Citation Nr: 1127763	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  10-08 063	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for laryngeal cancer.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1951 to September 1981.

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

In June 2010, the Board remanded this case for further development.

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 evidence of record establishes that the Veteran served during the Vietnam Era, but not that he had service in the Republic of Vietnam; and thus exposure to herbicide agents in service is not presumed.

2.  Actual exposure to herbicide agents during service in Thailand has not been shown.


CONCLUSION OF LAW

Laryngeal cancer was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

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; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA 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).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in May 2009 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter.  The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

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 treatment 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, the service treatment records are silent as to any complaints or treatment for laryngeal cancer.  Moreover, the post-service evidence does not indicate any current complaints or treatment referable to laryngeal cancer until several years following separation from service.  Furthermore, the record contains no competent evidence suggesting a causal relationship between the current disability and active service.  The record is also absent evidence, to include credible lay testimony, indicating continuity of symptomatology.  For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, the Veteran's statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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).

Analysis

VA treatment records show a diagnosis of laryngeal cancer.  As a respiratory cancer, laryngeal cancer is among the conditions for which service connection can be presumed if the Veteran is found to have been exposed to an herbicide agent. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309.  Thus, the Board will first consider whether the evidence shows exposure to an herbicide agent.

The Veteran believes that his laryngeal cancer was caused by exposure to herbicides during his military service.  In this regard, his service personnel records do not show that he was stationed in the Republic of Vietnam.  Rather, such records reflect foreign service in Thailand.  

The Veteran has suggested three possible avenues of in-service exposure.  First, he has alleged that he was exposed to herbicides while installing communications equipment at newly prepared sites throughout Thailand as part of the site preparation.  Specifically, he states that the vegetation was sprayed in the areas where equipment was to be set up.  Second, he has alleged exposure to herbicide agents due to his proximity to air craft that may also have flown to Vietnam and come into contact with herbicides there.  Finally, the Veteran alleges that he landed in Vietnam on his way to Thailand in October 1968.  

With regard to the first contention of potential exposure, the Veteran's service personnel record, including performance review, confirm that he performed temporary duties within Thailand.  Under 38 C.F.R. § 3.307(a)(6), the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  In an undated memorandum on the use of herbicides in Thailand, the Veterans Benefits Administration explained the difference between the tactical herbicides contemplated by this regulation, like Agent Orange, and commercial herbicides.  While the Veteran is competent to provide lay testimony regarding his exposure to recently defoliated land, he is not competent to differentiate between the types of herbicides used to accomplish this defoliation.  As such, the Board must rely on the information provided by the Department of Defense, which states that tactical herbicide testing in Thailand was limited to the Panburi Military Reservation and was not near any U.S. military installation or Royal Thai Air Force Base.  

The Veteran has also submitted a report on Project Checo in Southeast Asia, which notes that permission to use herbicides at Korat Royal Thai Air Force Base (KRTAFB) was granted by the Embassy in 1972.  It is unclear to which type of herbicides this report is referring, however, as the Veteran had left KRTAFB nearly three years earlier.  Thus, the possibility of an herbicide agent as defined by 38 C.F.R. § 3.307(a)(6) being used at KRTAFB in 1972 is irrelevant to this Veteran's claim.  As such, the evidence is against finding that the Veteran was exposed to a herbicide agent, as defined by 38 C.F.R. § 3.307(a)(6), during his service in Thailand.

With regard to the second avenue of potential exposure, the Veteran's claim that he came into contact with aircraft that likely had been in contaminated areas within the Republic of Vietnam is extremely tenuous.  The Veteran has not provided any evidence beyond his initial allegation that such cross-contamination might be possible.  Absent affirmative evidence that this was the case, exposure to herbicide agents through contact with potentially contaminated aircraft cannot be conceded.

Finally, with regard to the third avenue of potential exposure, a showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam.  Exposure to an herbicide agent is presumed for veterans who had active service in the Republic of Vietnam during the Vietnam Era (from January 9, 1962 to May 7, 1975).  38 U.S.C.A. § 1116(f).  In this case, the Veteran's period of service includes the entirety of the Vietnam Era, therefore the question becomes whether he served in-country within the Republic of Vietnam during that time.  See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam).

No service in or visitation to the Republic of Vietnam is noted in the Veteran's service records.  To the extent that the Veteran was stationed in Southeast Asia during the Vietnam Era, he served in Thailand from November 1968 to November 1969.  While he was awarded the Republic of Vietnam Gallantry Cross, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal, the criteria for receipt of these awards do not include being physically present in the Republic of Vietnam and therefore these awards in and of themselves cannot establish qualifying service in the Republic of Vietnam.  The Veteran's service at Korat RTAFB base in Thailand would qualify him for these medals without ever setting foot within the borders of the Republic of Vietnam.  

The Veteran was stationed in Texas both immediately before and immediately after this service in Thailand.  In his June 2009 statement, the Veteran stated that he travelled from the U.S. to Thailand via Alaska, Okinawa, Saigon, Bangkok, and finally Korat.  In his January 2010 statement, the Veteran stated that he disembarked in Saigon for a meal.  In his January 2011 statement, the Veteran again states that he landed in Tan Son Nuht Air Force Base in Vietnam on his way to Thailand in October 1968.  The details of his travel between the United States and Thailand are not disclosed in his personnel records.  Pursuant to the Board's June 2010 remand, VA searched the Veteran's service personnel records for evidence of service or visitation in the Republic of Vietnam.  No such evidence was found and the Veteran's personnel records were associated with the claims file.  Thus VA has complied with the June 2010 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).  Specifically, these records do not confirm the Veteran's presence within the Republic of Vietnam en route to Thailand.  Therefore, the Board finds that the record does not establish visitation to the Republic of Vietnam during service. 

Furthermore, the Veteran has not submitted evidence of actual exposure to an herbicide agent outside of the presumption.  Thus exposure to an herbicide agent is not found and the presumption does not apply. 

Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claims still can be reviewed to determine if service connection can be established on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). 

To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability.  See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

As noted above, the Veteran is currently diagnosed with laryngeal cancer.  Thus, the current disability requirement is satisfied. 

The Veteran's service treatment records show no diagnosis of or treatment for laryngeal cancer.  Likewise, as discussed above, exposure to an herbicide agent has not been shown.  Therefore, the in-service occurrence or aggravation of a disease or injury requirement has not been satisfied. 

Alternately, service connection can be established upon a finding of continuity of symptomatology.  38 C.F.R. § 3.303(b).  As reflected in the record, a diagnosis was made in April 2009.  A March 2009 treatment record noted that symptoms of dry sore throat first arose in January 2009.  Earlier medical evidence submitted in conjunction with other disability claims made no reference to any existing laryngeal cancer or symptoms thereof.  Reference was made to treatment to combat the Veteran's tobacco addiction.  For these reasons, continuity of symptomatology dating back to service has not been shown. 

In sum, the preponderance of the evidence is against the claims of entitlement to service connection for laryngeal cancer.  The benefit sought on appeal is accordingly denied since there is no reasonable doubt to resolve in the Veteran's favor.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 


ORDER

Entitlement to service connection for laryngeal cancer is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs