Citation Nr: 0813211 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-28 847 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for soft tissue sarcoma. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from March 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the VARO in Houston, Texas, that denied entitlement to the benefits sought. A review of the evidence of record reveals that service connection is currently in effect for degenerative joint disease of the left knee, rated as 10 percent disabling, and degenerative joint disease of the left ankle, currently rated as 10 percent disabling. FINDINGS OF FACT 1. There is no documentation that Agent Orange or any other herbicide was sprayed around military bases in Thailand, except for one isolated area in the early and mid-1960's. 2. There is no competent medical evidence of record associating the veteran's current soft tissue sarcoma to his active service. 3. Any current bilateral hearing loss is not shown to be related to the veteran's active service. 4. Any current degenerative joint disease of the lumbar spine was not shown during service or for years thereafter. CONCLUSIONS OF LAW 1. Any current soft tissue sarcoma was not incurred in or aggravated by active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Any current bilateral hearing loss was not incurred in or aggravated by active military service and the sensorineural type may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 3. The criteria for service connection for degenerative joint disease of the lumbar spine are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claim Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 his possession that pertains to the claim in accordance with the provisions of 38 C.F.R. § 3.159(b)(1). Letters from VA in September 2004, November 2004, March 2006, and November 2006 satisfy the statutory mandates. The veteran was informed of the type of evidence needed to support his service connection claim, mainly, proof of (a) an injury in service or disease that began in or was made worse during military service, or an event in service causing injury or disease; (b) a current physical or mental disability; and (c) a relationship between the current disability and an injury, disease, or event in service. The veteran was effectively informed to submit all relevant evidence in his possession. Also, he received notice of the evidence needed to substantiate his claims, and the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). VA also has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (setting forth Secretary's various duties to claimants). In this case, the veteran received VA examinations in December 2006. These were thorough in nature and adequate for the purposes of deciding the claim. All identified post service medical records relative to the issues on appeal have been requested or obtained. The Board therefore finds that the medical evidence of record is sufficient to resolve the appeal, and VA has met the duty to assist the veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that VA has fulfilled its VCAA duties to notify and to assist the veteran, and, thus, no additional evidence or notification is required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 392 (1993). Pertinent Laws and Regulations. Under the relevant regulations, 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. 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 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, 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). When a veteran served 90 days or more during a period of war on or after December 31, 1946, and sarcoma, sensorineural hearing loss, or degenerative joint disease of the lumbar spine, manifests to a degree of 10 percent or more within one year from the date of termination of such service, such disease process 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; 38 C.F.R. §§ 3.307, 3.309. Diseases associated with herbicide exposure under VA law include Kaposi's sarcoma. See 38 C.F.R. § 3.309(e). This disease shall be service connected if the veteran was exposed to an herbicide agent during active military, naval, or air service, and the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there was no record of such disease during service, provided further that the rebuttable provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. A disease associated with exposure to herbicide agents listed in Section 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during service, provided that the disease listed shall become manifest to a degree of 10 percent or more at any time after service...38 C.F.R. § 3.307(a)(6)(iii). A veteran who, during active military, naval, or air service served in the Republic of Vietnam during a 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 service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. The United States Court of Appeals for Veterans Claims (Court) has held that for service connection to be awarded there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). If the veteran fails to demonstrate any one element, denial of service connection will result. 38 U.S.C.A. § 5107 sets forth the standard of proof applied in decisions and claims for veterans benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert. v. Principi, 1 Vet. App. 49 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background and Analysis. The Board has thoroughly reviewed all the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail the evidence submitted by the evidence or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed here. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the veteran). The Board notes that as lay persons, neither the veteran nor his representative qualify to opine on matters requiring medical knowledge, such as whether there is a causal relationship of any sort between current disabilities and the veteran's active service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a lay person is generally not capable of opining on matters requiring medical knowledge). Soft Tissue Sarcoma. The veteran's military personnel records reveal that he served in Thailand from April 1968 to April 1969. He was a quarry machine operator with Company B of the 17 Engineer Battalion of the 2nd Armored Division. There was no service in Vietnam. The veteran did not receive any decorations, medals, badges, accommodations, citations, campaign ribbons, or any other recognition indicative of Vietnam service. See Haas v. Nicholson, 20 Vet. App. 257 (2006). There is no documentary or other supporting evidence that the veteran had service in Vietnam and it is not contended otherwise. The veteran asserts that he was in an area in Thailand close to the Vietnam border and Agent Orange was sprayed in the general area where he was assigned. However, when VA asked for documentation, a response from the U.S. Joint Services and Records Research Center (JSRRC) (formerly known as the USASCRUR) in April 2007 revealed that the facility was able to confirm that Agent Orange was tested at an isolated site known as Pren Bre in Thailand during the early and mid-1960's. It was further related that there were sites sprayed in Laos, but there was no way to determine the issue of overspray. The facility indicated that it has been unable to confirm that Agent Orange or any other herbicide was sprayed around military bases in Thailand, except for Pren Bre. Accordingly, the veteran is not presumed to have been exposed to Agent Orange during his service in the late 1960's. The United States Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. 98-542, Section 5, 98 Stat. 2724, 2727 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record presents no other basis upon which to establish entitlement to service connection for soft tissue sarcoma. Significantly, there is no evidence verifying that the veteran was exposed to Agent Orange during his service in Thailand. The service medical records are completely negative for findings or diagnoses of any sarcoma, and there is no medical evidence that any such disease process was manifested during the post service year or for years following service discharge. The first objective evidence of the presence of sarcoma came years following service discharge. The available post service medical records contain no competent evidence or opinion linking the veteran's current sarcoma to his active service. As noted above, as a lay person without the appropriate medical training and expertise, the veteran is not competent to render a probative opinion on a medical matter such as whether a medical relationship exists between his sarcoma and his active service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Competent evidence, and not mere assertions, is needed to support this claim. There is no competent evidence which links the veteran's current sarcoma to his active service. Accordingly, service connection for soft tissue sarcoma is not warranted. Under these circumstances, the Board concludes that the claim for service connection for soft tissue sarcoma to include as due to Agent Orange exposure, must be denied. Bilateral Hearing Loss. With regard to the claim for service connection for hearing loss, the available service medical records reveal that on one occasion in October 1967, the veteran complained of difficulty hearing because his ears were clogged with wax. They were cleaned out. There was no infection noted. There was no further reference to hearing difficulties during the remainder of service. At the time of discharge examination in November 1969 an audiogram study was entirely within normal limits. The post service medical evidence includes the report of an audiologic examination accorded the veteran by VA in December 2006. The veteran gave a history of 20 to 30 years' onset (1976 to 1986), and gave a timeframe of 10 to 15 years (1991 to 1996) during verbal interview. The examiner noted that both reported dates were post military service. The examiner stated that research indicated that previously noise-exposed ears were not sensitive to noise exposure and hearing loss due to noise did not progress in excess of what would be expected with the addition of age-related threshold shifts once the exposure to noise was discontinued. Current testing showed mild sensorineural hearing loss bilaterally. The examiner stated that it was her clinical opinion that the veteran's hearing loss was "not due to noise exposure during military service." The veteran has not provided any medical opinion in support of his claim. Therefore, the only medical opinion of record is against the claim. The Board notes that the record does not support the veteran's claim as there is no evidence of the presence of symptomatology outside of his own current assertions and there is no medical evidence of record indicating a causal connection between any current hearing loss and his active service many years ago. Degenerative Joint Disease of the Lumbar Spine. With regard to the claim for service connection for a back disability, a review of the service medical records reveals that on one occasion in March 1967, the veteran was seen for a complaint of back pain. There were no further complaints or findings indicative of the presence of a back disorder during the remainder of service, including at the time of separation examination in November 1969. At that time, clinical evaluation revealed a normal spine. The post service medical evidence is without reference to the presence of a back disorder until May 2002, a time many years following service discharge. Additional post service evidence includes the report of a joints examination of the veteran by VA in November 2006. The claims file was reviewed by the examiner. Current X-ray studies of the lumbar spine showed degenerative changes. The examiner opined that the veteran's back disability was "not caused by or a result of service." Again, the veteran has not provided any medical opinion in support of his claim. The only opinion of record is against the claim. The Board notes further that the record does not support the veteran's claim as there is no evidence of a continuity of back problems outside of his own current assertions for years following service and there is no medical evidence of record to make a causal connection between any current low back disorder and his active service. The absence of medical records documenting the presence of a disorder or for a prolonged period of time is a fact for the Board to consider in reaching a determination on the claim and weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board is aware of the veteran's assertions that he has a back disability that is attributable to his active service. However, as noted above, he is not competent to provide a nexus between his current back problems and his active service, as the evidence does not show that he has the requisite knowledge of medical principles that would allow him to render opinions regarding matters involving medical diagnosis or medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In view of the foregoing, the Board finds that the evidence is against the claim for service connection for a low back disability, however classified. ORDER Service connection for soft tissue sarcoma is denied. Service connection for bilateral hearing loss is denied. Service connection for degenerative joint changes of the lumbar spine is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs