Citation Nr: 1303874	
Decision Date: 02/04/13    Archive Date: 02/08/13

DOCKET NO.  08-34 795	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for lymphoma, to include as due to exposure to herbicides or to non-service-connected bladder cancer.

2.  Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides.

3.  Entitlement to service connection for a prostate disorder or residuals of prostate surgery, claimed as prostate cancer, to include as due to exposure to herbicides or to non-service-connected bladder cancer.

4.  Entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicides or to non-service-connected bladder cancer.

5.  Entitlement to a total disability rating based on individual unemployability (TDIU), from December 2, 2007 until June 30, 2012.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran had active service from November 1969 until August 1973.  He served in Vietnam from November 1970 until November 1971.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, in regards to the bladder cancer claim.  The RO also denied lymphoma, residuals of prostate surgery, erectile dysfunction and TDIU in a March 2008 rating decision.  

This matter was previously before the Board in June 2009, March 2010 and September 2011.  The Board remanded the claims for additional development.

In a February 2012 rating decision, the RO granted service connection for laryngeal squamous cell cancer (claimed as throat cancer and presumptive respiratory condition) associated with herbicide exposure, with a 100 percent evaluation effective October 28, 2011.  In this regard, VA's General Counsel previously concluded that a claim for TDIU may not be considered when, as here, a schedular 100 percent rating is already in effect due to service-connected disability.  See VAOPGCPREC 6-99; 64 Fed. Reg. 52375 (1999).  See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In other words, in the past, the TDIU claim as of January 25, 2006 would have been considered moot.  However, in November 2009, VA's General Counsel withdrew VAOPGCPREC 6-99 in light of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008).  In Bradley, the Court ruled that although no additional disability compensation through a TDIU may be paid when a total 100 percent schedular disability rating is already in effect, VA may still potentially consider a TDIU claim in such instance in order to determine the Veteran's eligibility for Special Monthly Compensation (SMC) under section 1114(s).  22 Vet. App. at 292-94.  Therefore, in the present decision, the Board will consider whether the Veteran is entitled to a TDIU back to the date the Veteran's claim for TDIU was filed (December 2, 2007).  However, in a September 2012 rating decision, the RO granted TDIU, effective June 30, 2012.  As such, the Board has recharacterized the current claim to cover the applicable appeal period of from December 2, 2007 until June 30, 2012.

In February 2012, the Veteran has voluntarily withdrawn his claims for service connection for peripheral neuropathy.  Hence, those matters are no longer before the Board. See 38 C.F.R. § 20.204. 

The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing held at the RO, via videoconference, in August 2009.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal, other than additional VA medical records and a copy of the September 2012 rating decision.

The issues of service connection for bladder cancer, a prostate disorder or residuals of prostate surgery, erectile dysfunction and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The evidence of record does not show that the Veteran has lymphoma.  


CONCLUSION OF LAW

The criteria for the establishment of service connection for lymphoma, including as due to herbicides exposure or a service-connected disability, have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist
 
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim.  Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2011).  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This 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).  

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 information regarding the disability rating and effective date for the award of benefits if service connection is awarded.  Id. at 486.  

The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication.  See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  Under Sanders, VA bore the burden of proving that such an error did not cause harm.  Id.  

In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA.  Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis.  Id.  As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant.  

Here, VA satisfied the VCAA duty to notify by way of a letter sent to the Veteran 
in July 2007 (for the lymphoma and residuals of prostate surgery claims) that fully addressed all of the notice elements and was sent prior to the initial RO decision in this matter.  Through the letters, VA informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  VA also informed him that his service connection claim must be supported by evidence indicating a current disability, evidence that the injury or disease was incurred or aggravated during service, and medical evidence of a nexus between the current disability and the in-service injury or disease.  VA informed him that VA would seek to provide federal records and that it was his responsibility to support his claim with appropriate evidence, though VA would help him obtain records from any non-federal sources.  The July 2007 letter also included information on how service connection can be awarded on a secondary basis, when a disorder is either caused or aggravated by a service-connected disability

With respect to the Dingess requirements, the above noted letters also included notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish effective dates.  With those letters, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal.  

Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

With regard to records, VA has associated with the claims folder the Veteran's service treatment records and pertinent VA medical records.  With respect to the June 2009 Board Remand, the Veteran received a videoconference hearing before the undersigned Veterans Law Judge.  With respect to the March 2010 Board Remand, the RO/AMC associated with the claims file the Veteran's Social Security Administration (SSA) records and updated VA medical records.  Additionally, the RO/AMC contacted the Veteran in a March 2010 letter requesting private medical record information, but the Veteran failed to respond to that request.  The Veteran also received the ordered VA examination in regards to the claim in June 2010.  Finally, with respect to the September 2011 Board Remand, a November 2011 VA addendum opinion was obtained from the June 2010 VA examiner in regards to the claims.  The June 2010 VA examination and later addendum provided specific medical opinions pertinent to the issues on appeal and findings sufficient to make a decision.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

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.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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 v. Principi, 16 Vet. App. 183 (2002).

Applicable Law
 
Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a chronic disease or injury, or had a preexisting injury permanently aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no showing of a 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 can also be found for any disease diagnosed after discharge, if the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection requires: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 

Service connection can also be granted when a disability is the proximate result of or due to a service-connected disease or injury.  38 C.F.R. § 3.310(a).  See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additionally, the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (en banc).  Establishing service connection on a secondary basis therefore requires evidence sufficient to show the following: (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service connected disability.  Id.

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). 

Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina], all chronic B-cell leukemias (including but not limited to hairy cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, 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. Multiple sclerosis is not among those diseases for which presumptive service connection is available. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). 

Claims based on Agent Orange exposure are unique in that entitlement is based on an analysis of scientific evidence, ordered by statute. 38 U.S.C.A. § 1116(b). The Agent Orange Act of 1991 (in part) directed the Secretary of Veteran Affairs to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. 

Whenever the Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116(b)-(c). 

The Secretary has reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 32,540 (June 8, 2010). Based on the NAS committee report, Veterans and Agent Orange: Update 2008, and the Secretary added additional disorders to the list of those for which the presumption of service connection is available. See 75 Fed. Reg. 52,303 (Aug. 31, 2010). Bladder cancer is not among those new diseases for which presumptive service connection is available. 

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). 

Lymphoma Claim

The Veteran contends that he has lymphoma due to Agent Orange exposure in Vietnam.  

The Board notes that VA has previously conceded that the Veteran served in Vietnam during the period when Agent Orange was used under 38 C.F.R. § 3.307(a)(6)(iii) (in the February 2012 rating decision).  The Veteran's service personnel records also document that he served in Vietnam during the applicable time period.  As such, Agent Orange exposure is conceded.

The service treatment records do not document any complaints of, or treatment for, lymphoma.

Following service, VA medical records do not document any complaints of, or treatment for, lymphoma.  

In a June 2010 VA examination, the VA examiner noted that the Veteran had no documented lymphoma, though he had a history of lymphatic dissection due to bladder cancer resection.

In the November 2011 VA examination addendum, the VA examiner clarified that the Veteran had "no current medical evidence of having lymphoma."

A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  No medical evidence of record documents that the Veteran has a diagnosis of lymphoma.

Furthermore, as a layperson the Veteran does not possess the necessary knowledge of medical principles to make such a determination as diagnosing lymphoma.  His assertions, standing alone, are not probative as to the etiology of his current medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). A veteran is competent to provide evidence to establish when he notices symptomatology beginning where symptoms are capable of lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Buchanan v. Nicholson, 451 F.3d 1331 (2006).  The Veteran, however, does not contend that any symptoms manifested in service, or that he has had a continuity of symptoms since service. 

As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The Veteran's claim for service connection for lymphoma is denied. 


ORDER

Service connection for lymphoma, to include as due to exposure to herbicides or to bladder cancer, is denied.


REMAND

The Veteran contends that he has bladder cancer due to the already conceded herbicides exposure.  He further contends to have additional disabilities either due to herbicide exposure or the claimed bladder cancer, including a prostate disorder or residuals of prostate surgery (claimed as prostate cancer) and erectile dysfunction.  Additionally, he contends to have TDIU, from December 2, 2007 until June 30, 2012, due to his claimed disabilities.

The Board notes that effective October 28, 2011, the Veteran was service-connected for laryngeal squamous cell cancer, on a presumptive basis due to his herbicide exposure.  Unfortunately, none of the medical evidence of record addresses whether the Veteran's bladder cancer developed secondary to the service-connected laryngeal squamous cell cancer.  In addition, the Board notes that once VA undertakes the effort to provide an examination when developing a service- connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board has no discretion and must remand the bladder cancer claim to determine whether it, or any of the other claimed disorders, developed secondary to the service-connected laryngeal squamous cell cancer.

The remand of the bladder cancer claim could impact adjudication of the service connection claims for a prostate disorder or residuals of prostate surgery and erectile dysfunction, and TDIU.  These claims are inextricably intertwined with the bladder cancer claim and should be remanded.  Harris v. Derwinski, 1 Vet. App. 180 (1991) (two or more issues are inextricably intertwined if one claim could have a significant impact on the other).  

As these matters are being remanded for additional development, the Board notes that the last VA medical records associated with the claims file were from March 2010 and the record shows that the Veteran receives continuing treatment from VA.  Prior to any examination, an attempt should be made to obtain copies of any outstanding records of pertinent medical treatment.  

Accordingly, the case is REMANDED for the following actions:

1. The agency of original jurisdiction (AOJ) shall request and obtain any VA medical records not already associated with the claims file, including records from March 2010 to the present.  If the search for any such records yields negative results, that fact shall be clearly noted and the Veteran must be informed in writing.

2.  After the above development has been accomplished, the AOJ should request a new VA examination should be provided to address the claims.

Based on examination findings, as well as a review of the claims file, including treatment records, the Veteran's statements, and a copy of this remand, the examiner is requested is requested to answer questions and render opinions as to the following: 

      a)  Does the Veteran currently have:

		1) bladder cancer, 
2) a prostate disorder or residuals of prostate surgery, and/or
      3) erectile dysfunction?
 
b)  If (1) bladder cancer, (2) a prostate disorder or residuals of prostate surgery and/or (3) erectile dysfunction is found, is it at least as likely as not (50% probability or greater) that the claimed disorder:
      
      1) was caused by the Veteran's service     
           (including herbicide exposure), and/or
2) was caused or aggravated by the service-connected laryngeal squamous cell cancer?

c)  If bladder cancer is found to be caused by the Veteran's service and/or caused or aggravated by the service-connected laryngeal squamous cell cancer, is it at least as likely as not (50% probability or greater) that (1) a prostate disorder or residuals of prostate surgery, and/or (2) erectile dysfunction (if found) was caused or aggravated by the Veteran's bladder cancer?  

d)  If the examiner finds that (1) bladder cancer, (2) a prostate disorder or residuals of prostate surgery and/or (3) erectile dysfunction was caused or aggravated by service, the examiner shall opine as to whether, without regard to the Veteran's age or the impact of any non-service-connected disabilities, it is at least as likely as not that those disabilities (which the examiner has found to be related to service), either alone or in the aggregate, rendered him unable to secure or follow a substantially gainful occupation, from December 2, 2007 until June 30, 2012.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

A complete explanation must be given for all opinions and conclusions expressed.  The examiner is directed to reconcile his or her opinions with any on file that may conflict.  

3.  When the development requested has been completed, the case should again be adjudicated by the AOJ on the basis of the additional evidence, including any evidence forwarded directly to the Board. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MARJORIE A. AUER 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs