Citation Nr: 0814804 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-38 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for cancer of the larynx, claimed as secondary to exposure to herbicides in service. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran INTRODUCTION The veteran served on active duty from November 1969 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for spindle cell sarcomatoid carcinoma of the larynx. In August 2007 2007, the veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. The veteran is not shown to have been exposed to herbicides while on active duty. 2. Cancer of the larynx was not diagnosed in service or for many years thereafter; and there is no competent evidence relating the current diagnosis to service, including any exposure to herbicides. CONCLUSION OF LAW Cancer of the larynx was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. In compliance with 38 C.F.R. § 3.159(b), the notification should also include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In this case, VA essentially satisfied the notification requirements of the VCAA by means of a letter dated in November 2004. The RO informed the veteran of the types of evidence needed in order to substantiate his claim for service connection; the division of responsibility between the veteran and VA for obtaining the required evidence; and the RO requested that the veteran provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 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.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Although the veteran did not receive such notice as to the disability rating and effective date elements, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file consist of veteran's service medical records, post-service medical records, and other pertinent documents discussed below. The Board has considered whether a VA examination was required in this case under the duty to assist provisions codified at 38 U.S.C.A. § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The duty to assist under 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) is triggered when it is necessary to obtain an examination to make a decision in the case. Factors to consider whether an examination is necessary include whether there is evidence of a current disability, and whether there is evidence that the disability may be associated with the veteran's military service but there is not sufficient medical evidence to make a decision on the claim. The evidence of record is such that the duty to obtain a medical examination is not triggered in this case. However, he has not provided any competent medical evidence suggesting he was exposed to herbicides in service, or otherwise indicating that his disability was incurred in or aggravated by service. There is also no lay evidence suggesting a continuity of symptomatology between his military service and the claimed disability. Thus, there is no requirement to obtain a VA medical examination in this case. See McLendon, 20 Vet. App. at 85- 86; see also Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (a veteran is required to show some causal connection between his disability and his military service). The Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). As will be discussed below, the veteran has asserted that he was exposed to herbicides along the DMZ in Korea. VA has established a procedure for verifying exposure to herbicides along the DMZ in Korea. See M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C. The Department of Defense has acknowledged that herbicides were used in Korea from April 1968 through July 1969 along an area of the DMZ, including a strip of land 151 miles long and up to 350 yards wide from the fence to North of the "civilian control line." The Department of Defense publication with respect to herbicide agent use in Korea during the stated period includes a list of specific military units. The VA Adjudication Manual also provides that if a veteran was assigned to a unit other than those listed by the Department of Defense and alleges service along the DMZ between April 1968 and July 1969, the Center for Unit Records Research (CURR) must be contacted for verification of the location of the veteran's unit. The Board notes, however, that the veteran served in Korea from October 1970 to November 1971. Thus, he did not serve during the period in which herbicides were used along the DMZ, and further development is not warranted under the Manual provisions. In sum, the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Also, the actions taken by VA have essentially cured or mooted any defect in the VCAA notice. The purpose behind the notice requirement has been satisfied, because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Relevant law and regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, if a veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, and if a malignant tumor became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, this condition would be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset), 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). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda 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). Notwithstanding the provisions of §§ 3.307, 3.309, 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 an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The veteran asserts that he incurred cancer of the larynx due to herbicide exposure in service. The Board notes that the veteran has limited his claim of exposure to herbicides to exposure in Korea, obviating the need for a discussion of exposure elsewhere, to include the Republic of Vietnam. Initially, the record shows that the veteran does have a current disability in that he was diagnosed with spindle cell sarcomatoid carcinoma of the larynx in June 2004, and cancer of the larynx is listed as a presumptive disease listed at 38 C.F.R. § 3.309(e). However, there is no record that the veteran was exposed to herbicides during his service as a result of handling equipment or as a result of being stationed near the DMZ. Regarding the veteran's contention that he was exposed to herbicides in service, the Board notes that individual claimants are considered competent to testify to matters that "lends [themselves] to observation by a lay witness." See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). In this instance, the veteran is not indicating that he observed or witnessed the use of herbicides, or that he observed herbicides in or around where he was stationed. Although he did discuss loading containers that were being sent to Vietnam, he admitted to not knowing the content of those containers, and has not otherwise describing observing the use of herbicides. Instead, he is merely assuming that herbicides remained in the area because they have been recognized by the Department of Defense as being used in Korea from April 1968 through July 1969 along the DMZ. However, even assuming that he was present in the specific strip of land described by the Department of Defense, he did not arrive in Korea until October 1970, which is approximately 15 months later. The Board believes that an assumption that herbcides were still presence in the area is beyond the competence of the veteran as a lay person. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, his testimony cannot serve to establish that exposure to herbicides actually occurred. As the evidence does not show that he was exposed to herbicides in service, the veteran's cancer cannot be presumed to have been incurred in service under the provisions of 38 C.F.R. § 3.309(e). Thus, the next issue is whether there is evidence of any in- service incurrence of that disability. The service medical records are negative for any findings of carcinoma or other malignant tumor, and the veteran has never contended that the disability was actually present in service. There is also no medical evidence otherwise suggesting a relationship to service. The Board notes that treatment records related to his cancer do note a history of exposure to Agent Orange. However, those notations appear to have been based solely on the veteran's report of exposure in Korea. There is no actual medical opinion of record relating his disability to herbicides or otherwise relating it to service, and there is certainly no medical opinion finding a relationship between the claimed disability and the manner of residual exposure that has been described by the veteran. As noted, the veteran's assumption that herbcides were still presence in the area in which he served in beyond his competence. Similarly, the relationship between the claimed disability and the manner of residual exposure that has been described by the veteran is also not a matter for an individual without medical expertise. See Espiritu, supra. In summary, for the reasons and bases set forth above, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for cancer of the larynx. As the preponderance of the evidence is against the claim, the benefit- of-the-doubt rule does not apply, and the claim must be denied. ORDER Entitlement to service connection for cancer of the larynx, claimed as secondary to exposure to herbicides in service, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs