Citation Nr: 1016979 Decision Date: 05/06/10 Archive Date: 05/19/10 DOCKET NO. 06-10 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. The timeliness of the Veteran's notice of disagreement (NOD) as to the RO's March 2003 rating decision. 2. Entitlement to service connection for colon cancer, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from 1962 to July 1984, including service in Vietnam. This case initially came before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO denied entitlement to service connection for colon cancer. The issue was subsequently recharacterized to reflect the Veteran's claim that his colon cancer is due to Agent Orange exposure. Separately, as discussed below, the RO determined in December 2004 that the Veteran's NOD from its March 2003 rating decision was untimely. In November 2008 and May 2009, the Board remanded the claim for service connection for colon cancer. The issue of entitlement to service connection for colon cancer, to include as due to Agent Orange exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In March 2003, the RO issued a decision denying 18 claims for service connection and increased ratings, and granting an increased rating for the Veteran's service-connected tinnitus. 2. An April 2003 letter to the address at which the Veteran resided, and continues to reside, informed the Veteran of the March 2003 decision. This letter was not returned as undeliverable. 3. The next communication to the RO on the Veteran's behalf was a November 2004 letter written by the Veteran's wife and signed by the Veteran and his wife indicating that the Veteran had not been notified of the March 2003 decision. 4. The Veteran's February 2005 communication in response to the RO's February 2005 statement of the case (SOC) on the issue of the timeliness of the Veteran's NOD as to the March 2003 rating decision contained specific arguments relating to alleged errors made by the RO in reaching the determination that the NOD was untimely. CONCLUSIONS OF LAW 1. The Veteran's February 2005 communication constituted a valid substantive appeal in response to the RO's February 2005 SOC on the issue of the timeliness of the Veteran's NOD as to the March 2003 rating decision. 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. § 20.101(d); 20.202 (2009). 2. The April 2003 letter notifying the Veteran of the March 2003 rating decision is presumed to have been mailed to and received by the Veteran. 38 U.S.C.A. § 5104(a); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). 3. A timely notice of disagreement to the RO's March 2003 decision was not filed, and the decision is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302(a), 20.1103 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory or regulatory interpretation and the applicable statute or regulation is dispositive of the claim. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the issue of the timeliness of the NOD from the RO's March 2003 rating decision is wholly dependent on interpretation of the applicable laws and regulations pertaining to the time requirements for filing a NOD and the presumption of administrative regularity. The VCAA is therefore inapplicable and need not be considered with regard to the Board's resolution of this issue. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). As discussed below, the RO notified the Veteran that he could challenge its determination that his NOD from the March 2003 rating decision was untimely and the Veteran did so, resulting in this issue being before the Board as discussed below. In a March 2003 rating decision, the RO addressed 19 increased rating and service connection claims, denying 18 of them and granting an increased rating of 10 percent for the Veteran's tinnitus. The RO notified the Veteran of these determinations in an April 2003 letter. The Veteran did not file a timely NOD. See 38 C.F.R. § 20.302(a) (requiring NOD to be filed within one year of notification of adverse determination). However, a November 2004 letter by the Veteran's wife, signed by both her and the Veteran, indicated that she and the Veteran were never apprised of the March 2003 rating decision. As the Veteran signed this letter, the Board finds, as did the RO, that it complied with all of the requirements for a valid NOD as to the March 2003 rating decision except for the requirement that it be filed within one year of notification of the decision. 38 C.F.R. §§ 20.201, 38 C.F.R. § 20.300; see Gallegos v. Gober, 283 F.3d 1309, 1313-1314 (Fed. Cir. 2002). In response to the November 2004 letter, the RO sent a December 2004 letter informing the Veteran that the November 2004 letter was an untimely NOD, and indicating that he could appeal the decision that his NOD was not timely filed. The Veteran filed a NOD as to the November 2004 determination of untimeliness and the RO issued a February 2005 SOC on the issue of the timeliness of the Veteran's NOD from the RO's March 2003 decision. In response, the Veteran sent a February 2005 letter indicating that the November 2004 letter should be considered a timely NOD because he was not formally notified of the March 2003 decision. In the February 2005 letter, the Veteran identified eight issues that he believed were on appeal, and indicated that this list was not exclusive. He also stated that the fact that he had to ask his representative to get the March 2003 rating decision and April 2003 notification letter corroborated that his NOD was timely. In response to this letter, the RO sent the Veteran a letter stating that he had until December 2005 to file his substantive appeal on a Form 9. The Veteran did not respond to this letter and the RO took no further action on the appeal. The Board finds that the Veteran's February 2005 constituted a valid substantive appeal on the issue of the timeliness of his appeal of the March 2003 rating decision. There is no requirement that a substantive appeal be submitted on a VA Form 9. See 38 U.S.C.A. § 7105(d)(3). In fact, 38 C.F.R. § 20.202 states that a substantive appeal consists of a properly completed Form 9 or correspondence containing the necessary information, indicating that these are alternative criteria for meeting the requirements for filing a valid substantive appeal. The "necessary information" consists of specific arguments relating to errors of facts or law made by the AOJ in reaching the determination being appealed, and the arguments made are to be construed liberally. Id. See also Ortiz v. Shinseki, 23 Vet. App. 353, 357 (2010) (substantive appeal statute places burden on claimant to expand upon initial disagreement with RO decision by setting forth, however inartfully, a particular theory of error for the Board to decide). In this case, the Veteran clearly met this requirement by explaining why he felt that his NOD should be deemed timely, i.e., because he was not properly notified of the March 2003 rating decision, as evidenced by his request to his representative for a copy of the decision. Thus, the issue of the timeliness of the NOD from the RO's March 2003 decision is before the Board. See 38 C.F.R. § 20.102(d) (Board may address questions pertaining to its jurisdictional authority to review a particular case, including adequacy and timeliness of NOD and substantive appeal). While this regulation requires notice to the parties when the Board raises a question as to a potential jurisdictional defect on its own initiative, as the Board is finding in favor of the Veteran that he filed a valid substantive appeal on the issue of the timeliness of his NOD, such notice is not required. As to the underlying issue of the timeliness of the NOD, the Board is not raising a question as to this potential jurisdictional defect on its own initiative; rather, the Veteran filed a timely NOD from the RO's finding of an untimely NOD with the March 2003 rating decision, the RO issued a February 2005 SOC, and, as the Board found above, the Veteran filed a timely and valid substantive appeal in response to the SOC. Consequently, this issue is before the Board. See 38 C.F.R. § 20.200 (an appeal consists of a timely filed NOD and, after an SOC has been furnished, a timely filed substantive appeal). The claims file contains an April 2004 letter to the Veteran's then and still current address informing him of the March 2003 rating decision. The letter explained the decision and indicated that if the Veteran did not agree it, he had one year from the date of the letter to appeal the decision. The letter indicated that the enclosed VA Form 4107, "Your Rights to Appeal our Decision" explained the Veteran's right to appeal. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a rebuttable "presumption of administrative regularity" under which it is presumed that government officials have properly discharged their official duties, including mailing notices. See Clark v. Principi, 15 Vet. App. 61, 63 (2001). This presumption applies to VA's mailing of an RO decision to a Veteran. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). See also 38 U.S.C.A. § 5104(a) (requiring notice to claimants of VA benefits decisions). In order to rebut this presumption, there must be "clear evidence" to the contrary that either VA's regular mailing practices were not regular or they were not followed; more precisely, the Veteran must establish both that the mailing was returned as undeliverable and that there were other possible and plausible addresses that could have been used to contact him. See Davis v. Principi, 17 Vet. App. 29 (2003). Here, the claims file contains a copy of the April 2003 letter and there is no indication that it was returned as undeliverable. The address on the letter is the same one that has been used and continues to be used to send documents to the Veteran, and the Veteran has not argued otherwise. The only argument made by the Veteran and his wife is that they only received a copy of the rating decision after asking the Veteran's representative for it, and that the fact that the Veteran had to ask his representative for the letter and rating decision corroborates their claim that they did not receive the April 2003 notification letter and March 2003 rating decision. However, the case law cited above makes clear that the assertion of non-receipt is an insufficient basis on which to find that a Veteran did not receive a communication with his correct address on it. Rather, there must be evidence that that the mailing was returned as undeliverable and that there were other possible and plausible addresses that could have been used. As there is no indication in the record that the April 2003 letter was returned as undeliverable, the regularity of the mail is presumed with regard to this letter. As the Veteran did not appeal the March 2003 rating decision within the year following the April 2003 notification letter, the March 2003 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The November 2004 communication was therefore not a timely filed NOD. ORDER A notice of disagreement pertaining to the RO's March 2003 decision was not timely filed. REMAND Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). As to the claim for service connection for colon cancer to include as due to Agent Orange exposure, if a Veteran was exposed to Agent Orange during active military, naval, or air service, certain listed disease are presumptively service- connected. 38 U.S.C.A. § 1116(a)(1)(A); 38 C.F.R. § 3.309(e); see also 69 Fed. Reg. 31,882 (June 8, 2004); 68 Fed. Reg. 59,540-42 (Oct. 16, 2003). Veterans who served in Vietnam are presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran served in Vietnam, he is presumed to have been exposed to Agent Orange. A November 2002 Merced Pathology Medical Group surgical pathology report contains a clinical history of colon cancer and reflects that a colon segment was analyzed with a diagnosis of tubulovillous adenoma with patchy high grade dysplasia and carcinoma in-situ with no invasive disease identified, surgical margins negative for malignancy, and no metastatic carcinoma identified in three lymph nodes. December 2002 and subsequent VA treatment notes contain a diagnosis of colon cancer, status post right hemicolectomy. Colon cancer is not on the list of disease presumed service connected in Veterans exposed to Agent Orange. See 38 U.S.C.A. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e). Moreover, VA has found, based on a National Academy of Sciences analysis, that a positive association does not exist between gastrointestinal tract tumors (to include colon cancer) and Agent Orange exposure. 68 Fed. Reg. 27630, 27639 (May 20, 2003). However, notwithstanding the finding of a lack of a positive association between Agent Orange exposure and colon cancer and the absence of colon cancer from the list of diseases presumptively service connected in Veterans exposed to Agent Orange, a Veteran may seek to show that his own colon cancer is related to in-service Agent Orange exposure or otherwise related to service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.304(d) (2009) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). That was essentially the argument made by the Veteran in his March 2006 substantive appeal (VA Form 9). He wrote, "I am not disputing the VA's position about the lack of presumption about my medical condition," but, based on his knowledge of other veterans exposed to Agent Orange who have colon cancer and what VA doctors have told him orally, the Veteran stated that there seemed to be some connection between his Agent Orange exposure and colon cancer. In its November 2008 remand, the Board instructed the RO to afford the Veteran a VA examination as to whether "the present diagnosis was manifest in service," and also whether "there is any support for colon cancer being related to Agent Orange exposure." On remand, the Veteran was afforded a January 2009 VA examination, but the claims file was not available to the VA examiner and he did not provide the requested opinions. In May 2009, the Board again remanded the claim based on noncompliance with the November 2008 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board instructed the RO to obtain a medical opinion as to the etiology of colon cancer, whether or not it was manifest in service, and whether the colon cancer is due to Agent Orange exposure. The same physician who performed the January 2009 VA examination offered an opinion in a July 2009 addendum. He concluded that he could not resolve the issue of the etiology of the Veteran's colon cancer without resorting to mere speculation. In his April 2010 informal hearing presentation, the Veteran's representative argued that the physician did not provide a sufficient rationale as to why he could not resolved the issue without resort to speculation, see Jones v. Shinseki, 23 Vet. App. 382 (2010), and did not address the question of the relationship, if any, between the Veteran's colon cancer and herbicide exposure. The Board agrees. The VA physician noted the Veteran's 2002 hemicolectomy without recurrence. He also noted that "the Veteran's gastroenterological condition while in service appeared to be one of dyspepsia but not of cancer." This statement is not clear. The Veteran experienced chest pain during service and was diagnosed with a hiatal hernia, for which he has been granted service connection. In addition, the Veteran complained of dark stool (along with burning urination) in March 1973, but was diagnosed only with prostatitis, and multiple subsequent examination of the anus and rectum, as well as testing of stool for occult blood, was negative. Thus, the Board cannot determine what gastroenterological condition in service the physician was referring to. The physician also concluded that that the etiology of the Veteran's tubulovillous adenoma was not known. He cited a National Polypectomy registry study that found many possible factors as causes for tubulovillous adenoma, including genetic, lifestyle and diet, conditions such as acromegaly, streptococcus bacteremia, arteriosclerotic disease, cholesterol, utero sigmoidostomy sites, and inflammatory bowel disease. He noted ambiguously that that "other conditions are known" but that there was no specific information available in the claims file that clearly delineates the cause of the Veteran's condition and can provide a link between his cancer and service. Therefore, he concluded that he could not resolve the etiology of the Veteran's colon cancer without resorting to mere speculation. The physician did not mention Agent Orange exposure as a possible cause of the Veteran's colon cancer. As the Board specifically instructed that the examiner opine as to whether the Veteran's colon cancer was due to Agent Orange exposure, there was noncompliance with the Board's remand instructions, and another remand is required. Stegall, 11 Vet. App. at 271. In addition, as noted by the Veteran's representative, the Court recently held that, if an examiner finds that he cannot render an opinion without resort to speculation, but it is not clear from the examiner's statement that the examiner has considered all procurable and assembled datae by obtaining all tests and record that might reasonably illuminate the medical analysis, "it is the Board's duty to remand for further development." Jones v. Shinseki, 23 Vet. App. at 390. Here, although the examiner cited a study, he referred only generally and ambiguously to the Veteran's in- service symptoms and possible causes of colon cancer that are irrelevant to this case because they are conditions that the Veteran does not have, such as acromegaly, streptococcus bacteremia, and arteriosclerotic disease. Therefore, the analysis of the physician who conducted the January 2009 VA examination and offered an opinion in the July 2009 VA addendum does not provide an adequate basis on which the Board can decide the claim for service connection for colon cancer, and another remand is required for a new opinion as to the etiology of the Veteran's colon cancer. Accordingly, the claim for entitlement to service connection for colon cancer is REMANDED for the following action: Obtain an opinion as to the etiology of his colon cancer from a physician other than the one who performed the January 2009 VA examination and rendered the July 2009 opinion. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's colon cancer is related to either (1) Agent Orange exposure; (2) in-service gastrointestinal symptoms other than those based on which the Veteran is receiving service connection for hiatal hernia, or (3) anything else in service. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries; and that his reports must be taken into account in formulating the requested opinions. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs