things, that he had not practiced medicine prior to 1980. He indicated that he therefore was unable to forward any records concerning treatment of the veteran for colon cancer for the period beginning in 1974. In April 1995, the veteran appeared at a personal hearing, and gave testimony in support of his claim. He stated that after he was discharged from the military, he was treated for hypertension. He testified that this was within 90 days of separation. He stated that he was treated by a private physician whose records had been destroyed. The veteran reported that he slept on a top bunk while in the Navy aboard ship next to a pipe covered with asbestos. He stated that he had colon surgery for cancer. The veteran's son, who stated he was 38 years of age, testified that as far back as he could remember, his father had a hearing problem. A complete transcript is of record. On April 14, 1997, the veteran submitted a VA Form 21-8940, Application for Increased Compensation based on Unemployability. On VA general medical examination in May 1997, the examiner found that the veteran had hypertension, which was controlled; hearing loss in both ears; and was status post surgical treatment for cancer of the colon in 1973. In September 1997, the RO granted service connection for defective hearing, and a 50 percent evaluation was assigned, effective from July 1993. A private audiogram dated in September 1997 showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 70 80 80 90 110 LEFT 85 85 105 110 110 A VA X-ray report dated in October 1997 showed that the heart was within normal limits. The veteran was examined by VA in January 1998. On general medical examination, an unrelated disorder was discussed, and the examiner referred the reader back to the May 1997 VA examination report for the rest of the examination. An abnormal EKG was reported. Hypertension, hearing loss, bilateral, and arteriosclerotic coronary heart disease, manifested by EKG changes were the pertinent diagnoses. On hypertension examination, the finding was hypertension, most probably essential, well controlled with left ventricular hypertrophy per EKG. The veteran underwent a VA audiometric examination in May 1998. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 100 100 105 105 105 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 2 percent in the right ear and of 0 percent in the left ear. In September 1998, the RO increased the veteran's evaluation for his defective hearing to 100 percent, effective from April 14, 1997. Service Connection The threshold question to be answered is whether the veteran has presented evidence of well-grounded claims, that is, claims which are plausible and meritorious on their own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board finds that the veteran's claims for service connection are not well grounded, and there is no further duty to assist the veteran in the development of his claims. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). If cancer is manifested to a compensable degree within the first post-service year, it may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required where the condition noted in service is not shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). In Savage v. Gober, 10 Vet. App. 488 (1997), The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court") established the following rules with regard to claims addressing the issue of chronicity: The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well- grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Therefore, notwithstanding the veteran's showing of an inservice injury, and statements of post- service continuity of symptomatology, medical expertise is required to relate his disabilities etiologically to his post-service symptoms. Savage, supra; Caluza v. Brown, 7 Vet. App. 498 (1995); at 506. Where a determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As stated above, in Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990), the Court defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). The test is an objective one which explores the likelihood of prevailing on the claim under the applicable standards. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the claim need not be conclusive, it must be accompanied by evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. 38 U.S.C.A. § 5107 (West 1991). In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam), the Court stated that in order for a claim to be well-grounded there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). I. Service connection Colon Cancer due to Asbestos As to claims seeking service connection for asbestosis or other asbestos-related disease, the Board notes that there has been no specific statutory guidance with regard to these claims, nor has the Secretary promulgated any regulations. However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provided some guidelines for considering compensation claims based on exposure to asbestos. The provisions of that circular are now incorporated in VA Adjudication Procedure Manual, M21-1, Part VI, par. 7.21 (hereinafter M21-1), which provides that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. It is also noted in the M21-1, that many people with asbestos-related diseases have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of disease. In addition, exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part III, par. 5.13 and Part VI, par. 7.21. The Court has indicated that, while the veteran, as a lay person, was not competent to testify as to the cause of his disease, he was, however, competent to testify as to the facts of his asbestos exposure. See also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Board notes that the veteran has contended that he experienced asbestos exposure during his active service in the Navy. Solely for the purpose of determining the well- groundedness of his claim, the veteran's contentions are deemed credible. See King v. Brown, 5 Vet. App. 19 (1993). However, even conceding that the veteran was exposed to asbestos for purposes of determining the well-groundedness of his claim, the Board notes that the medical record is entirely negative for any evidence of a diagnosis of any disability which has been noted to be due to exposure to asbestos. While the veteran has indicated that he has been treated for colon cancer, records concerning such treatment are not available and the current evidence shows colon cancer by history only. In addition, there is no evidence that this claimed disability is related to his claimed asbestos exposure. Further, a VA examiner has reported that there is no evidence that would sustain the veteran's claim that his colon cancer was directly associated with asbestos exposure. Records of treatment for colon cancer in the 1970's are unavailable. Accordingly, there is no evidence to show that the veteran's colon cancer was manifested in service or within the first post service year. The veteran has simply made a contention that he should be granted service connection for colon cancer which he has stated was caused by asbestos exposure. As a lay person, he is not qualified to offer evidence requiring medical expertise. While the veteran is competent to provide evidence of symptoms, he is not competent to provide evidence that requires medical knowledge. See Espiritu v Derwinski, 2Vet. App. 492 (1992). Absent medical documentation that the veteran had colon cancer which was incurred in service, was manifested within the first post service year or was caused by exposure to asbestos, the veteran's claim is not well- grounded. II. Service Connection for a Cardiac Disability to Include Hypertension The Board notes that the veteran had an elevated blood pressure reading during service when his blood pressure was documented as 130/90 in February 1946. This finding is supported by regulation that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See, 38 C.F.R. Part 4, Code 7101, Note (1) (1999). However, thereafter no elevated readings were recorded in the record until the 1990's several decades after service. These are too remote in time to reasonably be related to the single elevated reading during service. In addition the veteran has not supplied medical confirmation ( a nexus) that his currently diagnosed hypertension is related to his military service. While the veteran's representative has argued that the veteran's hypertension is chronic, as noted above, notwithstanding the veteran's showing of an inservice elevated reading, and his statements of post-service continuity of symptomatology, medical expertise is required to relate his disability etiologically to his post-service symptoms. Savage, supra; Caluza v. Brown, 7 Vet. App. 498 (1995); at 506. The Board has considered the veteran's statements regarding this disability. While the veteran is competent to provide evidence of symptoms, he is not competent to provide evidence that requires medical knowledge. See Espiritu v Derwinski, 2Vet. App. 492 (1992). In regards to both of the service connection issues, the veteran is free at any time in the future to submit evidence in support of his claims. Medical records of complaints and treatment in service or shortly thereafter would be helpful in establishing well-grounded claims, as well as medical opinion linking any current findings with the veteran's military service. Robinette v. Brown, 8 Vet. App. 69 (1995). Earlier Effective Date In order to evaluate the claim for an earlier effective date, the Board has considered the full history of the veteran's service-connected defective hearing, as noted above. In evaluating the veteran's claim for an earlier effective date for a 100 percent rating, the Board notes that the effective date of an increased rating shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. The effective date of an increase in disability compensation may also be assigned for up to one year prior to the date of the receipt of the claim if it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. See 38 C.F.R. § 3.400(o) (1999). In order to determine whether an earlier effective date is warranted, the Board must determine whether the schedular criteria for a 100 percent evaluation were met earlier than that date currently in effect, that is, April 14, 1997. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing range from noncompensable to 100 percent are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110 (1999). The Court has noted that the assignment of disability ratings for hearing impairment are derived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, the appellant has Level XI hearing acuity in the right ear, and Level XI hearing acuity in the left ear. These numeric designations produce a 100 percent disability evaluation. 38 C.F.R. 4.87, Diagnostic Code 6110. Because the veteran's claim for an increased rating was received in April 1997, the evidence from within one year prior to that claim and up to that is most relevant to the claim for an earlier effective date for a 100 percent rating. In December 1988, the veteran's audiogram does not reflect 100 percent disability. (Code 6106). There is a statement from a private physician noting that the veteran was deaf in 1993. VA audiometric examination in August 1993 does not show that the veteran's defective hearing disability warrants a 100 percent rating. (Code 6105). The VA examination report of May 1998 reflects readings that support a finding of 100 percent disability for defective hearing. After careful evaluation of the above-referenced evidence, the Board finds that an effective date of April 14, 1997, is appropriate for the 100 percent rating, inasmuch as that date is the date of the veteran's claim for an increase and there is no showing that the disability had increased one year prior to that date. Accordingly, the Board concludes that the criteria for an effective date of April 14, 1997 for a 100 percent disability rating for defective hearing are met, and that there is no basis for assigning an effective date prior to that time. ORDER Service connection for colon cancer due to exposure to asbestos is denied. Service connection for a cardiac disability to include hypertension is denied. An effective date prior to April 14, 1997 for a 100 percent rating for defective hearing is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals