Citation Nr: 9818329	
Decision Date: 06/15/98    Archive Date: 06/23/98

DOCKET NO.  97-12 776	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUES

1.  Entitlement to service connection for skin cancer, 
including entitlement based on herbicide exposure.  

2.  Entitlement to service connection for nasopharyngeal 
lymphoepithelial carcinoma as a result of herbicide exposure.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The veteran and his wife


ATTORNEY FOR THE BOARD

R. L. Shaw, Counsel 

INTRODUCTION

The veteran had active military service from August 1964 to 
July 1967.

This matter is before the Board of Veterans’ Appeals (Board) 
on appeal from rating decisions of July 29, 1996, and 
February 25, 1997, by the Columbia, South Carolina, Regional 
Office (RO) of the Department of Veterans Affairs which 
denied, respectively, claims for service connection for skin 
cancer and nasopharyngeal lymphoepithelial carcinoma.  The 
veteran testified at a hearing held at the RO on 
September 25, 1997, in connection with his appeal.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he was exposed to Agent Orange and 
that his skin cancer and nasopharyngeal lymphoepithelial 
carcinoma developed during his service in Vietnam as the 
result of this herbicide exposure.  


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered 
all of the evidence and material of record in the veteran’s 
claims file.  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 veteran has not met his 
initial burden of presenting evidence sufficient to justify a 
belief by a fair and impartial individual that the claims of 
service connection for skin cancer and the claim of service 
connection for nasopharyngeal lymphoepithelial carcinoma as a 
result of herbicide exposure are well grounded.  




FINDINGS OF FACT

1.  The veteran has not submitted competent evidence to 
establish that skin cancer is the result of exposure to 
herbicides during service.

2.  The veteran has not submitted competent evidence to 
establish that nasopharyngeal lymphoepithelial carcinoma is 
the result of exposure to herbicides during service.


CONCLUSIONS OF LAW

1.  The claim for service connection for skin cancer as a 
result of herbicide exposure is not well grounded.  
38 U.S.C.A. §§ 1110, 1112, 5107(a), 7104 (West 1991 & Supp. 
1997); 38 C.F.R. §§ 3.307, 3.309 (1997).

2.  The claim for service connection for nasopharyngeal 
lymphoepithelial carcinoma as a result of herbicide exposure 
is not well grounded.  38 U.S.C.A. §§ 1110, 1112, 5107(a), 
7104 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.307, 3.309 
(1997).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Background

The veteran’s service medical records, including the reports 
of examinations performed before and at the time of 
separation from active service, contain no reference to 
complaints or findings of skin or nasopharyngeal abnormality.

The veteran’s original claim for VA disability compensation 
was received in November 1995.  Received in connection with 
the claim were office records covering the period from May 
1976 through January 1993 from Dr. Roy E. Nickles, including 
the reports of biopsies performed on various dates between 
March 1985 and April 1990.  The biopsy reports show diagnoses 
of basal cell carcinoma of the left arm and shoulder in March 
1985, steatocystoma multiplex of the right forehead in June 
1985, basal cell carcinoma of the left upper arm in June 
1987, and basal cell carcinoma of the left shoulder in April 
1990.

VA outpatient treatment records covering the period from July 
1990, when the veteran underwent an Agent Orange screening 
examination, through March 1996 are of record.  The treatment 
entries show followup for recurrent basal cell carcinoma for 
which several surgical excisions were performed.

In February 1997 the veteran submitted a medical record from 
an unidentified facility which showed a diagnosis of 
nasopharyngeal lymphoepithelial carcinoma.

At his September 1997 hearing, the veteran testified that 
while in Vietnam, he had served for seven months at a 
location to the southeast of Saigon.  He denied postservice 
exposure to any chemicals.  He claimed that he had been 
treated for skin cancer on the day he left service and that 
he had been receiving treatment for skin cancer ever since.  
He reported that the nasopharyngeal lymphoepithelial 
carcinoma had been found initially in January 1997 and cited, 
as the basis for his belief that its onset was related to 
herbicide exposure in service, a publication by the National 
Cancer Institute, a copy of which he submitted for the 
record.  His wife expressed the belief that because the 
National Cancer Institute indicates that this type of cancer 
affects Asian people, the fact that Vietnam was in Asia might 
establish a link to service.  She also indicated that since 
the VA recognizes skin cancers as related to Agent Orange and 
the veteran also has skin cancer, this could mean that there 
would be a link between the two.  

The veteran also submitted at the hearing an article 
concerning another individual who developed cancer, 
specifically, cancer of the pharynx, who had served in 
Vietnam and had been granted service connection based on 
Agent Orange exposure.  Also received were two statements, 
dated in June and August 1997, from G. F. Geils, Jr., M.D., 
describing treatment for lymphoepithelioma of the 
nasopharynx.


II.  Analysis

The law provides that service connection may be granted for a 
disability which is shown to have been incurred in or 
aggravated by active military service.  38 U.S.C.A. §§ 1110 
(wartime), 1131 (peacetime) (West 1991 & Supp. 1997).  VA 
regulations also provide that service connection may be 
granted for any disease diagnosed after discharge when all of 
the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  
38 C.F.R. § 3.303(d) (1997)

However, the preliminary requirement for establishing 
entitlement to any VA benefit is that the applicant submit a 
claim which is sufficient to justify a belief by a fair and 
impartial individual that the claim is well grounded.  
38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997).  The United 
States Court of Veterans Appeals (Court) has 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 § 5107.  Murphy v. Derwinski, 1 Vet. 
App. 78, 81 (1991).  The burden of presenting evidence to 
render plausible each element identified by the Court to 
establish a well-grounded claim rests with the claimant.  
Caluza v. Brown, 7 Vet. App. 498 (1995).  Until a claim is 
established as well grounded, the VA is not subject to any 
obligation to provide assistance in developing further facts 
pertinent to the claim.  38 U.S.C.A. § 5107(a); see also 
Grivois v. Brown, 6 Vet. App. 136 (1994).  If a claim is 
found to be in fact well grounded, the VA is obligated to 
provide assistance in substantiating such claim, including 
the scheduling of a medical examination at VA expense.  

A three-pronged test to determine whether a claim is well 
grounded has been established by the Court.  There must be 
competent evidence of current disability (i.e., a medical 
diagnosis), of incurrence or aggravation of a disease or 
injury in service (lay or medical evidence), and of a nexus 
between the injury or disease in service and the current 
disability (medical evidence).  See Rabideau v. Derwinski, 
2 Vet. App. 141 (1991); Grottveit v. Brown, 5 Vet. App. 91 
(1993); Caluza, Id.  The Court has further held that, to be 
well grounded, a claim must be supported by evidence that 
suggests more than a purely speculative basis for an award of 
benefits; medical evidence is required, not just allegations.  
Tirpak v. Derwinski, 2 Vet. App. 69 (1992); Dixon v. 
Derwinski, 3 Vet. App. 261 (1992).  

Additional rules of law pertaining specifically to claims of 
service connection for disabilities due to exposure to 
herbicide agents are applicable in this case.  See 
38 U.S.C.A. § 1116 (West 1991 & Supp. 1997); 38 C.F.R. 
§§ 3.307, 3.309 (1997).  A herbicide agent is a chemical in a 
herbicide used in support of the United States and allied 
military operations in the Republic of Vietnam during the 
Vietnam Era.  38 C.F.R. § 3.307(a)(6)(i) (1997).  VA 
regulations define Vietnam Era service as extending from 
August 5, 1964, to May 7, 1975.  The Veterans’ Benefits 
Improvements Act of 1996, Pub. L. No. 104-275 extends the 
Vietnam Era to February 28, 1961, for all veterans who served 
in Vietnam, and extends special eligibility for health 
benefits based on Agent Orange exposure to those who served 
on or after January 9, 1962.  Service in the Republic of 
Vietnam includes service in the waters offshore and service 
in other locations if the conditions involved duty or 
visitation in the Republic of Vietnam.  38 C.F.R. 
§ 3.307(a)(6)(iii) (1997).

VA regulations specify that if a veteran was exposed to a 
herbicide agent during active military, naval, or air 
service, the following diseases will be considered service 
connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) 
(1997) are met, even though there is no record of such 
disease during service, provided further that the rebuttable 
presumption provisions of 38 C.F.R. § 3.307(d) (1997) are 
also satisfied:  Chloracne or other acneiform disease 
consistent with chloracne; Hodgkin’s disease; non-Hodgkin’s 
lymphoma; porphyria cutanea tarda; multiple myeloma, 
respiratory cancers (cancers of the lung, bronchus, larynx, 
or trachea), and soft tissue sarcoma.  38 C.F.R. § 3.309(e) 
(1997).  These diseases shall have become manifest to a 
degree of 10 percent or more at any time after service, 
except that chloracne, or other acneiform disease consistent 
with chloracne, and porphyria cutanea tarda shall have become 
manifest to a degree of 10 percent or more within a year, and 
respiratory cancers within 30 years, after the last date on 
which the veteran was exposed to a herbicide agent during 
active military, naval or air service.  38 C.F.R. 
§ 3.307(a)(6)(2) (1997).  Effective November 7, 1996, 
presumptive service connection is also warranted for acute 
and subacute peripheral neuropathy and prostate cancer under 
38 C.F.R. § 3.309(e).  38 C.F.R. §§ 3.307, 3.309, as in 
effect on and after November 7, 1996.  For purposes of this 
section, the term acute and subacute peripheral neuropathy 
means transient peripheral neuropathy that appears within 
weeks or months of exposure to a herbicide agent and resolves 
within two years of the date of onset.  38 C.F.R. § 3.309(e) 
Note 2 (1997).  An amendment to 38 C.F.R. § 3.307(a)(6)(2) 
has been amended to provide a one-year manifestation period 
from the date of the last exposure for acute and subacute 
peripheral neuropathy.  Presumptive service connection is 
warranted for prostate cancer that manifests itself to a 
degree of 10 percent at any time after exposure.

The Secretary of Veterans Affairs (Secretary) formally 
announced in the Federal Register on January 4, 1994, that a 
presumption of service connection based on exposure to 
herbicides used in Vietnam was not warranted for certain 
conditions, or for “any other condition for which the 
Secretary has not specifically determined a presumption of 
service connection is warranted.”  59 Fed. Reg. 341 (1994).  
However, the United States Court of Appeals for the Federal 
Circuit (Court of Appeals) subsequently determined that the 
Veterans’ Dioxin and Radiation Exposure Compensation 
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-
29 (1984) does not preclude a veteran from establishing 
service connection with proof of actual direct causation.  
Combee v. Brown, 34 F.3d 1039 (1994).

In this case, the veteran had qualifying service in Vietnam; 
therefore, exposure to Agent Orange is presumed.  38 C.F.R. 
§ 3.307(a)(6) (1997).  However, whether he currently has a 
disorder related to Agent Orange exposure is a question which 
requires a medical diagnosis.  Grottveit, Id.  The skin 
cancer and nasopharyngeal cancer for which service connection 
is claimed do not fall within any of the categories of 
presumptive disabilities listed in the regulations.  The 
nasopharyngeal carcinoma does not fall within the category of 
“respiratory cancers (cancers of the lung, bronchus, larynx, 
or trachea),” and the skin cancers do not constitute one of 
the forms of soft tissue sarcomas itemized.  Therefore, the 
presumption in favor of service connection is not applicable 
to either of the carcinomas at issue.  38 C.F.R. 
§§ 3.307(a)(6), 3.309(e) (1997).

Under Combee, Id., the veteran may still establish service 
connection if either skin cancer or nasopharyngeal 
lymphoepithelioma is shown to be related to Agent Orange 
exposure in service.  A conclusion to that effect requires a 
medical diagnosis or medical opinion as to causation, and the 
Court has held that where an issue involves medical 
causation, competent medical evidence is necessary to 
establish a well-grounded claim.  Grottveit, Id.  See also 
Brock v. Brown, 10 Vet. App. 155 (1997) with regard to the 
requirements for a well-grounded Agent Orange claim.  

The record contains no medical evidence specifically stating 
that the cancers at issue herein are the result of Agent 
Orange exposure.  The veteran has made allegations to that 
effect, but he has submitted no medical evidence which 
documents a nexus between his carcinomas and Agent Orange 
exposure.  Two statements from G. F. Geils, Jr., M.D., have 
been submitted with respect to the nasopharyngeal cancer, but 
the information provided is limited to a description of the 
veteran’s current status; no information is provided with 
respect to any opinion that Dr. Geils may have as to the 
etiology of the condition, specifically, the likelihood or 
lack of likelihood of a relationship to Agent Orange 
exposure.  

The veteran has also submitted an article about a Vietnam 
veteran who had established service connection for his cancer 
based on Agent Orange exposure.  The article does not 
strengthen his claim because the individual in question has 
cancer of the larynx, one of the forms of cancer for which 
presumptive service connection may be granted.  The veteran’s 
cancer involves the nasopharyngeal area rather than the 
larynx.  A circular from the National Cancer Institute 
submitted by the veteran provides general information 
concerning nasopharyngeal carcinoma, but is not material to 
the question of whether the veteran’s individual carcinoma is 
related to herbicide exposure.

In the absence of medical documentation of a nexus between 
carcinoma and service, the only evidence on file consists of 
statements by the veteran and his wife concerning their 
belief that the carcinomas were related to Agent Orange 
exposure.  The veteran and his wife are competent to provide 
testimony regarding such matters as the symptoms and 
manifestations of the diseases, but they are not qualified to 
render a medical opinion regarding their cause.  Grottveit, 
Id; see also Espiritu v. 


Derwinski, 2 Vet. App. 492 (1992) (a layperson is not 
competent to provide probative statements or testimony 
regarding medical matters).

Accordingly, the Board finds that the veteran has not 
presented competent evidence showing that either skin cancer 
or nasopharyngeal lymphoepithelioma is related to herbicide 
exposure in service.  Consequently, neither claim is well 
grounded.  In the absence of a well-grounded claim, service 
connection must be denied.  Edenfield v. Brown, 8 Vet. App. 
384 (1995).  Although the RO did not specifically cite the 
absence of a well-grounded claim as the basis for the denial 
of service connection, this omission constitutes harmless 
error.  Meyer v. Brown, 9 Vet. App. 425 (1996).  The RO’s 
failure to adjudicate the question of well groundedness did 
not result in prejudice to the veteran; to the contrary, by 
adjudicating the claims as if they were well grounded, the 
veteran received a greater degree of consideration than would 
have been required for a well-groundedness determination.  
Bernard v. Brown, 4 Vet. App. 384 (1993).

The law specifies where an application for benefits is not 
complete and the VA is on notice of medical evidence that may 
complete the application, there is a VA obligation under 
38 U.S.C.A. § 5103(a) (1991 & Supp. 1997) to inform the 
veteran of the evidence necessary to complete his 
application.  Robinette v. Brown, 8 Vet. App. 69 (1995).  
However, the veteran has not identified any medical evidence 
which would render his claims for service connection based on 
herbicide exposure well grounded.  See also Slater v. Brown, 
9 Vet. App. 240 (1996) and Gobber v. Derwinski, 2 Vet. App. 
470 (1992).  The RO has satisfactorily informed the veteran 
of the evidence necessary to complete his application 
pursuant to 38 U.S.C.A. § 5103(a).  In addition, the 
discussion by the Board herein has further explained the 
elements necessary to establish a well-grounded claim.  Under 
these circumstances, the requirements of 38 U.S.C.A. 
§ 5103(a) and Robinette have been adequately satisfied.



ORDER

The appeal for service connection for skin cancer as a result 
of herbicide exposure is denied.  

The appeal for service connection for nasopharyngeal 
lymphoepithelial carcinoma as a result of herbicide exposure 
is denied.  


REMAND

The Board’s finding that the claim for service connection 
based on herbicide exposure is not well grounded does not 
preclude consideration of whether service connection may be 
granted for skin cancer on other legal grounds.  With respect 
to skin cancer, the veteran has made contentions which in 
effect raise the issue of entitlement to service connection 
on a direct or presumptive basis without regard to the 
provisions of law relating to herbicide exposure.  The Board 
is obligated to consider the claim for service connection 
under every legal theory by which entitlement to compensation 
might potentially be established.  See Floyd v. Brown, 9 
Vet.App. 88 (1996).  

The veteran claims that the skin cancer has been present ever 
since service.  He testified at his hearing that he had 
received medical treatment for skin cancer ever since 
separation, beginning, in fact, on the day he left service.  
If medically substantiated, this assertion could provide a 
basis for the granting of service connection on the basis of 
direct service incurrence or on a presumptive basis under the 
provisions of law relating to disorders, including 
carcinomas, which become manifest to a degree of 10 percent 
or more within one year after service.  38 U.S.C.A. §§ 1112, 
1113, 1137 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.307, 
3.309 (1997).



The veteran’s allegations are not sufficient by themselves to 
render the claim for direct or presumptive service connection 
for skin cancers well grounded, but the claim could be 
rendered well grounded by the acquisition of documents 
corroborating the assertion that the condition requiring 
treatment since the day of discharge was skin cancer.  The 
veteran indicated at his hearing that the doctor who treated 
him is currently deceased but that it might still be possible 
for him to obtain the doctor’s records.  

The Board finds that the veteran’s testimony has put the VA 
on notice of the “likely existence” of competent medical 
evidence that would, if true, be relevant and necessary for 
full and fair adjudication of the claim and that the Board is 
subject to an obligation, separate and apart from the duty to 
assist which would attach under § 5107(a) in the event that 
the claim is found to be well grounded, to accord him an 
opportunity to document his assertions.  See Robinette, Id.  
(See discussion of Robinette above.).  Pursuant to 
38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1997) and the 
decision in Robinette, Id., the veteran is advised that the 
evidence necessary to complete his application, render his 
claim well-grounded, and make his strongest case on the 
merits would consist of medical documentation supporting his 
claim of receipt of medical treatment for skin cancer 
throughout the period since separation from service, 
particularly during the one-year period immediately after 
separation.  

In view of the foregoing, the Board finds that additional 
development of the record is warranted and the case is 
REMANDED for the following actions:

1.  The RO should take appropriate steps 
to accord the veteran an opportunity to 
submit medical records documenting the 
claimed treatment for skin cancer by a 
private physician beginning on the day of 
separation from service.  The veteran 
should be given a reasonable period of 
time in which to perform the actions 
necessary to determine whether the 
records from the deceased physician still 
exist and where they are located and to 
make a request for them and obtain a 
response.  The veteran should be advised 
that he will also be free to submit any 
other evidence and argument he deems 
material to the claim, including any 
other documents pertaining to treatment 
for skin cancer during the period 
immediately after service.

2.  The RO should review all material 
received from the veteran pursuant to the 
remand and make a determination as to 
whether the claim for skin cancers on the 
basis of direct or presumptive incurrence 
is well grounded.  If the claim is found 
to be well grounded, all actions 
necessary to satisfy the statutory duty 
to assist should be performed, including 
the performance of a current VA 
examination.

3.  Thereafter, the claim should be 
reviewed by the RO.  If the decision 
remains adverse to the veteran, a 
supplemental statement of the case should 
be prepared, and the veteran and his 
representative should be given a 
reasonable period of time for reply.

Thereafter, the claim should be returned to the Board for 
further review, if in order.  No action is required of the 
veteran until he receives further notice.  The purpose of 
this remand is to obtain additional information and to ensure 
due process of law.  The Board does not intimate any factual 
or legal conclusions as to the outcome ultimately warranted 
in this appeal.

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 
Veterans Appeals 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. 1997) (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.


		
	G. H. SHUFELT
	Member, Board of Veterans’ Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1997), 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 jurisdiction on or 
after November 18, 1988.  Veterans’ Judicial Review Act, Pub. 
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988).  The date 
that appears on the face of this decision constitutes the 
date of mailing and the copy of this decision that you have 
received is your notice of the action taken on your appeal by 
the Board of Veterans’ Appeals.  Appellate rights do not 
attach to those issues addressed in the remand portion of the 
Board’s decision, because a remand is in the nature of a 
preliminary order and does not constitute a decision of the 
Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) 
(1996).
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