On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, CA
1. Entitlement to service connection for diabetes mellitus, to include as due to in-service exposure to dioxins and other environmental toxins.
2. Entitlement to service connection for a lung disability, to include as due to in-service exposure to asbestos, mold, dioxins, and other environmental toxins.
3. Entitlement to service connection for hearing loss.
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran, his daughter, and C.B., M.D.
ATTORNEY FOR THE BOARD
K. Neilson, Counsel
Toe Veteran served on active du.ty from August 1960 to May 1964. This inatter comes before the Board of Veterans' Appeals (l3oard) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
On January 27, 20l5, the Veteran appeared and testified at a Board hearing During the hearing, a number of issues not presently before the Board were raised. However, in February 2015, the Veteran filed claims of service connection for multiple disabilities claimed as second to his diabetes mellitus, as well as for a higher rate of speiciat monthly compensation with the RO. Thus, there is no ned for the Board to refer these issues to the RO.
The Veteran's original appeal also encompassed the issue of entitlement to service connection laryngeal cancer. In an October 2013 rating decision, the RO awarded service cionnection for recurrent carcinoma of the larynx, and assigned a 100 percent disability rating, effective from September 27, 2007. The Veteran was notified of the decision and of his appellate rights. The Veteran did not disagree with any aspect of the RO's October 2013 decision awarding service connection for laryngeal cancer to include the rating of effective date assigned. That matter has accordingly been resolved. See Grantham v, Brown, l 14 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim is granted during the pendency of the appeal, a. second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of the award).
The issues adjudicated below and certified on appeal were framed as, among other things entitlement to service connection for asbestosis and entitlement to service connection for mold exposure. A review of the Veteran's. original claim for VA disability compensation shows that in the section of the claim pertaining to what disabilities were being claimed, the Veteran twice listed "cancer." Later in the claim, the Veteran indicated that he bad been exposed to asbestos in service. When asked what disability he believed resulted from his asbestos exposure, the Veteran listed "cancer, asbestosis[,] mold cxpoimre." The Veteran then stated the following: "Due to dorms having been built of asbestos [and] mold growing in walls [and] floor [and] then being sprayed with different chemicals I have cancer and lung conditions."
A claim for a disability includes any disability that may reasonably be encompassed. by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shtnseki, 23 Vet. App. 1, 56 (2009). Here, the disability for which the Veteran is seeking service is any cancer or lung disorder. that can be attributed to environmental exposures in service, to include asbestos and mold. Notably, "mold exposure" is not in and of itself a disability. Rather, mold exposure would be considered the in-service event or injury to which a current disability could potentially be attributed. See liickson v. We.st, 12 Vet. App. 247, 253 (1999) (setting forth the required elements to establish service connection). Further, as will be discussed below, the evidence fails to reveal the Veteran has been diagnosed as having asbestosis. The evidence does, however, reveal a diagnosis of lung cancer.
Accordingly, the Board has framed the two issues on appeal as entitlement to service connection for a lung disability, to include as due to mold, asbestos, and/or other environmental exposures, as set forth on the title page of this decision. In this regard, VA medical records show that the Veteran had been diagnosed as having pulmonary tuberculosis in 2005. He was again diagnosed as having such in April 2009. Although tuberculosis could be considered under the umbrella of lllng disorders. the Veteran separately claimed service connection for pulmo11ary tuberculosis, which claim was denied by the RO in August 2010. Although the Veteran filed a notice of disagreement as to tbat decision and a statement of the case was issued in June 2013, the Veteran failed to perfect an appeal of that issue and the August 201 RO decision is final.
The issue of entitlement to service connection for hearing loss is addressed in the Remand portion of this decision.
This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 18 C.F.R. § 20.900(c).
FINDINGS OF FACT
1. A diagnosis of asbestosis or any other lung disability related to asbestos or mold exposure has not been shown.
2. Diabetes mellitus cannot be reasonably disassociated with the Veteran's military service.
3. Lung cancer cannot be reasonably disassociated with the Veteran's military service.
CONCLUSION OF LAW
1. Diabetes mellitus was incurred during active military service. 38 U.S.C.A.
§§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014).
2. Lung cancer was incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting from dtsease or injury
incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F .R. §§ 3.303, 3.304. 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).
Generally, establishing service connection requires medical or in certain,
circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disase or inju.ry and the present disability. See Davidson v. Shinseki, 581 Fed
1313, 1316 (Fed. Cir. 2009). In addition, cenain chronic diseases, including
diabetes mcllitus and cancer, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ J.101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3309 (2014).
The law further provides that there are certain diseases, such as type II diabetes
mellitus and respiratory cancers, that are associated with exposure to herbicide
agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active militacy gervice if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable prescription provisions of 3 8 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. § 3.309(e). In this.context, the term "herbicide agent" is defined as a chemical in an herbicide used in .support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5 .. T and its contaminant TCDD; cacodylic acid and piclorant. 38 C.F.R. § 3.307(a)(6)(i).).
The Veteran's post-service medical records show diagnoses of diabetes mcllitus and I wig cancer. His service treatment reCO'l'ds, however, show no treatment for
diabetes mellitus or any 1-elated symptoms, or any indic;:ation of lung cancer.
Results of a urinalysis conducted as part of the Veteran's April 1964 separation
examinntion was negative for sugar and indi.cated a specific gravity of LO l3. The Veteran alleges that he was diagnosed as having diabetes mellitus shortly after
service and submitted a letter from S. K. who stated that the Veteran had been
denied ernployment within a year of separation from service due to elevated levels
of blood sugar demonstrating diabetes at that time.
Here, the record. establishes that while in service, the Veteran was stationed at Chanute Air Force Base in Illinois. The Veteran has submitted reports from the Environmental Protection Agency (EPA) showing that Chanute Air Force Base is a Superfund site contaminated by various chemicals, including dioxins, In January 2010, the Veteran underwent an Agent Orange registry examination, the results of which revealed diagnoses of, among other things, diabetes mellitus and squamous cell carcinoma of the lung. The examiner reviewed the EPA fact sheets regarding the presence of chemicals and toxins, noting that the fact sheet established detectible concentrations of dioxins and furans" at Chanute Air Force Base and also indicated that base workers may have been exposed to contaminants in surface soils or surface debris. The examiner then stated that, upon review of the Veteran's service history and medical records, it was the examiner's opinion that the Veteran's lung cancer and diabetes mellitus were as likely as not" related to service, noting that lung cancer and diabetes mellitus were conditions
presumptively related to Agent Orange exposure and pointing out that the EPA fact sheets suggested that the Veteran may have been exposed to dioxins to include Agent Orange in service.
Service connection has been established for non-Hodgkin's lymphoma and recurrent carcinoma of the larynx. Each grant was based on a VA examiner's opinions that the Veteran's non-Hodgkin's lymphoma and/or recurrent carcinoma of the larynx. were, "as likely as not," related to his exposure to dioxins and other environmental hazards while stationed at Chanute Air Force Base.
The record also contains serveral other positive medical opinions, attributing the Veteran's lung cancer and diabetes mellitus to his exposure to toxic substances while stationed at Chanute Air Force Base. In January 2015, Dr. C. B., who also presented testimony at the Veteran's hearing before the Board, submitted a statement wherein he opined that the Veteran's diabetes mellitus is attributable to the Veterans exposures while stationed at Chanute Air Force base, noting that medical literature supports an association between exposure to Agent Orange and the subsequent development of diabetes mellitus. Dr. B. also noted that the Veteran did not have a family history of diabetes and that no other medical professional had opined that the Veteran's diabetes was related to something other than his exposure to dioxins and other environmental toxins while stationed at Chute Air Force base.
In an August 2009 opinion, G. C ., MD, Chief of Otolaryngology at the Loma Linda, California, VA Medical Center found that the Veteran's lymphoma, and larynx and lung cancers were relaled to his exposure to toxic substances while in service, noting that tbe Veteran had been exposed to dioxins in service, which had a known ethiological relationship with the disease subsequently developed by the Veteran.
This opinion is also shared by Drs. G. P., MD., and Dr. C. B.
Accordingly, the Board finds that when reasonable doubt is resolved in favor of the Veteran, service, connection for diabetes mellitus and for lung cancer is warranted.
As discussed in the introduction the Veteran. also alleged in-service exposure to mold and asbestos. The private and VA treatment records fail to show diagnoses of asbestosis or any other pulmonary disorder or cancer related to possible asbestos exposure. Similarly, the records fail to demonstrate that the Veteran has a disability that is specifically attributable to his claimed in-service mold exposure, to include blastomycosis. Accordingly, the Board finds no basis upon which to establish
service connection for a lung disability other than lung cancer as part of the claims currently before 1he Board.
Service connection for diabetes mellitus is granted.