Citation Nr: 1301224	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO. 08-24 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1. Entitlement to service connection for a deep neck cyst with squamous cell carcinoma (claimed as cancer).

2. Entitlement to service connection for bad teeth with dry mouth, to include as secondary to treatment for squamous cell carcinoma.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Finn, Counsel



INTRODUCTION

The Veteran had active service from January 1968 to October 1969. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA).

The issues were remanded for further development in February 2010.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In September 2007, the Veteran filed a pension claim that has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over this claim. It is referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).


FINDINGS OF FACT

1. There is no competent evidence of record that the Veteran's skin cancer had its onset during active military service or within one year of his discharge from service, or that it is etiologically related to service, to include any presumed herbicide exposure.

2. There is no competent evidence or opinion that there exists a medical nexus between the Veteran's claimed dental condition and skin cancer for which service connection has not been established.




CONCLUSIONS OF LAW

1. The criteria for service connection for skin cancer, to include as due to herbicide exposure have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2. The criteria for service connection for a dental condition as secondary to skin cancer have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1).

A July 2007 letter explained the evidence necessary to substantiate the claims for service connection for skin cancer and bad teeth. The letter also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The July 2007 letter did not contain notice of how to substantiate service connection for a disability claimed as secondary to another disability. To the extent that lack of notice regarding this element constitutes error, any such error is harmless to the Veteran. The Veteran has demonstrated actual knowledge of the evidence and information necessary to establish his secondary service connection claim through his own written statements and testimony in which he explains that it is his belief that he is entitled to service connection because of radiation treatment for skin cancer (which he believes should be service-connected) has caused his teeth to decay. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005); rev'd on other grounds, Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant).

VA has a duty to assist Veterans in obtaining evidence necessary to substantiate their claim. The claims file contains service treatment records (STRs), service personnel records, VA treatment records, private treatment records, and lay statements. 

The Veteran has not been afforded a VA examination in connection with his claims for service connection. However, as explained in more detail below, compensation may not be awarded for skin cancer. The information and evidence of record does not establish that the Veteran suffered an event, injury, or disease in service, nor does it indicate that his skin cancer or symptoms may be associated with service. As the Veteran has claimed his dental condition as secondary to his treatment for skin cancer, there is no basis upon which to award compensation for a dental condition. A medical opinion regarding the etiology of his dental condition is therefore of no probative value and no examination or medical opinion is required. 38 U.S.C.A. § 5103(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i).

The duty to assist in advising the Veteran regarding his appointment of representative has been met and the RO/AMC has substantially completed the February 2012 remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the particular claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012).



Law and Regulations

Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).

The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii).

The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, chronic lymphocytic leukemia, 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 certain soft-tissue sarcomas. A presumption of service connection based on Agent Orange exposure, however, is specifically not warranted for various disabilities, to include melanoma and non-melanoma skin cancer (basal cell and squamous cell). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Chloracne or other acneform disease consistent with chloracne must manifest to a degree of ten percent or more within one year after the last date of exposure to an herbicide agent. 38 C.F.R. § 3.307(a)(6).

Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Merits of the Appeal

The Veteran contends that his squamous cell carcinoma of the neck is the result of exposure to herbicides, asbestos, and/or lead paint while serving aboard a ship in the United States Navy from January 1968 to October 1969. (See April 2007 Written Statement and August 2008 Form 9). He also asserts that his bad teeth with dry mouth are also related to service.

His service personnel records confirm that he served aboard the USS Ogden while in the U.S. Navy as a mechanic. During service, the Veteran participated in 7 operations. The operations were conducted by the Amphibious Ready Group off the coast of the Republic of South Vietnam in direct support of Marines of the Seventh Fleet Special Landing Force engaged in combat missions ashore.

It is unclear from the DD Form 214 whether the Veteran had actual service on the landmass of Vietnam or its inland waterways. (See MANUAL OF MILITARY DECORATIONS AND AWARDS, 6.5 (U.S. Department of Defense Manual 1348.33-M, September 1996). In an Exam Request Report, the RO stated that "[t]he available evidence concedes that the Veteran was in an area of enemy hostility during his deployment on the USS Ogden which participated in 7 amphibious operations off the coast of the Republic of South Vietnam in direct support of the Marines of the Seventh Fleet Special Landing Force who engaged in combat missions ashore. The dates of these operations range from Aug. 1968 to Feb. 1969. This is consistent with his assigned military occupational specialty of a Marine mechanic...." Resolving all reasonable doubt in his favor, the Board will presume he was exposed to an herbicide agent, such as Agent Orange, while there. 38 C.F.R. § 3.307(a)(6), 3.313(a). However, the Veteran's diagnosed skin cancer is not on the list of diseases associated with herbicide exposure for purposes of the presumption.

The Veteran may still establish service connection for skin cancer with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999).

The Veteran's STRs are silent regarding any skin conditions, including symptoms, diagnoses, or treatment for any acute or chronic disorders, such as skin cancers, skin burns or inflammation from acute exposure to herbicides, asbestos, or lead paint. His service entrance and exit examinations indicate normal skin examinations. (See November 1966 and September 1969 examinations).

Post-service medical evidence reflects that squamous cell carcinoma was first diagnosed in 1991 with subsequent radiation treatment. (See Valley Hospital and Medical Center Treatment Records).

The Veteran's STRs and post-service treatment records provide no evidence to support complaints of skin symptoms during service or one year post-service. Although the Veteran has reported a history of continuity of symptomatology from active service forward, he did not receive a diagnosis of skin cancer until 1991 and has not required treatment for skin cancer until over 22 years after service discharge.

There is no evidence of skin cancer during service or within the initial post-service year establishing a positive relationship between the Veteran's diagnosed skin cancer to military service, to include his presumed herbicide exposure, service connection on a direct basis is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309.

There is no evidence linking the Veteran's skin cancer to his military service, other than the Veteran's own assertions that the two are related. While he is competent to relate events in service and after service, and to describe the extent of his current symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). 

As noted above, the Veteran has claimed service connection for a dental condition- described as bad teeth with dry mouth- as secondary to his claimed skin cancer treatment. Given the denial for compensation of skin cancer, there is no basis upon which to award service connection for a dental condition. As such, this claim must also be denied.

In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

Service connection for a deep neck cyst with squamous cell carcinoma is denied.

Service connection for bad teeth with dry mouth, to include as secondary to squamous cell carcinoma is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs