Citation Nr: 1229338 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 09-11 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for adenocarcinoma, status-post left upper lobectomy, claimed as lung cancer, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active duty from June 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the Veteran's claim of entitlement to service connection for adenocarcinoma, status-post left upper lobectomy, claimed as lung cancer, to include as secondary to Agent Orange exposure. In August 2008, the Veteran's claim, based on herbicide exposure, was stayed pending the outcome of Haas v. Nicholson, 20 Vet. App. 257 (2006). Haas has been decided, the stay has been lifted, and the Board will proceed with an adjudication of the appeal. See Haas v. Peake, 525 F.3d 1168, 1187-94 (Fed. Cir. 2008). In September 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ), seated at the RO in St. Petersburg, Florida. At that time, the Veteran submitted additional evidence in support of his claim, with a waiver of Agency of Original Jurisdiction (AOJ) consideration of the same. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran does not have active service on the landmass or in the inland waters of the Republic of Vietnam and is thus not presumed exposed to herbicides, including Agent Orange, nor is there probative evidence of exposure to such. 2. Adenocarcinoma, status-post left upper lobectomy, was not manifest in active service or within one year of separation from active service, and is not attributable to active service, including claimed herbicide exposure. CONCLUSION OF LAW Adenocarcinoma, status-post left upper lobectomy, was not incurred in or aggravated by active service, including claimed herbicide exposure, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1133 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA notice requirements were satisfied by virtue of January 2006 and March 2006 letters sent to the Veteran prior to initial unfavorable decision on appeal. These letters informed him of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. In the March 2006 letter, VA advised the Veteran as to how disability ratings and effective dates are assigned. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran 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. The claims folder contains service treatment records, private treatment records, and the Veteran's contentions. The Veteran was afforded the opportunity to testify at a personal hearing before the Board. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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); see also Quartuccio, 16 Vet. App. 183. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to this claim. However, the Board finds that a VA examination is not necessary in order to decide this claim. In McLendon v. Nicholson, 20 Vet App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. The Veteran's service treatment records are negative for any complaints or treatment suggesting lung cancer. Further, the Board finds that there is no probative lay or medical evidence suggesting that lung cancer had its onset in service, and no probative evidence otherwise showing that such is related to any incident of service, to include any herbicide exposure. As will be discussed below, the possibility of a relationship between his service and lung cancer, diagnosed decades thereafter, is beyond the competence of the Veteran, as a lay person. Thus, his own contentions in that regard are not probative, and cannot serve to suggest an association to service so as to satisfy the requirements of McLendon. Accordingly, a VA examination is not warranted. Further, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2011) requires that the party who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2010 hearing, the VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the service connection claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1313, at 1316; Jandreau, 492 F.3d 1372, at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, at 511, aff'd per curiam, 78 F.3d 604. The Veteran is currently diagnosed with adenocarcinoma, status-post left upper lobectomy. His primary contention is that such disability is due to herbicide exposure in Vietnam. In essence, he asserts that he is entitled to the presumptions regarding herbicide exposed-Veterans based on his active service aboard the U.S.S. Bausell during the Vietnam War. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. In order for presumptive service connection to be granted, the evidence must demonstrate that the Veteran was present at some point on the landmass or inland waters of the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Haas, 525 F.3d 1168. The Federal Circuit in Haas found that VA's interpretation as requiring physical presence within Vietnam, or the territorial waters of Vietnam in order to be entitled to the presumption of herbicide exposure is not plainly erroneous or inconsistent with the language of 38 C.F.R. § 3.307(a)(6)(iii). Haas, 525 F.3d 1168. Service on a deep-water naval vessel in waters offshore of the Republic of Vietnam is not qualifying service in the Republic of Vietnam for purposes of this presumption. Id. at 1193-94; VAOPGCPREC 27-97, 62 Fed. Reg. 63604 (1997). Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). If a Veteran was exposed to an herbicide agent during active military service, a number of diseases, specifically including the Veteran's lung cancer, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). The National Personnel Records Center (NPRC), in a January 2006 response to the RO's inquiry, indicated that it was unable to determine whether the Veteran had in-country service in the Republic of Vietnam, but added that the Veteran served aboard a ship that sailed in the waters of Vietnam, the U.S.S. Bausell (DD 845). The Veteran's service personnel records show that the Veteran was the recipient of a National Defense Service Medal, for Vietnam. Although his service made him eligible to receive this medal, this fact, in and of itself, is not determinative of Vietnam service. Further, in reference to the Vietnam Service Medal, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed. The Veteran himself testified at his September 2010 Board hearing, and in written statements submitted during the course of the appeal, that he never actually set foot in Vietnam. Further, and most significantly, during such testimony and written statements, the Veteran asserted that he was aboard a vessel in the waters offshore Vietnam. He did not assert that he was involved in missions aboard the U.S.S. Bausell in the inland waters of Vietnam. He gave clear and thorough testimony as to a number of incidents aboard the U.S.S. Bausell, in the Gulf of Tonkin. He described his service to include running the ship right up to shore, so close that the ship would sit on sand for long periods of time while they supported ground troops. He reported that his ship was so close to the shores of Vietnam that his ship picked up enemy soldiers that had tried to swim away after battles with the ground troops. He reported that his cruises aboard the U.S.S. Bausell placed him within 300 feet of the shore of Vietnam. He reported that in 1965, he was aboard the U.S.S. Bausell, just outside of the Mekong Delta, supporting ground troops and operating with "swift boats" that came out of the Delta. He reported that he saw napalm in the air, and clouds of what he considered to be Agent Orange, off the coast of Vietnam, drifting to his boat. He supplemented the record with articles about the U.S.S. Bausell's service and photographs of himself aboard ship, with the Vietnam coastline in the background. In a February 2007 response to the RO's inquiry, the U.S. Armed Services Center for Unit Records Research (CURR) reported the U.S.S. Bausell's history similar to that reported by the Veteran. The Veteran is competent to describe his service and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, at 470; (1994); Dalton, 21 Vet. App. 23, at 38. It is clear to the Board that the Veteran asserts that his service aboard the U.S.S. Bausell, in the official waters of Vietnam, should be given the same presumption that service on the landmass or in the inland waters of Vietnam is given, based on the proximity to the shores of Vietnam where herbicides were used. However, the Board is bound by the current regulations and as discussed, the current regulations require presence at some point on the landmass or inland waters of the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Haas, 525 F.3d 1168. While the Veteran has offered probative evidence that he was very close to the landmass of Vietnam, by his own testimony, he asserts that he was either in the Gulf of Tonkin or just outside the Mekong Delta and only off the shores of Vietnam, and not on the landmass or in the inland waters. Accordingly, there is no evidence that the Veteran has service on the landmass or in the inland waters of Vietnam, and exposure to herbicides during service may not be presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the Board is also cognizant of the Veteran's receipt of hostile fire pay in 1966. Nonetheless, in this regard, there is no evidence of exposure to herbicides during service and there is no competent evidence of record demonstrating that the Veteran's lung cancer is in any way related to service or any event of service. See generally, 38 U.S.C.A. § 1154(b) (West 2002). While exposure to such may not be presumed, as discussed at length immediately above, the Board has considered whether there is evidence of exposure to herbicides, without considering the regulatory presumptions. The Veteran has described seeing napalm in the air, and clouds of what he considered to be Agent Orange, off the coast of Vietnam, drifting to his boat. Again, the Veteran is competent to describe his service and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, at 470; (1994); Dalton, 21 Vet. App. 23, at 38. However, there is no evidence that the Veteran has the military or environmental knowledge or skill to identity any particulates, smoke, or clouds that he saw in the air as Agent Orange, or any other herbicide. Thus, the Board finds that the Veteran is not competent to assert that he was exposed to Agent Organe, or any other herbicide, during service and his statements are of no probative value. The Board has also considered the Veteran's lay statements, along with his circumstances and events of service. In this regard, review of the record shows that there is no evidence of lung cancer during service. The Veteran's service treatment records show no complaints, diagnoses, or treatment for lung cancer and the Veteran does not contend otherwise. Additionally, lung cancer is not shown within the first post-service year, nor is it contended otherwise. In fact, the Veteran testified that he was first diagnosed with lung cancer in approximately 2002, which is 36 years following his service discharge. There is also no lay or medical evidence that associates his lung cancer to any incident of service. Thus, service connection is not warranted on a direct basis. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record reflects that the Veteran is diagnosed with lung cancer, it does not contain competent evidence relating such disability to any injury or disease in service, or to claimed herbicide exposure. The Board has duly considered the Veteran's statements that his lung cancer is related to service, to include claimed herbicide exposure therein. However, as discussed, the Board finds that the etiology of his lung cancer is far too complex a medical question to lend itself to the opinion of a layperson. See Jandreau, 492 F.3d 1372 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In light of the foregoing reasons and bases, the Board finds that the preponderance of evidence is against the claim of entitlement to service connection and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the claim must be denied. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for adenocarcinoma, status-post left upper lobectomy, claimed as lung cancer, to include as secondary to Agent Orange exposure, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs