Citation Nr: 0621991 Decision Date: 07/25/06 Archive Date: 08/10/06 DOCKET NO. 04-18 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cancer of the larynx, claimed as due to Agent Orange exposure and/or asbestos exposure. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States ATTORNEY FOR THE BOARD Jason A. Lyons, Associate Counsel INTRODUCTION The veteran had active military service from August 1964 to August 1967. This case comes to the Board of Veterans' Appeals (Board) from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, which denied claims for service connection for cancer of the larynx, secondary to exposure to Agent Orange and/or asbestos during service, and for post-traumatic stress disorder (PTSD). In a May 2005 decision, the RO granted the claim for service connection for PTSD and assigned a 100 percent rating for the condition effective from July 31, 2002. The veteran received the highest possible rating for his PTSD and did not appeal the effective date. Hence, that claim has been resolved. See 38 C.F.R. § 20.204 (2005); Cf. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In his September 2004 correspondence, the veteran requested a hearing at the RO before a Veterans Law Judge (VLJ) of the Board (also called a "travel Board" hearing). In November 2004, he indicated that he instead wanted a video-conference hearing. His hearing was scheduled for April 2006, but he cancelled it in advance of the scheduled date. His representative has since submitted an additional statement in June 2006, confirming this cancellation and requesting that the Board consider this appeal on the basis of the evidence already on file. See 38 C.F.R. § 20.704(e) (2005). FINDINGS OF FACT 1. The RO has undertaken the appropriate measures to apprise the veteran of the procedures under the Veterans Claims Assistance Act (VCAA) for the evidentiary development of the claim for service connection for cancer of the larynx. Moreover, all relevant evidence necessary for an equitable disposition of this claim has been obtained. 2. In April 2002, the veteran was diagnosed as having cancer of the larynx. 3. The veteran served on a Navy ship stationed in the waters off the shore of the Republic of Vietnam from May to October 1966, and from June to July 1967. He did not at any point have service within the borders of Vietnam, including temporary duty or visitation. 4. There is no objective evidence indicating the veteran was exposed to Agent Orange during his military service. 5. The record also does not show any instance of asbestos exposure during service, and regardless, the preponderance of the competent evidence effectively rules out a medical relationship between cancer of the larynx and any asbestos exposure that may have occurred. 6. There is no competent evidence indicating cancer of the larynx developed due to any other incident of military service. CONCLUSION OF LAW The cancer in the veteran's larynx was not incurred or aggravated during service and may not be presumed to have been so incurred, including on the basis of Agent Orange exposure, or of claimed exposure to asbestos during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002), became effective on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Regarding the degree of disability element, Dingess/Hartman holds that a claimant must, at a minimum, be notified that should service connection be awarded, a schedular or extraschedular disability rating will be determined by applying relevant diagnostic codes in the rating schedule, found in Title 38, Code of Federal Regulations, to provide a disability rating from 0 percent to as much as 100 percent (depending on the disability involved) based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Moreover, consistent with the statutory and regulatory history, that notice must provide examples of the types of medical and lay evidence that the claimant could submit (or ask VA to obtain) that are relevant to establishing a disability - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing exceptional circumstances relating to the disability. As to the effective date element, Dingess/Hartman holds that the claimant must be notified that the effective date of an award of service connection and any assigned disability rating(s) will be determined based on when VA receives the claim, when the evidence that establishes the basis for a disability rating that reflects that level of disability was submitted, or on the day after the veteran's discharge from service if the claim that is the basis for which service connection is awarded is submitted within one year after discharge. Concerning the matter of timing, the Court states that the notice on the disability rating and effective date elements must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ, i.e., RO). Such timely notice provides a meaningful opportunity for a claimant to act responsively and to participate effectively in the development of his or her claim. When a content- complying - but late, notice is provided, a question is raised as to whether the claimant was prejudiced by the late notice, and the answer to that question depends on the factual situation in a particular case. See, too, Pelegrini II, 18 Vet. App. at 119-20 (where the Court also held, among other things, that VCAA notice, as required by 38 U.S.C. § 5103(a), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits). While the decision in Dingess/Hartman talks about "service connection" and involves downstream initial rating and effective date claims, the impact of this decision is not limited to Fenderson v. West, 12 Vet. App. 119 (1999) - type situations involving the assignment of staged initial disability ratings. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the Department that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim. For example, the notice for an increased rating claim needs to include a discussion of the effective date element, and the notice for a reopening claim needs to discuss both the rating and effective date elements, etc. Similarly, even for claims that "fall beyond" the five basic elements of a service connection claim, such as special monthly compensation, pension, etc., the effective date to be assigned if the claim is granted is a matter that needs to be addressed in the VCAA notice. These legal requirements that pertain to the content of VCAA notice that is afforded to a claimant seeking VA compensation or other benefits, have been satisfied through the RO's issuance of several notice letters, along with other relevant notice documentation of record. The initial VCAA notice letter sent to the veteran in August 2002 in particular, effectively met several of the essential elements of satisfactory notice as defined in Pelegrini II. That correspondence explained the general legal requirements in order to establish a valid claim for service connection, and thus, informed him of the evidence and information necessary to substantiate his claim. Also included was an explanation as to whose responsibility -- VA's or the veteran himself, it was to obtain additional evidence relevant to disposition of his claim, which constitutes notice as to the second and third elements of the Pelegrini II analysis. In this respect, the RO also requested that the veteran identify any further VA or private treatment records that had not already been obtained, and enclosed a copy of VA Form 21-4142 (Authorization and Consent to Release of Information) upon which he was informed that he could provide such information. Subsequent notice letters issued to the veteran continued to advise him of the procedures in effect for the development of his claim. An October 2002 letter requested that the veteran provide any further evidence which would help verify the dates of his Vietnam service, including with respect to that period of time which he spent within the borders of Vietnam itself -- as explained below, which is relevant to the determination as to whether he may be presumed to have undergone exposure to Agent Orange in service. Through its March 2004 correspondence, the RO also placed the veteran on notice as to what information on his unit of assignment in service, and pertaining to his specific military duties therein he would need to establish, as evidence of potential occupational exposure to asbestos materials during service. Significantly, also, that letter included language requesting that in the event that the veteran had any evidence in his possession that pertained to his claim, to please send that information to the RO. So based upon this letter, the fourth and final "element" of satisfactory VCAA notice as defined under Pelegrini II was also met. See 18 Vet. App. at 120-121. Additionally, another letter issued in April 2004 contained information that was substantially similar to the correspondence from the previous month with regard to the process for development of the veteran's claim. Other key notice documents in this case include the March 2004 statement of the case (SOC), and several supplemental SOCs (SSOCs) (dated from June 2004 through September 2005), which set forth in a greater level of detail what type of evidence would be necessary to substantiate the veteran's claim. The March 2004 SOC also included citation to the legal criteria for establishing service connection on a presumptive basis as due to Agent Orange exposure under 38 C.F.R. § 3.309(e), as well as citation to 38 C.F.R. § 3.159 - - the regulation that sets forth the procedures by which VA will assist a claimant in the development of a claim for compensation benefits. Furthermore, a more recent letter issued to the veteran in April 2006, primarily for the purposes of notifying him that his appeal had been certified to the Board, included a comprehensive explanation of the disability rating and effective date elements of a claim on appeal for VA benefits, consistent with the recent holding in Dingess/Hartman. Thus, the veteran has been sufficiently apprised of the disability rating and effective date elements of his claim, as required under the Dingess/Hartman decision. In any event, the notice information provided as to the evidence necessary to establish a disability rating or effective date for the disability on appeal, is not determinative in this case, because the Board will conclude below that the preponderance of the evidence is against the veteran's claim for service connection, with the result that any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. In addition to the foregoing discussion as to the content of the VCAA notice provided to the veteran, it is also significant that the relevant notice information has been issued to the veteran in a timely manner. Here, the first two notice letters dated in August and October 2002, were issued to the veteran in advance of the November 2002 rating decision on appeal, which represented the initial adjudication of his claim for service connection for cancer of the larynx. So those letters were clearly timely under the legal definition provided under Pelegrini II, that the relevant notice letter precede the initial RO decision denying the claim on appeal. See 8 Vet. App. at 119-20. The following VCAA letters (dated from March 2004 through April 2006), were each issued subsequent to the November 2002 decision, and thus, were not in accordance with the criteria for timely notice. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). However, any deficiency in the timing of the notice sent to the veteran has not had any detrimental impact upon the continuing adjudication of his claim. Following the issuance of the most recent comprehensive VCAA notice letter in April 2004, the veteran had ample opportunity to respond with supporting evidence and/or argument prior to the RO's issuance of the September 2005 SSOC that continued the denial of his claim. During that time period, he provided several additional items of evidence (some of which pertained to his then-pending claim for service connection for PTSD, which has since been granted), including copies of deck logs from the ship on which he was stationed while in service, and various personal statements. Note that the letter issued to him in April 2006 that informed him of the Court's decision in the Dingess/Hartman decision also included language requesting that he submit any additional evidence in support of his claim, so that correspondence also placed him on notice of the opportunity to provide further evidence and information. For these reasons, the Board finds that regardless of the timing of the subsequent VCAA notice letter, the veteran has been afforded "a meaningful opportunity to participate effectively in the processing of his claim by VA." See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2004), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Moreover, the RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claim. In this respect, the RO has obtained his service medical records (SMRs) and service personnel records, and has also contacted the National Personnel Records Center (NPRC) for more definitive information as to the dates of and locations at which the veteran served. The veteran's VA outpatient and hospitalization records have been obtained and included in the claims file, as well as records pertaining to his receipt of disability benefits from the Social Security Administration (SSA). In addition, the RO has arranged for the veteran to undergo VA examination in connection with the claim on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). To support his claim, the veteran has submitted recent treatment records from several private medical providers, copies of deck logs from the ship on which he was stationed while in service, and various personal statements. He also previously requested the opportunity to attend a video-conference hearing before a VLJ of the Board, however, as mentioned, he later cancelled that hearing in advance of when it was scheduled to be held. See 38 C.F.R. § 20.704(e). In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claim. Governing Laws and Regulations Service connection may be granted for current disability that is the result of a disease or an injury incurred or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2005). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Furthermore, the diseases listed at 38 C.F.R. § 3.309(e), in turn, shall be presumptively service connected if there are circumstances establishing herbicide agent exposure (either on the basis of the legal presumption discussed above, or on competent evidence of such exposure), even though there is no record of such disease during service. These conditions are: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Additionally, as a result of amendments to 38 C.F.R. § 3.309(e), Type-II Diabetes Mellitus and chronic lymphocytic leukemia (CLL) have been added to the list of diseases for which presumptive service connection can be established. See 66 Fed. Reg. 23166 (May 8, 2001); 68 Fed. Reg. 59540 (October 16, 2003). The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994). See also 61 Fed. Reg. 41442-41449 and 57586-57589 (1996). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) 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 -- in other words, that his exposure to Agent Orange was the basis for his development and eventual diagnosis of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, VA's Adjudication Procedure Manual, which is currently in the process of reorganization from the M21-1 to the new M21-1 MR (the provisions of the adjudication manual that pertain to the present case have already undergone this revision), and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in the VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, section C (December 13, 2005) (previously cited at M21-1, part VI, paragraph 7.21). VA must adjudicate the veteran's claim for service connection for cancer of the larynx, with respect to the alleged basis of entitlement that this disability developed as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1 MR, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(h)). See also M21-1 MR, Part IV, Subpart ii, Chapter 1, section H (previously cited at M21-1, part III, paragraph 5.13). VA must also determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1 MR, Part IV, Subpart ii, Chapter 1, section H. The M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(a). In addition, the M21-1 MR notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(g). The M21-1 MR also provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(e)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(d)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (see M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(c)). The Court has held that the M21-1 (as indicated, for which substantial portions have been reorganized or revised at the updated "M21-1 MR" Adjudication Procedure Manual) did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 04-2000 (April 13, 2000), VA's Office of General Counsel held, in relevant part, that: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. (Again, these provisions of the M21-1 referenced in VAOPGCPREC 04-2000 have since been relocated, although not substantively revised at M21-1 MR, Part IV, Subpart ii, Chapter 2, section C (December 13, 2005)). In determining whether service connection is warranted, VA is responsible for considering both the positive and negative evidence. If the evidence, as a whole, is supportive or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is negative, then service connection must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The consideration of the medical evidence as to the merits of the claim for service connection in this case will consist of reviewing several potential legal bases of entitlement, including whether the veteran's post-service diagnosed cancer of the larynx and any residuals of this condition are attributable to herbicide and/or asbestos exposure while in the military. There is definitive medical evidence indicating the current disability claimed was, in fact, diagnosed in April 2002 by a private physician, and that the veteran thereafter underwent treatment for this condition and additional follow-up evaluations by both VA and private doctors. So he clearly had cancer of the larynx in 2002, meaning the determinative issue is whether this condition is related to his military service and, in particular, to exposure to Agent Orange and/or asbestos. Each potential theory of legal entitlement will be addressed on its merits, and will involve first the determination as to whether the claimed disability at issue of cancer of the larynx is associated with alleged Agent Orange exposure in service, either on the basis of presumed herbicide exposure, or other competent evidence of such exposure. In this respect, respiratory cancers -- including cancer of the larynx, are considered to be amongst those conditions that may be presumed to be service-related where there is competent evidence as well of in-service herbicide exposure. See 38 C.F.R. § 3.309(e). See also 66 Fed. Reg. 23166 (May 8, 2001); 68 Fed. Reg. 59540 (October 16, 2003). Accordingly, the veteran's cancer of the larynx would be deemed to be service-connected provided it were initially shown that he had contact with Agent Orange during service -- and without the requirement for a supporting physician's opinion or other medical evidence that identified a causal relationship between cancer of the larynx and service. However, the occurrence of herbicide exposure while in service has not been objectively verified from the competent evidence of record. According to the applicable VA regulation, the presence of Agent Orange exposure in service shall itself be presumed in the case of a veteran who served in the Republic of Vietnam during the Vietnam era, 38 C.F.R. § 3.307(a)(6)(iii). As the veteran has indicated, and as also shown in his service personnel records, his military service included a substantial period of time during which he served on a Navy ship that was stationed off the coast of the Republic of Vietnam. He does not however allege that he traveled within the geographical borders of Vietnam at any point, including as part of any temporary duty assignment. He has explained that on one or more instances he may have come into contact with Agent Orange from having been in proximity to helicopters that landed aboard the ship, which had transported other servicemen from Vietnam. Also, in September 2002, the NPRC indicated, in response to an inquiry from the RO as to the veteran's official duty assignment in service, that he had served aboard the U.S.S. Intrepid during a period of time for which that vessel was stationed in the official waters of Vietnam, from May and October 1966, and also from June to July 1967. But the NPRC further indicated it was "unable to determine whether the veteran had in- country service on the Republic of Vietnam." Hence, there is no evidence establishing the veteran had actual service in-county in the Republic Vietnam, which is a preliminary requirement to warrant the presumption of Agent Orange exposure during service. See 38 C.F.R. §§ 3.307(a)(6)(iii). VA's Office of General Counsel has likewise held in VAOPGCPREC 27-97 (July 23, 1997) that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam. And since then, VA has reiterated the viewpoint that service in deep-water vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as service in the Republic of Vietnam. See comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed. Reg. 23166 (May 8, 2001). The presumption of Agent Orange exposure while in service thus does not apply. Notwithstanding whether herbicide exposure in service may be presumed, the record also does not otherwise show any documented instance of such exposure. While the veteran has identified the arrival of U.S. military helicopters from Vietnam as a potential source of hazardous materials exposure, there is unfortunately no objective basis upon which to determine whether Agent Orange exposure indeed occurred through this medium, including after having evaluated his SMRs and personnel records. In the absence of exposure to Agent Orange while in service (either presumptively or by relevant documentation), the post-service manifestation of cancer of the larynx may not, in turn, be presumed to have occurred therein. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). And inasmuch as there is no indication the underlying herbicide exposure occurred, which would warrant presumptive service connection, there is similarly no basis upon which to meet the even more comprehensive evidentiary requirement of a direct medical relationship between cancer of the larynx and Agent Orange exposure in service (an alternative theory of entitlement where the provisions for presumptive service connection due to herbicide exposure are inapplicable). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Another basis of entitlement that must be considered, however, is that of alleged exposure to material containing asbestos during service. Concerning this, the veteran's SMRs in particular do not provide documentation of incidents of such exposure, or show specific complaints of respiratory ailments that might otherwise be suggestive of relevant symptoms shown at that time. And as mentioned, the VA Adjudication Procedure Manual identifies some occupations generally associated with a higher incidence of asbestos exposure, such as work in shipyards, and proximity to asbestos cement sheet and pipe products (see M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(a)). But there is no indication the veteran had any of these specific occupational duties and responsibilities. It is still not inconceivable that he may have had some exposure to asbestos materials at one point or another during his military service. But even if he did, there is an April 2004 VA medical opinion of record following a respiratory system examination concluding his history of bilateral vocal cord cancer was most likely due to a history of cigarette smoking of approximately 25 years, and not asbestos exposure. The examiner providing this medical opinion considered the veteran's account of asbestos exposure from in service and reported treatment history, in addition to relevant examination findings. And while the claims file was not then available for review, in the absence of documentation of asbestos exposure in service (or conclusion from any post- service treatment provider indicating this may have occurred), there is no reasonable basis upon which to suggest that any different conclusion would have been presented on more thorough review of the record. So the weight of the evidence is clearly against the finding that post-service cancer of the larynx developed as a consequence of asbestos exposure in service. While the examiner identified a history of tobacco use as a likely cause of the development of the disability claimed, it should be noted that this finding could not, in itself, provide a basis of entitlement to the benefit sought. At present, VA law expressly precludes granting disability benefits on the basis of chronic smoking (i.e., use of tobacco-based products), for claims filed on and after June 9, 1998 (as in this case). See 38 U.S.C.A. §§ 1103, 1112, 1116. See also 38 C.F.R. § 3.300. Additionally, there is no further evidence suggesting the cancer of the larynx is related to the veteran's military service on any basis other than the previously considered theories of exposure to herbicides or asbestos materials. Through correspondence received in May 2005, the veteran's representative has alleged that an incident occurred in May 1966 onboard the ship on which the veteran served, in which there was a leak of hydrosulfuric acid and several individuals were killed or injured, and that the exposure to this chemical could be related to subsequent carcinoma of the larynx. The veteran also described this incident, himself, in his April 2005 response to a PTSD questionnaire as one of the alleged in-service stressors underlying his claim for service connection for PTSD (which has since been granted on the merits). However, there is no indication from the information provided, or the objective service records, that he himself was directly involved in this incident, or received chemical exposure to any degree. SMRs, as noted, are absent for report of any respiratory complaints or findings. Because there is not evidence of an actual precipitating cause or underlying event, there is no further need for inquiry into whether the presently claimed disability has a causal relationship to service on the basis of this incident or any other event of service, in addition to the claimed herbicide or asbestos exposure. See Cuevas, 3 Vet. App. at 548. See also Hickson v. West, 12 Vet. App. 247, 253 (1999) (medical nexus requirement for service connection consists of a link between current disability and identifiable in-service disease or injury); 38 C.F.R. § 3.303(d). The Board has taken into consideration the allegations of the veteran in adjudicating the claim on appeal. But since he is a layman, he does not have the necessary medical training and expertise to give a probative opinion on the cause of his cancer of the larynx -- including insofar as whether it is due to his claimed exposure to Agent Orange and materials containing asbestos during service. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For these reasons and bases, the competent evidence does not support the veteran's claim for service connection for cancer of the larynx -- in the absence of confirmed Agent Orange exposure, and further, because the preponderance of the evidence is against a relationship between the claimed disability and claimed asbestos exposure, or any other incident of service. So the benefit-of-the-doubt doctrine does not apply, and hence, his claim must be denied. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for cancer of the larynx, including from Agent Orange and/or asbestos exposure, is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs