Citation Nr: 1044952	
Decision Date: 12/01/10    Archive Date: 12/10/10

DOCKET NO.  09-32 335	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New 
York


THE ISSUES

1.  Entitlement to service connection for a heart condition.

2.  Entitlement to service connection for a kidney condition.

3.  Entitlement to service connection for a right jaw line 
squamous cell carcinoma.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Associate Counsel




INTRODUCTION

The Veteran served on active duty from April 1968 to March 1970, 
including service in the Republic of Vietnam.

This matter has come before the Board of Veterans' Appeals 
(Board) on appeal from a June 2009 rating decision of the 
Buffalo, New York, Department of Veterans Affairs (VA) Regional 
Office (RO).

In August 2010, the Board remanded this case for further 
development, including VA medical examinations.

Please note this appeal has been advanced on the Board's docket 
pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the 
Vietnam Era.

2.  The Veteran was diagnosed with coronary artery disease.

3.  The evidence of record does not establish that the Veteran 
developed a kidney condition in service or within one year of his 
separation, or that this condition is causally related to his 
military service.

4.  The evidence of record does not establish that the Veteran 
developed right jaw line squamous cell carcinoma in service, or 
that this condition is causally related to his military service.




CONCLUSION OF LAW

1.  Service connection for coronary artery disease is presumed.  
38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 
3.303, 3.307, 3.309 (2010).

2.  Kidney condition was not incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002); 38 
C.F.R. §§ 3.303, 3.307, 3.309 (2010).

3.  Right jaw line squamous cell carcinoma was not incurred in or 
aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1116, 5107 
(West 2002); 38 C.F.R. § 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), codified at 38 
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into 
law on November 9, 2000.  Implementing regulations were created, 
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326.

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and 
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 about the information and evidence not of record (1) 
that is necessary to substantiate the claim; (2) that VA will 
seek to provide; and (3) that the claimant is expected to 
provide. 38 C.F.R. § 3.159(b)(1).  These notice requirements 
apply to all five elements of a service connection claim, 
including disability ratings and effective dates.  Dingess v. 
Nicholson, 19 Vet. App. 473, 484 (2006). This notice must be 
provided prior to the initial decision on a claim for VA 
benefits.  Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, 
if VCAA notice is provided after the initial decision, such a 
timing error can be cured by a subsequent content-complying 
notice and readjudication of the claim, as in a Statement of the 
Case (SOC) or Supplemental Statement of the Case (SSOC).  
Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006).

In a February 2009 notice letter, the Veteran was notified of 
what information and evidence was needed to substantiate his 
claim, as well as what information and evidence must be submitted 
by the claimant, what information and evidence would be obtained 
by VA and how disability ratings and effective dates were 
assigned.

The August 2010 Board remand instructed the RO/AMC to schedule 
the Veteran for a VA examination for each of the disabilities 
claimed.  In compliance with that remand, the RO scheduled and 
the Veteran underwent a VA examination in August 2010.  After 
providing all examination findings, the VA examiner discussed the 
findings of the Center for Disease Control's Agency for Toxic 
Substances and Disease Registry on health problems related to 
exposure to trichloroethylene (TCE), tetrachloroethylene (PCE), 
benzene, and vinyl chloride (VC) before offering his medical 
opinions.  Thus, VA has complied with the August 2010 remand 
instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

Regarding the duty to assist, the Board is not aware of the 
existence of additional relevant evidence in connection with the 
Veteran's claims that VA has not sought.  VA treatment records, 
private treatment records, VA medical examination results, and 
statements of the Veteran and his representative have been 
associated with the record.  The Veteran has been accorded ample 
opportunity to present evidence and argument in support of his 
appeal.  The Board finds that VA has obtained, or made reasonable 
efforts to obtain, all evidence that might be relevant to the 
issues on appeal, and that VA has satisfied the duty to assist.

Heart Condition

The Veteran's personnel records show service in the Republic of 
Vietnam.  See e.g., Sea and Air Travel - Embarkation Slips.  As 
the Veteran served in the Republic of Vietnam during the Vietnam 
era and is therefore presumed to have been exposed to certain 
herbicide agents, such as Agent Orange.  See 38 U.S.C.A. § 1116 
(f); 38 C.F.R. § 3.307(a)(6)(iii).  Effective August 31, 2010, VA 
amended 38 C.F.R. § 3.309(e) to add ischemic heart disease 
(including coronary artery disease) to the list of diseases 
associated with exposure to certain herbicide agents.  VA records 
and the August 2010 VA examiner diagnosed the Veteran with 
coronary artery disease.  Therefore, entitlement to service 
connection for coronary artery disease is presumed. 38 C.F.R. §§ 
3.307, 3.309.

Kidney Condition

The Veteran is seeking service connection for a kidney disease.  
VA and private treatment records contain a diagnosis of renal 
failure and renal disease.  The August 2010 VA examiner 
diagnosed the Veteran with end stage renal failure.

The Board notes that neither renal disease nor renal failure are 
listed under 38 C.F.R. § 3.309(e) as a disease for which service 
connection based on the theory of Agent Orange exposure can be 
presumed.  The Secretary of Veterans Affairs has determined that 
there is no presumptive 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. 341-346 
(1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. 
Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 
1999).  Therefore, presumptive service connection based on 
exposure to Agent Orange does not apply.  

The Board will therefore consider if direct service connection is 
warranted; that is, if service connection is warranted as being 
incurred in or aggravated by active duty - a task of tracing 
causation to a condition or event during service.  Combee v. 
Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

Direct service connection requires competent and credible 
evidence of a current disability.  Davidson v. Shinseki, 581 F.3d 
1313 (Fed. Cir. 2009).  As noted above, the Veteran has been 
diagnosed with renal failure and renal disease.  Thus, the 
current disability requirement is met.

The second requirement for direct service connection is competent 
and credible evidence of an in-service occurrence or aggravation 
of a disease or injury.  Davidson, 581 F.3d 1313.  The Veteran's 
service treatment records do not complaints of or treatment for a 
kidney condition.  Likewise, the record does not contain 
evidence suggesting a diagnosis of nephritis within one year of 
the Veteran's separation from service.  However, the record does 
show that the Veteran served in Camp Lejeune from June 1968 to 
October 1968 which is within the timeframe that contaminated well 
fields were supplying drinking water to multiple housing areas in 
Camp Lejeune.  Likewise, the Veteran served in the Republic of 
Vietnam during the Vietnam Era and is therefore presumed exposed 
to herbicides.  See 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 
3.307(a)(6)(iii).  Thus, the Veteran is presumed exposed to some 
contaminated water at Camp Lejeune and to herbicides in Vietnam.  
The in-service injury requirement is satisfied.

The third and final requirement for direct service connection is 
a nexus between the Veteran's current disability and his exposure 
to contaminated water at Camp Lejeune or his presumed exposure to 
herbicides in Vietnam.  Id.  The record does not contain a 
medical nexus opinion linking the Veteran's kidney condition to 
either his exposure to contaminated water or his exposure to 
herbicides in Vietnam.  In August 2010, the Veteran underwent a 
VA examination in conjunction with this claim.  That examiner 
reviewed the Veteran's claims file and findings of the Center for 
Disease Control's Agency for Toxic Substances and Disease 
Registry (ATSDR) on health problems related to exposure to 
trichloroethylene (TCE), tetrachloroethylene (PCE), benzene, and 
vinyl chloride (VC).  The examiner opined that the Veteran's end 
stage renal failure was less likely as not caused by or the 
result of his service at Camp Lejeune.  Instead, the examiner 
found that the Veteran's current end stage renal failure was most 
likely caused by or the result of his history of bladder outlet 
obstruction and hydronephrosis.  Thus, the record does not 
contain evidence of a positive medical nexus between the 
Veteran's current kidney condition and his military service.  

Alternately, service connection may be established by a 
continuity of symptomatology, not necessarily continuity of 
treatment, between a current disorder and service.  Wilson v. 
Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303.  
In this case, the first evidence of a kidney condition post-
service is acute renal failure in January 2002, more than three 
decades after the Veteran left military service.  The Veteran 
does not allege an earlier onset than January 2002.  Therefore, 
the nexus requirement of direct service connection is not 
satisfied and the claim fails on this basis.

In short, for reasons expressed immediately above, the Board 
concludes that the weight of the evidence is against the 
Veteran's claim.  In reaching this conclusion, the Board has 
considered the applicability of the benefit-of-the-doubt 
doctrine.  However, as the preponderance of the evidence is 
against the Veteran's claim, that doctrine is not applicable in 
the current appeal.  38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 
Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 
(1996).  For these reasons and bases, the Board finds that the 
preponderance of the evidence is against the Veteran's claim of 
entitlement to service connection for a kidney condition.  Thus, 
the appeal must be denied.

Skin Condition

Private treatment records from January 2009 and the August 2010 
VA examination results contain a diagnosis of squamous cell 
carcinoma of the skin.  Again, this is not a disease for which 
service connection based on the theory of Agent Orange exposure 
can be presumed under 38 C.F.R. § 3.309(e).  The Board will 
therefore consider if direct service connection is warranted.  
Combee, 34 F.3d 1039, 1042.

With regard to the current disability requirement, the Board 
notes that private treatment records from January 2009 and the 
August 2010 VA examination results contain a diagnosis of 
squamous cell carcinoma of the skin.  See Davidson, 581 F.3d 
1313.  Thus, the current disability requirement is met.

Again, the second requirement for direct service connection is 
competent and credible evidence of an in-service occurrence or 
aggravation of a disease or injury.  Davidson, 581 F.3d 1313.  
The Veteran's service treatment records do not complaints of or 
treatment for a skin condition.  However, the Veteran's presumed 
exposed to contaminated water at Camp Lejeune and to herbicides 
in Vietnam are sufficient to satisfy the in-service injury 
requirement.

The first evidence of squamous cell carcinoma is a January 2009 
biopsy report, nearly four decades after the Veteran left 
military service.  There is no evidence of earlier treatment in 
the record and the Veteran does not allege a continuity of 
symptomatology since his military service.  Cf. Wilson, 2 Vet. 
App. 19; see also 38 C.F.R. § 3.303.  Therefore evidence of a 
nexus between the Veteran's current squamous cell carcinoma and 
his in-service exposure to contaminated water and/or herbicides 
is needed.  See Davidson, 581 F.3d 1313.  In August 2010, the 
Veteran underwent a VA examination in conjunction with this 
claim.  As noted above, that examiner reviewed the Veteran's 
claims file and findings of the ATSDR.  The examiner opined that 
the Veteran's current squamous cell carcinoma was less likely as 
not caused by or the result of his service at Camp Lejeune.  The 
examiner noted that the Veteran was "well sun tanned" and "as 
solar exposure is highly correlated with squamous cell carcinoma, 
his current condition is as least as likely as not caused by or 
the result of long term sun exposure."  

Additionally, as stated above, squamous cell carcinoma is not one 
of the conditions listed under 38 C.F.R. § 3.309(e).  The 
Secretary specifically determined that skin cancers did not 
warrant presumptive service connection based on exposure to 
herbicides in the Republic of Vietnam because: 

[t]aking into account the available evidence and NAS' 
analysis, the Secretary has found that the credible 
evidence against an association between herbicide 
exposure and basal-cell and squamous cell cancers 
outweighs the credible evidence for such an 
association.  

See Notice, 72 Fed. Reg. 32,395-407 (2007); see also Notice, 68 
Fed. Reg. 27,630-41 (2003); and Notice, 67 Fed. Reg. 42,600-8 
(2002).  Specifically, in the Update 2004 to the July 1993 
report entitled "Veterans and Agent Orange: Health Effects of 
Herbicides Used in Vietnam" (VAO), NAS concluded that there was 
no information contained in the additional research reviewed for 
that update to change its conclusion that the medical research 
contained inadequate and insufficient evidence to establish a 
link between herbicide exposure and skin cancer.  The record does 
not contain a positive medical nexus opinion between the 
Veteran's squamous cell carcinoma and either his exposure to 
contaminated water or herbicides.   Therefore, the nexus 
requirement of direct service connection is not satisfied and the 
claim fails on this basis.

Based on the above, the Board concludes that the weight of the 
evidence is against the Veteran's claim.  As the preponderance of 
the evidence is against the Veteran's claim, the benefit-of-the-
doubt doctrine is not applicable.  38 U.S.C.A. 5107(b); Gilbert 
v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. 
App. 518, 519 (1996).  Thus, the Board finds that the 
preponderance of the evidence is against the Veteran's claim of 
entitlement to service connection for squamous cell carcinoma 
and, therefore, the appeal must be denied.


ORDER

Entitlement to service connection for a coronary artery disease 
is granted.

Entitlement to service connection for a kidney condition is 
denied.

Entitlement to service connection for a right jaw line squamous 
cell carcinoma is denied.




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs