Citation Nr: 1113167	
Decision Date: 04/04/11    Archive Date: 04/13/11

DOCKET NO.  09-50 836	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUE

Entitlement to service connection for squamous cell carcinoma, basal tongue with nodal metastases to the right neck, including as secondary to herbicide and asbestos exposure.


ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 to September 1969.  He service in Vietnam from July 1968 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, that denied the above claim.

FINDING OF FACT

Squamous cell carcinoma, basal tongue with nodal metastases to the right neck did not have its onset during active service or result from disease or injury in service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for squamous cell carcinoma, basal tongue with nodal metastases to the right neck have not been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2010).


REASONS AND BASES FOR FINDING 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).

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.

Post-service medical treatment records show that the Veteran had been diagnosed as having squamous cell carcinoma.  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.  

The Veteran contends that his squamous cell carcinoma was due to exposure to asbestos or herbicides during service.  After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for squamous cell carcinoma.  

As a preliminary matter, the Board notes that there is no specific statutory or regulatory guidance with regard to claims of service connection for asbestos-related diseases.  VA has issued guidelines for considering asbestos compensation claims.  See VA Adjudication Procedure Manual, M21-1MR, part IV.ii.2.C.9.  VA must analyze claims of service connection for asbestos-related disabilities under the administrative protocols established by these guidelines.  See Ennis v. Brown, 4 Vet. App. 523 (1993).  Provisions in former paragraph 7.68 of VBA Manual M21- 1, Part VI (the predecessor to the current M21-1MR asbestos guidelines), did not create a presumption of exposure to asbestos.  Rather, medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service.  VA must ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure.  Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). 

Under applicable criteria, VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran.  VA Manual 21-1, Part VI, paragraph 7.21, rescinded by M21-1MR, Parts II, IV, and V (December 13, 2005); VAOPGCPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000); see also Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997).

The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a).  Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation.  Id. at Subsection (a).  The Manual also lists some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  Id. at Subsection (f).  

Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed.  Id. at Subsection (b).  Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos related diseases/abnormalities: fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate).  Id. at Subsection (b).  

As to disorders related to asbestos exposure, the absence of symptomatology during service or for many years following separation does not preclude the eventual development of the disease.  The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease).  The extent and duration of exposure to asbestos is not a factor for consideration.  Id. at Subsection (d).   

The Veteran claims his squamous cell carcinoma was caused by asbestos exposure while in serving in Vietnam.  He also stated that he served in the field and on truck convoys while in Vietnam.  The Veteran's personnel records show that he served in Vietnam and received training for communication center specification.  There is no documentation or objective evidence of record showing that the Veteran had a military occupation that exposed him to asbestos.  

With regard to the current disability, the evidence of record shows that the Veteran currently suffers from squamous cell carcinoma.  He was diagnosed as having squamous cell carcinoma in July 2006.  There is no indication in his post-service medical records that the Veteran's squamous cell carcinoma was due to exposure to asbestos.  Therefore, as the record lacks evidence that the Veteran was exposed to asbestos during service or that his current squamous cell carcinoma is related to asbestos exposure, his claim for squamous cell carcinoma secondary to exposure to asbestos is denied.  

The Veteran also claims that his squamous cell carcinoma was caused by exposure to Agent Orange while he was in Vietnam.  A veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents.  38 C.F.R. § 3.309(e).  Regulations pertaining to Agent Orange exposure have expanded to include all herbicides used in Vietnam.  Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange or similar herbicide.  38 U.S.C. § 1116(f); 38 C.F.R. § 3.313a.  Under the authority granted by the Agent Orange Act of 1991, the Secretary of VA specifically determines, based on reports of the National Academy of Sciences (NAS) and other medical and scientific studies, diseases that may be presumed to have been caused by exposure to herbicidal agents.  

Although the Veteran did serve in Vietnam, and is therefore presumed to have been exposed to Agent Orange, the Veteran's diagnosed squamous cell carcinoma is not a presumptive disability based on exposure to Agent Orange.  The Secretary of the Department of Veterans Affairs has determined that there is no 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 61 Fed. Reg. 57586-57589 (1996).  Furthermore, there is no competent medical evidence of record showing that Agent Orange caused the Veteran's squamous cell carcinoma.  Thus, service connection, as evaluated under the regulations governing presumptive service connection based on exposure to Agent Orange, is not warranted.

Finally, there is no competent evidence which shows that the Veteran's diagnosed squamous cell carcinoma was incurred during service on a direct basis.  As stated above, the first medical evidence of any treatment for squamous cell carcinoma was dated in July 2006.  Prior to that date, the record is silent of any indication that the Veteran had squamous cell carcinoma.  This evidence comes approximately 37 years after service, and this lengthy period between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  

Furthermore, service treatment records are negative for any complaints, treatment, or findings of squamous cell carcinoma and the Veteran has not reported continuity of symptomatology since service.  There is also no competent medical evidence of record relating his squamous cell carcinoma to any in-service disease or injury.  The Board therefore finds that the preponderance of the evidence is against the claim of entitlement to service connection for squamous cell carcinoma during service.  

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 for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The RO provided the appellant pre-adjudication notice by letters dated in December 2008.

VA has obtained service treatment records, and assisted the appellant in obtaining evidence.  VA need not obtain an examination as the evidentiary record does not show that the Veteran's current squamous cell carcinoma disability may be associated with an established event, injury, or disease in service; 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 appellant's claims file; and the appellant has not contended otherwise.  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.


ORDER

Service connection for squamous cell carcinoma, basal tongue with nodal metastases to the right neck, including as secondary to herbicide and asbestos exposure, is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs