Citation Nr: 0812489 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-29 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for lung cancer, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from April 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In his substantive appeal, the veteran requested a hearing before a Veterans Law Judge sitting at the RO. Such a hearing was scheduled. However, the request was withdrawn in a March 2008 communication submitted by the veteran's representative. It appears that the veteran additionally may be raising entitlement to service connection for renal cancer. However, this issue has not been previously adjudicated by the RO. This issue is therefore referred back to the RO for further consideration. FINDINGS OF FACT 1. The veteran had active service in the Republic of Vietnam between January 9, 1962 and ending on May 7, 1975. 2. Lung cancer was detected in 2004, over 30 years following the veteran's separation from active service; the competent evidence fails to show that the veteran's lung cancer is causally related to active service. 3. The weight of the competent evidence shows that the veteran's cancer originated in the kidneys and spread to the lungs. CONCLUSION OF LAW Lung cancer was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is claiming entitlement to service connection for lung cancer. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the veteran contends that his lung cancer is due to exposure to herbicides during active service. In this vein, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2007) 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) (2007) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2007). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2007). In the present case, the veteran's military records reflect service in the Republic of Vietnam between January 9, 1962 and May 7, 1975. As such, it is presumed that he was indeed exposed to an herbicide agent such as Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). Moreover, affirmative evidence does not exist to rebut that presumption. Despite presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is still not for application. Indeed, service connection is only warranted on this basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e), to include chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, type II diabetes mellitus, 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). Again, the veteran is claiming service connection for lung cancer. The Board acknowledges that lung cancer is among the diseases listed under 38 C.F.R. § 3.309(e). Nevertheless, a grant of service connection on a presumptive basis is not warranted here. The reason for this is that the veteran's cancer did not originate in the lungs. Rather, the medical records reflect metastatic kidney cancer to lung cancer, as will be discussed below. A radiological report from July 2004 contains impressions showing nodularity throughout both lungs with a right renal mass. The doctor suspected metastatic renal cell carcinoma. Shortly thereafter, the veteran had his right kidney removed due to renal cell carcinoma in July 2004 at the Central Texas Medical Center. An August 2004 report from that facility noted that the veteran had metastatic renal cell carcinoma to the lungs and chest. A VA examination in December 2004 additionally contains a diagnosis of metastatic disease in both lungs and also indicates renal cell carcinoma as the primary tumor with status post right nephrectomy. The claims file additionally contains a private treatment record dated in September 2006 from J. J., M.D. That physician stated that the veteran had "metastatic kidney cancer to the lungs." The above mentioned records indicate that the cancer originated in the kidneys and spread to the veteran's lungs. It is acknowledged that another September 2006 private treatment record written by R. J. A., D.O. in September 2006 indicated that the veteran had lung metastasis before the onset of his Renal Cell Carcinoma. He added that the cancer that formed in his kidney caused further lung mets. Although this physician appears to find that the lung cancer preceded the renal cancer, the overwhelming weight of the competent evidence shows otherwise. Again, the preponderance of the evidence demonstrates that the veteran's the cancer originated in the kidneys and traveled to the lungs. Moreover, presumptive service connection for renal cancer is not permissible because that disease is not listed under 38 C.F.R. § 3.309(e). Where the evidence, as here, does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the claims file does not contain a competent opinion relating the cause of the veteran's lung cancer to in-service herbicide exposure. For the above reasons, there is no basis for a grant of service connection for lung cancer based on herbicide exposure. The Board has also considered whether the evidence otherwise demonstrates that the veteran's currently diagnosed lung cancer was incurred in active service The evidence in the record however, does not establish service connection through proof of direct causation. Service records fail to demonstrate any complaints or treatment referable to cancer of the lungs, nor do they reveal any generalized lung complaints. To the contrary, physical examinations in August 1966 and August 1969 were both normal. The veteran denied asthma, shortness of breath and chronic cough in contemporaneous reports of medical history. Following service, there is no demonstration of treatment for lung cancer until 2004, several decades following separation from active duty. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, quite obviously, the veteran has not claimed to have had lung cancer since his separation from service in 1969. Rather, he is simply contending that the current lung cancer detected in 2004 was the result of herbicide exposure many years earlier. Thus, there are no contentions of continued symptomatology here. Moreover, the record does not contain competent evidence causally relating lung cancer to any incident of active service, to include, as already discussed, exposure to herbicides. The veteran himself believes that his lung cancer is causally related to active service. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, there is no support for a grant of service connection for lung cancer. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in October 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006, the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, he Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The veteran has also submitted private treatment records. In addition, he was afforded a VA medical examination in December 2004. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for lung cancer, claimed as due to exposure to herbicides is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs