Citation Nr: 0811417 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 06-09 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for soft tissue sarcoma secondary to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005 and November 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the above claim. FINDINGS OF FACT 1. The veteran did not serve in Vietnam. 2. The veteran's current soft tissue sarcoma did not have its onset during active service, or within one year after separation from service, or result from disease or injury in service, to include exposure to herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for soft tissue sarcoma have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic disorders, such as malignant tumors, may be established based on a legal "presumption" by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. VA treatment records show the veteran currently suffers from malignant soft tissue sarcoma. Therefore, the first requirement for service connection for this claim, the existence of a current disability, is met. See Hickson, 12 Vet. App. at 253. However, the veteran does not contend, and the medical evidence from service does not show, that his sarcoma had its onset in service. The service medical records during the period of active military service document no complaints or treatment for sarcoma and the veteran was not diagnosed until August 2004, many years after service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against a claim for direct service connection. See Maxon v. Gober, 230 F.3d 1330, (Fed. Cir. 2000). The veteran does contend that he was exposed to herbicides during his service in Thailand and when he touched down for 4 hours in Vietnam on May 13, 1968 during a flight to Thailand. For veterans who served in Vietnam, service connection on a presumptive Agent Orange basis is available for soft tissue sarcoma under current law. 38 U.S.C.A. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e). However, this presumption is not available to the veteran as he did not serve in Vietnam and there is no evidence to support the veteran's presence in Vietnam, including while en route to Thailand. The RO made several attempts to verify the veteran's presence in Vietnam. In November 2004, the National Personnel Records Center (NPRC) stated that no dates for Vietnam service were shown. The RO specifically inquired with NPRC as to the veteran's claim that he was in Saigon on or about May 13, 1968. In April 2005, the NPRC responded to the inquiry that it was not a matter of record. Finally, the RO attempted to verify the veteran's stop-over in Saigon through his military pay records. However, the Defense Finance Accounting Service stated in July 2005 that they were unable to locate the veteran's Master Military Pay Account. In a July 2005 letter, the RO notified the veteran that it could not confirm his claim that he had actually been in Vietnam and requested that he submit any additional evidence to support his claim that he was on the ground in that country. In a March 2007 letter, the RO notified that veteran of the unsuccessful attempts to obtain confirmation that he had been in Vietnam and again asked that he submit any relevant documents in his possession. In a May 2007 response, the veteran reiterated that he was in Vietnam and if the government lost any records, it should not be held against him. The absence of any evidence in the veteran's official record to substantiate any service in Vietnam is evidence negating such service. Regarding the veteran's assertions of service in Thailand, the Board does not dispute such service. However, service in Thailand is not included in the presumptive regulatory provisions of 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii). Thus, while the Board has considered the argument and evidence presented by the veteran that veterans who served in Thailand during the Vietnam War were also exposed to Agent Orange and that the presumptive regulatory provisions for exposure to Agent Orange should apply to such veterans, the Board is bound by its own laws and regulations as written. The veteran was correct that herbicides were used in Thailand; however, they were used from 1964 to 1965. The veteran's tour in Thailand was from 1968 to 1969. Therefore, he was not present in the country while herbicides were used. As there is no evidence showing exposure to herbicides, service connection for soft tissue sarcoma as secondary to exposure to Agent Orange is not warranted. The Board is aware that a VA physician in November 2006 noted that the veteran was in Vietnam briefly, served in Thailand and was exposed to Agent Orange. This physician opined that it is more likely than not that the veteran's sarcoma was related to his prior exposure to Agent Orange. However, there is no indication that this physician reviewed the claims folder, including the service medical records. Rather, it appears that the examiner was merely recording a history as provided by the veteran. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As stated above, there is no evidence that the veteran was exposed to any herbicides, including Agent Orange, during service. Accordingly, the opinion was based on an unestablished fact and is not found to be persuasive. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) Neither the Board nor the veteran (or his representative) is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The record does not contain a persuasive opinion linking the veteran's current soft tissue sarcoma to service and the medical evidence of record does not otherwise demonstrate that it is related to service. The only medical evidence of record supporting the claim for service connection for sarcoma was the unsupported November 2006 VA medical opinion. Aside from this opinion, the record shows VA treatment for soft tissue sarcoma, however, there is no competent medical evidence showing that it is somehow related to service. Finally, the evidence does not show that the veteran was diagnosed with soft tissue sarcoma within one year following his period of active military service. This disability was not diagnosed until 2004. As such, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in November 2004. An additional letter was sent in July 2005. The claim was thereafter readjudicated in an April 2007 supplemental statement of the case. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has obtained service medical records and assisted the veteran in obtaining evidence. In this case, VA need not obtain an examination as the evidentiary record does not show that the veteran's current soft tissue sarcoma is associated with an established event, injury, or disease in service; manifested during an applicable presumptive period; or otherwise associated with military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. ORDER Service connection for soft tissue sarcoma secondary to herbicide exposure is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs