Citation Nr: 0810555 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 06-04 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the postoperative residuals of nasopharyngeal cancer (lymphoepithelioma), claimed as the residual of exposure to Agent Orange. 2. Entitlement to service connection for coronary artery disease, status post bypass grafting with hypertension, claimed as the residual of exposure to Agent Orange. 3. Entitlement to service connection for attention deficit hyperactivity disorder, claimed as the residual of exposure to Agent Orange. 4. Entitlement to service connection for depression and/or anxiety, claimed as the residual of exposure to Agent Orange. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from January 1970 to July 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of April 2005, June 2005, and December 2005 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2008, the veteran submitted additional statements inquiring about the status of his claim, and information related to matters not currently on appeal before the Board. Given the foregoing, no additional action in this regard is needed. FINDINGS OF FACT 1. Nasopharyngeal cancer is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service, including exposure to Agent Orange. 2. Coronary artery disease, status post bypass grafting with hypertension, is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service, including exposure to Agent Orange. 3. Attention deficit-hyperactivity disorder is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service, including exposure to Agent Orange. 4. Depression and/or anxiety is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service, including exposure to Agent Orange. CONCLUSIONS OF LAW 1. Nasopharyngeal cancer was not incurred in or aggravated by active military service, nor may such a disability be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Coronary artery disease, status post bypass grafting with hypertension, was not incurred in or aggravated by military service, nor may such a disability be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. Attention deficit-hyperactivity disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 4. Depression and/or anxiety was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching this determination, the Board wishes to make it clear that it has reviewed all the evidence in the veteran's claims file, which includes: his multiple contentions, as well as service medical records and both VA and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran in this case seeks service connection for nasopharyngeal cancer, as well as for coronary artery disease, attention deficit-hyperactivity disorder, and depression and/or anxiety. In pertinent part, it is contended that all of the aforementioned disabilities had their origin as a result of the veteran's exposure to Agent Orange during his period of service in Japan and/or the Philippines. In that regard, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Moreover, where a veteran served for ninety (90) days or more during a period of war, and cardiovascular disease (including coronary artery disease and hypertension) becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Additionally, where a veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, certain diseases, including Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non- Hodgkin's lymphoma, prostate cancer, respiratory cancers (which is to say, cancers of the lung, bronchus, larynx, or trachea) and soft tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) shall be service connected, even though there is no record of such disease during service, where they become manifest to a degree of 10 percent or more any time after service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § § 3.307, 3.309 (e) (2007). For the purposes of this section, the term "herbicide agent" means a chemical or 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. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(ii) (2007). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involve duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 501 (West 2002); 38 C.F.R. §§ 3.307, 3.313 (2007). Finally, 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (2007). In the present case, service medical records are negative for history, complaints, or abnormal findings indicative of the presence of nasopharyngeal cancer, coronary artery disease, attention deficit-hyperactivity disorder, and either depression or anxiety. In point of fact, as of the time of a service separation examination in June 1972, a physical examination of the veteran's nose and throat was within normal limits, as was examination of his heart and vascular system. The veteran's neurologic and psychiatric evaluations were similarly within normal limits, and no pertinent diagnoses were noted. The earliest clinical indication of the presence of any of the disabilities at issue is revealed by private medical records dated in November 1989, more than 17 years following the veteran's separation from service, at which time he received a diagnosis of and treatment for a locally extensive lymphoepithelioma involving the nasopharyngeal area, with metastases to the left neck, and, most probably, the right neck, invading the occipital bone. Coronary artery disease, attention deficit-hyperactivity disorder, and depression were similarly first noted no earlier than 1999, once again, many years following the veteran's discharge from service. Significantly, at no time were any of the disabilities at issue attributed to the veteran's period of active military service, or to any claimed exposure to Agent Orange. The veteran argues that all of the disabilities currently under consideration are the result of his exposure to Agent Orange while servicing and/or washing aircraft during his period of overseas service in Japan and/or the Philippines. However, there is no indication that, based on the evidence of record, the veteran did, in fact, experience such exposure. Moreover, pursuant to applicable law and regulations, service connection on a presumptive basis based on exposure to Agent Orange is only available to veterans whose service involved other locations where the conditions of that service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 501 (West 2002); 38 C.F.R. §§ 3.307, 3.313 (2007). Significantly, based on correspondence from the National Personnel Records Center dated in October 2005, there is no evidence in the veteran's file to substantiate any service in the Republic of Vietnam. In addition to the foregoing, even if the Board presumes, without conceding, that the veteran was exposed to Agent Orange while working on aircraft in service, service connection is still not warranted. Not one of the veteran's disabilities is listed as a presumptive disease. The Secretary of Veterans Affairs has determined that 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. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for several conditions, including in relevant part, nasopharyngeal cancer, cognitive and neuropsychiatric effects, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). Further, there is no competent medical evidence of record relating the veteran's disorder to any claimed exposure. Based on the aforementioned, the Board is unable to reasonably associate any of the disabilities at issue, all of which were first persuasively documented many years following service separation, with any incident or incidents of the veteran's period of active military service, including exposure to Agent Orange. The Board also notes that the veteran's statements are not credible as the objective evidence of record does not substantiate his appellate assertions and, as a lay person, he does not possess the medical knowledge required to etiologically relate any current disorder to service or any event of service. Accordingly, service connection for the veteran's disabilities must be denied. The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; (3) inform the veteran about the information and evidence the veteran is expected to provide; and (4) request that the claimant provide any evidence in his possession pertaining to the claim. The Board finds that the VCAA notice requirements have been satisfied by correspondence in February and September 2005, which were issued prior to the initial rating decisions. In those letters, VA informed the veteran that, in order to substantiate a claim for service connection, the evidence needed to show that he had a current disability, as well as a disease or injury in service, and evidence of a nexus between the postservice disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the veteran of which information and evidence he was to provide to VA, and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that, on his behalf, VA would make reasonable efforts to obtain records which were not held by a federal agency, such as records from private doctors and hospitals. The RO told the veteran that he could obtain private records himself, and submit them to VA. He was also told to submit any evidence in his possession pertaining to his claims. In May 2006, the RO issued notice regarding the degree of disability and effective date of the disability to the veteran. To the extent that such notice with regard to the timing of its issuance is defective, the Board notes that such defect is harmless. The evidence establishes that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and more importantly, since service connection is being denied, any potential downstream issue is now moot. See generally, Dingess v. Nicholson, 19 Vet. App. 473 (2006); Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained service medical records, as well as both VA and private treatment records and examination reports. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for the postoperative residuals of nasopharyngeal cancer (lymphoepithelioma) is denied. Service connection for coronary artery disease, status post bypass grafting with hypertension, is denied. Service connection for attention deficit-hyperactivity disorder is denied. Service connection for depression and/or anxiety is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs