Citation Nr: 1228286 Decision Date: 08/16/12 Archive Date: 08/21/12 DOCKET NO. 09-06 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for lung cancer as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1971. He died in November 2009 and the appellant is his surviving spouse. As explained further below, the appellant sits in place of the Veteran with regard to this claim. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim of entitlement to service connection for lung cancer as due to herbicide exposure. The Board notes that although the Veteran, in his February 2009 VA Form-9, requested a Board hearing by live videoconference, in an October 2009 statement, the Veteran withdrew the hearing request. The appellant has not requested a new hearing. As such, the hearing request is considered withdrawn. The Veteran perfected an appeal of this decision in February 2009. Thereafter, the Veteran died in November 2009, prior to adjudication of the claim by the Board. In a July 2010 decision, the Board dismissed the appeal due to the death of the Veteran. In December 2009, the appellant filed a request for substitution of claimant. See 38 U.S.C. § 5121A (West 2002 & Supp. 2010) (providing the opportunity for substitution of individuals eligible to receive accrued benefits in cases where the claimant dies on or after October 10, 2008). In November 2010, the RO granted the appellant's request for substitution in the appeal. Thus, the current appeal is as identified on the title page of this decision and the appellant is the appropriate claimant. Although the appellant submitted additional evidence after the case was certified to the Board, in the April 2012 Appellant's Brief, the appellant's representative waived RO consideration of such evidence in the first instance. As such, the Board may proceed with the appeal. 38 C.F.R. § 19.9(d)(3) (2011). FINDINGS OF FACT 1. At the time of the Veteran's death in November 2009, his appeal for the claim of entitlement to service connection for lung cancer as due to herbicide exposure was pending before the Board. 2. The appellant filed a motion for substitution in December 2009 and the motion was granted in November 2010. 3. The Veteran did not serve in Vietnam and there is no competent, credible evidence of record showing that the Veteran was exposed to herbicides during active service. 4. Lung cancer was not present during active service or within one year of discharge from service, and lung cancer is not otherwise causally or etiologically related to active service. CONCLUSION OF LAW Lung cancer was not incurred in active service, nor may it be presumed to have been incurred during active service. 38 U.S.C.A. §§ 1110 , 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, 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. The Board notes that In August 2010, the Director, Compensation and Pension Service, issued a Fast Letter providing guidance on processing claims involving substitution of parties. See Fast Letter 10-30 (August 10, 2010). The letter notes that, unlike accrued benefits claims, in which VA considers evidence in the file or in VA's possession at the date of death, a substitute claimant may submit additional evidence in support of the claim. Further, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Id , at p. 2. In addition, VA has published a proposed a new regulation for inclusion in 38 C.F.R. Part 3, 14 , and 20 to address the issue of substitution. See 76 Fed. Reg. 8666-8674 (February 15, 2011). Under proposed 38 C.F.R. § 3.1010(f)(3), a substitute could submit evidence and generally would have the same rights regarding hearings, representation, and appeals as would have applied to the claimant had the claimant not died. Id. at 8669. In this case, the Board finds that VA's duty to notify was satisfied by a letter sent to the Veteran in March 2008. The letter addressed all of the notice requirements, to include notice regarding disability ratings and effective dates, and was sent prior to the initial unfavorable decision by the Agency of Original Jurisdiction (AOJ) in May 2008. In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records, service personnel records, VA medical records, a letter from the Veteran's VA oncologist which contains a nexus opinion in favor of the claim, private treatment records, and a lay statement are in the claims file and were reviewed by both the RO and the Board in connection with the appellant's claim. Moreover, as previously noted, the appellant submitted additional evidence, including internet articles and information, in support of her claim. The Board notes that a VA medical opinion was not obtained in this case. In this regard, VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that it was not necessary to obtain a VA medical opinion in this case. Specifically, a medical opinion in favor of the claim on an Agent Orange presumptive basis is already of record. With regard to the claim on a direct basis, there is no evidence of lung cancer during service, within one year of service, any contention of continuity of symptomatology since service, or suggestion that lung cancer is otherwise etiologically related to service (apart from the Agent Orange basis of the claim). Regardless, the determining factor in this case is not a medical question. Instead, this case rests on whether the Veteran was exposed to herbicides during active service. As such, there is adequate medical evidence of record to make a determination in this case. Therefore, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). As discussed above, the appellant was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The appellant was a participant in the claims process. Thus, she has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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, such as 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; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to law and regulations regarding service connection, the Board notes that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during such period of service. 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed in 38 C.F.R. § 3.309(e) 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. The last date on which such veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; type II diabetes; Chronic lymphocytic leukemia; 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); Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes the following: Adult fibrosarcoma; Dermatofibrosarcoma protuberans; Malignant fibrous histiocytoma; Liposarcoma; Leiomyosarcoma; Epithelioid leiomyosarcoma (malignant leiomyoblastoma); Rhabdomyosarcoma; Ectomesenchymoma; Angiosarcoma (hemangiosarcoma and lymphangiosarcoma); Proliferating (systemic) angioendotheliomatosis; Malignant glomus tumor; Malignant hemangiopericytoma; Synovial sarcoma (malignant synovioma); Malignant giant cell tumor of tendon sheath; Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; Malignant mesenchymoma; Malignant granular cell tumor; Alveolar soft part sarcoma; Epithelioid sarcoma; Clear cell sarcoma of tendons and aponeuroses; Extraskeletal Ewing's sarcoma; Congenital and infantile fibrosarcoma; Malignant ganglioneuroma. For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall be service connected if they manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, shall have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); see also Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32395-01 (June 12, 2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran did not serve in Vietnam, and indeed, the appellant does not contend that he had such service. Instead, the instant claim for service connection for lung cancer is based upon the Veteran's alleged exposure to herbicides during active service on temporary duty,when he was stationed at Andersen Air Force Base in Guam from September 1969 to March 1970. Specifically, at the Decision Review Officer hearing in July 2008, the Veteran stated that while serving on temporary duty in Guam, he was an outside material facility specialist. In that capacity, he worked in a drum lot, handling 55 gallon drums. He stated that the drums were not identified as containing Agent Orange, but he believes that they contained Agent Orange and as such, he believes he was exposed to it. The Department of Defense has compiled an official list reflecting the use, testing, and storage of herbicides at various locations. However, this list does not indicate that herbicides were used in Guam during the time period when the Veteran was stationed there. In addition, an August 2009 letter from the U.S. Army and Joint Services Records Research Center (JSRRC) indicates that the available historical data does not document any herbicide spraying, testing, storage, transportation or usage at Andersen Air Force Base in Guam during 1969 or 1970. Therefore, JSRRC determined that it could not be verified that the Veteran was exposed to herbicides while serving in Guam. The August 2009 letter also states that the Department of Defense list of herbicide spray areas and test sites outside of the Republic of Vietnam does not include Andersen Air Force Base, Guam. Because the Secretary of VA, in conjunction with scientific input from the National Academy of Sciences, has determined that the herbicides used in Vietnam can cause the disease of lung cancer (see Notice, 72 Fed. Reg. 32395-32407 (2007)), if it can be established that the Veteran was in fact exposed to such herbicides during the course of his service, the nexus to service could be presumed under law. The Veteran's VA oncologist submitted a statement indicating that although the Veteran was a smoker and smoking is a risk factor for lung cancer, his exposure to Agent Orange more likely than not contributed to the diagnosis of his lung cancer. However, in this case, the problem is the absence of evidence indicating that the Veteran was exposed to herbicides during his active service. In the attempt to establish his exposure to herbicides while serving in Guam, the appellant has submitted multiple documents, including a prior Board decision in which exposure to herbicides in Guam was conceded. Unfortunately, the Board decision submitted does not contain any reference to any specific documentation upon which the Board relied on the case, so as to allow for current review and application of such evidence in this case. Furthermore, although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1303. In this particular case, nothing in the substance of the other Board decision noted by the appellant convinces the Board that the individual facts and circumstances of that case reasonably relates to the individual facts and circumstances of this case. The appellant has also submitted several documents printed from the internet, including a report from the U.S. Environmental protection AcencyCenters regarding toxic chemicals in general, an internet article stating that Agent Orange on Guam was confirmed (based upon the above mentioned prior Board decision), and an internet article from another Veteran who claims to have knowledge of Veterans who used Agent Orange on Guam from 1962 to 1969. Finally, the record contains a April 2008 letter from a fellow Veteran who served with the Veteran at Andersen Air Force Base, which states that the Veteran was a material handler specialist, and his duties included handling toxic material, which included Agent Orange. Despite these articles and the buddy statement, the preponderance of the evidence does not support a finding that the Veteran was exposed to herbicides during service. While the Board is sympathetic to the appellant's claim and understands that she may firmly believe that the Veteran was exposed to Agent Orange during active service in Guam, an identification of the contents of the unmarked drums handled by the Veteran during service as including herbicides is not within the appellant's competence. Exposure to herbicides such as Agent Orange during the course of the Veteran's duties in Guam simply is not shown by the record. Absent this element of the claim on an Agent Orange presumptive basis, the criteria for a grant of service connection are not met. With regard to the claim on a direct incurrence basis, the claim must also be denied. In this regard, the appellant does not contend, and the evidence does not show, that lung cancer was present during service or within one year of the Veteran's discharge from active service. Specifically, the service treatment records are negative for lung cancer and the separation examination report reflects normal examination of the lungs. Moreover, lung cancer was originally diagnosed in 2007. There is no claim of continuity of symptomatology since service, and nothing in the record, including all lay and medical evidence, suggests that the Veteran's lung cancer was present during service or within the year after discharge from service, that it continued since service, or was otherwise causally or etiologically related to active service, apart from the herbicide related claim discussed above. As such, the claim is denied on a direct basis as well. Accordingly, service connection is not in order for lung cancer. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. ORDER Service connection for lung cancer is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs