Citation Nr: 1237795 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-20 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for lung cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for renal cell carcinoma, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967, to include service in the Demilitarized Zone (DMZ) in Korea. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claims sought on appeal. In June 2012, the Veteran testified by videoconference before the undersigned. A transcript of the hearing is of record. At the hearing, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDINGS OF FACT 1. In June 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw from appeal a claim of entitlement to service connection for lung cancer, to include as due to herbicide exposure. 2. The weight of the evidence does not establish that the Veteran has verified active service in the Republic of Vietnam during the Vietnam Era or in the Korean DMZ between April 1, 1968 and August 31, 1971, and thus he may not be presumed to have been exposed to herbicide agents during such service; there also is no probative evidence of any actual herbicide exposure. 3. Renal cell carcinoma has not been shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the claim of entitlement to service connection for lung cancer, to include as due to herbicide exposure, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Renal cell carcinoma was not incurred in active duty service, to include as due to claimed herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn from appeal the matter of entitlement to service connection for lung cancer. The Board acknowledges that he orally withdrew this claim on the record during the June 2012 hearing, and such withdrawal was reduced to writing when the hearing testimony was transcribed. See generally Tomlin v. Brown, 5 Vet. App. 355 (1993) (hearing testimony before the RO, when reduced to writing, can constitute a notice of disagreement). Thus, there remains no allegation of errors of fact or law for appellate consideration with respect to this matter. Accordingly, the Board does not have jurisdiction to review this matter on appeal, and it must be dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 was revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. A claimant must also be provided with information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), in this case, the RO. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In this appeal, in a November 2009 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The December 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the November 2009 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file and in Virtual VA consists of various VA outpatient treatment records. Also of record and considered in connection with the appeal are the Veteran's service treatment records, the transcript of the June 2012 Board hearing, and various written statements provided by the Veteran, his fellow soldiers, and by his representative. The Board finds that no additional RO action to further develop the record in connection with the claim on appeal is warranted. The Board acknowledges that the Veteran was not afforded a VA examination in response to his claim. The Board has determined, however, that VA has no obligation to provide an examination in this case. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case because there is no competent evidence of an in-service event, injury, or disease or any persuasive indication that the current disability may be related to the in-service event. In this regard, the Board notes that the record does not contain any probative evidence that the Veteran was exposed to herbicides in service or that his renal cell carcinoma may otherwise be related to service. Moreover, the Veteran does not contend, nor does the evidence show, that renal cell carcinoma is otherwise related to his service. There was no diagnosis of his disability until 2009, 42 years after his separation from service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Thus, a VA examination is not warranted. 38 C.F.R. § 3.159(c)(4)(i). The Board further notes that, in June 2012 and August 2012, subsequent to the February 2012 Supplemental Statement of the Case (SSOC), the RO associated VA outpatient treatment records with the Veteran's Virtual VA file, without readjudication of the claim. The provisions of 38 C.F.R. § 20.1304(c) indicate that submission of pertinent evidence after the last SSOC requires a waiver of initial RO consideration or should be referred to the AOJ for consideration. Here, however, the Board finds that the newly-obtained VA treatment records are not pertinent to the Veteran's claim for service connection because they only pertain to his current diagnosis (which has already been established by the record) and treatment. Notably, they do not address the etiology of his renal cell carcinoma, which is the missing element in this appeal. Therefore, the Board finds that this evidence is not pertinent and remand for initial RO consideration of this evidence is unnecessary. VA also made reasonable efforts to establish whether the Veteran was exposed to herbicides. The November 2009 letter asked the Veteran to submit specific evidence of his exposure to herbicides. In November 2009, the RO requested any documents from the National Personnel Record Center that would establish that the Veteran was exposed to herbicides. The RO received a negative response, indicating that no records of exposure to herbicides were found. A January 2012 Memorandum summarizes VA's attempts to obtain evidence verifying herbicide exposure. The Board finds that this development satisfies VA's duty to assist. See 38 C.F.R. § 3.159(c) (noting that VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain, or development required to reach a determination in this case. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946 and a malignant tumor becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). The Veteran contends that his renal cell carcinoma was caused by his exposure to herbicides (specifically, Agent Orange) during his military service in Korea, and that service connection is thus warranted. VA treatment records reflect that the Veteran was found to have a renal mass in September 2009. After the Veteran underwent a biopsy procedure in November 2009, he was diagnosed with clear cell renal cell carcinoma. During a December 2009 VA Agent Orange examination, the Veteran reported various problems, which were listed in the examination report. No other information was provided or discussed in this examination. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Although the Veteran did not serve in Vietnam, the January 2012 Memorandum, the Veteran's DD Form 214 and service personnel record, and his testimony reflect that he served in Korea for a year and 28 days, from February 1966 to March 1967, with the 3rd Battalion, 23rd Infantry Regiment. The Department of Defense (DoD) has provided VA an inventory regarding Agent Orange use outside of the Republic of Vietnam. Based on the current DoD findings, the use of herbicides has only been acknowledged for specific units that served in areas along the DMZ in Korea between April 1, 1968 and August 31, 1971. The 3rd Battalion, 23rd Infantry Regiment of the United States Army, is included on the list as a unit within the affected area at the time Agent Orange was being used. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See 38 C.F.R. § 3.307(a)(6)(iv); see also MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C; Veterans Benefits Administration (VBA) "Fact Sheet," September 2003, available at http://vbaw.vba.va.gov/bl/21/publicat/Letters/Other/AoKorea.doc. The following diseases are deemed associated with herbicide exposure, under current VA law: 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, 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). In addition, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202-53216 (August 31, 2010). The foregoing diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, 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. 38 U.S.C.A. §§ 501(a), 1116 (West 2002); 38 C.F.R. §3.309 (e). Renal cell carcinoma is not a disability for which presumptive service connection is warranted. In fact, the Board finds it significant that VA has specifically determined that the presumption of service connection based on herbicide exposure is not warranted for renal carcinoma. This finding is based on consideration of reports of the National Academy of Sciences and all other sound medical and scientific information and analysis available to VA. See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41,442 (Aug. 8, 1996); 64 Fed. Reg. 59,232 (Nov. 2, 1999); 67 Fed. Reg. 42,600 (June 24, 2002); 68 Fed. Reg. 27,630 (May 20, 2003); 72 Fed. Reg. 32,395 (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010). Further, objective evidence does not establish that the Veteran served in Vietnam or in the Korean DMZ between April 1, 1968, and August 31, 1971. Although the Veteran served with a unit recognized as having been exposed to herbicides in the DMZ, the unit was not exposed until after the Veteran's Korean service. Thus, entitlement to service connection for renal cell carcinoma as related to herbicide exposure, on a presumptive basis, is not warranted. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. Here, however, the record does not support a finding that the Veteran was actually exposed to herbicides, to include Agent Orange, during service. The Veteran asserts that he was exposed to the spraying of a chemical during his service in Korea. In support of his claim, he has submitted several statements from fellow soldiers who stated that they witnessed the spraying of herbicides while in Korea in 1966. The Board notes that a layperson is competent to report matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran and his fellow soldiers, however, are not competent to identify which chemical was sprayed. Furthermore, even assuming without deciding that a chemical was sprayed during the Veteran's service in Korea, neither the Veteran nor his fellow soldiers are competent to state that exposure to any such chemicals caused the Veteran's renal cell carcinoma. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). The Board further finds that the record does not otherwise provide a basis to award service connection for renal cell carcinoma. The service treatment records are completely negative for findings or diagnoses of any carcinoma, and there is no medical evidence that any renal cancer was manifested (to any degree) during the first post-service year. Hence, the legal authority governing presumptive service connection for malignant tumor as a chronic disease is of no avail to the Veteran. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In fact, the first objective evidence of a renal mass is reflected in September 2009 VA treatment records-many decades after the Veteran's service. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Significantly, the claims file includes no medical evidence or opinion even suggesting that there is a relationship between renal cell carcinoma and Veteran's military service, and neither the Veteran nor his representative has presented or identified any such evidence. Although the Veteran has stated that the physician at his December 2009 VA Agent Orange examination opined that his renal cell carcinoma was due to his exposure to Agent Orange, upon review of the examination, there is no nexus opinion provided. Further, as explained in detail above, the Board does not find that the Veteran was actually exposed to herbicides during service, to include Agent Orange. Furthermore, any direct assertions by the Veteran, his fellow soldiers, and/or his representative that there existed a medical relationship between the Veteran's renal cell carcinoma and his service provides no basis for allowance of the claim. Matters of diagnosis and etiology are generally within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As laypersons without the appropriate medical training and expertise to provide an etiological nexus opinion regarding cancer and service (to include herbicide exposure), the Veteran, his fellow soldiers, and his representative are not competent to render a probative opinion on a medical matter such as this. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for service connection for renal cell carcinoma, to include as due to herbicide exposure, must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER The appeal as to the claim of entitlement to service connection for lung cancer, to include as due to herbicide exposure, is dismissed. Entitlement to service connection for renal cell carcinoma, to include as due to herbicide exposure, is denied. ____________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs