Citation Nr: 1317730 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-18 653A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a malignancy diagnosed as squamous cell carcinoma (claimed as a lymphoma due to herbicide exposure). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1966 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In July 2012 the Board sought a VHA medical advisory opinion; in January 2013 the Board sought clarification of the VHA medical opinion which was initially received. FINDING OF FACT It is not shown that the Veteran has a lymphoma; his malignancy is shown to be a squamous cell carcinoma that was not manifested in service or in the first postservice year; and is not shown to be related to his service. CONCLUSION OF LAW Service connection for the Veteran's squamous cell carcinoma (claimed as lymphoma due to exposure to herbicides) is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). The notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A March 2007 letter informed him of the evidence and information necessary to substantiate the claims, the information required of him to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the type of evidence he should submit; it also advised him of effective date and disability rating criteria. Regarding VA's duty to assist, the Veteran's service treatment records (STRs) were obtained and postservice private and VA treatment records were secured. The Board also reviewed "Virtual VA" records, and found none pertinent (that are not duplicates of those in the claims file). The Board secured a VHA medical opinion (with addendum) in this matter and finds that such opinion, with addendum explanation, is adequate for rating purposes. The opinion is accompanied by a thorough explanation of rationale, reflects familiarity with the factual evidence, and includes discussion of medical principles. As the evidence of record does not indicate that the Veteran has a lymphoma or other type of cancer that may be related to service (to include based on presumed exposure to herbicides therein), the "low threshold" standard as to when an examination to secure a nexus opinion is required is not met, and development for such an examination is not necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability resulting from an injury sustained or a disease contracted while on active duty in the military. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The record shows that the Veteran engaged in combat in Vietnam; his DD Form 214 reflects he was awarded a Purple Heart Medal. In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat Veteran's alleged disability; the appellant is still required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent medical evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). If a malignant tumor becomes manifested to a degree of 10 percent or more within a year following a Veteran's discharge from active duty, it may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is a rebuttable presumption of service connection for certain listed diseases which are attributable to Agent Orange exposure for Veterans who served in the Republic of Vietnam from January 1962 through May 1975. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. 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 deemed associated with herbicide exposure for purposes of this presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease, 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. 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 VA 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, notice of such determination, including an explanation of the scientific basis for the determination, must be published. 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). Squamous cell carcinoma (which the Veteran has been diagnosed) 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). The Veteran had service in the Republic of Vietnam from December 1966 to October 1967. He seeks service connection for a malignancy (claimed as lymphoma) biopsied in June 2001 to include as related to exposure to herbicides in Vietnam. His STRs do not show any complaints, treatment, or diagnosis for lymphoma of any malignancy. Postservice, VA medical records do not document any complaints of, or treatment for, lymphoma. A June 2001 surgical pathology report for excision and biopsy of a left axillary lymph node notes that the final diagnosis rests upon the histopathologic findings; and lists the diagnosis as left axillary lymphadenopathy, rule out lymphoma, and metastatic poorly differentiated squamous cell carcinoma. From September 25, 2001 to November 28, 2001, the Veteran received radiation treatment for his metastatic carcinoma involving the left axilla. In October 2001, he underwent left complete axillary node dissection for metastatic squamous cell carcinoma up to the left axilla. A July 2002 chest x-ray report notes the Veteran had a clinical history of lymphoma. In an October 2005 private treatment record (from Dr. E.W.) it is noted that the Veteran smoked 2 packs of cigarettes a day. A December 2006 record notes he quit smoking in September 2006. December 2007 and April 2008 follow-up records note the Veteran reported that he was status post excision of a melanoma in-situ from the right distal upper arm (June 2005), as well as status post excision of an atypical junctional melanocytic neoplasm from the right upper lateral back (July 2005). He was also status post excision of several non-melanoma skin cancers from the back, chest and upper extremities. He was unaware of how long any of them had been present. In addition, he noted a red bump on his right lateral neck. In May 2008 the Veteran had an excision of a previously diagnosed squamous cell carcinoma of the left mid antihelix. In August 2008 basal cell carcinoma of the left ventral forearm was diagnosed. In January 2009 he underwent excision of an atypical melanocytic neoplasm from the right posterior shoulder with closure via multi-layer. In July 2012, the Board sought a medical advisory opinion from a VA expert in oncology regarding whether the Veteran has or ever had a lymphoma, and if not, what was the proper diagnosis for the growth biopsied in June 2001. Further, if the diagnosis of the growth excised/biopsied in June 2001 was other than lymphoma, the VA expert was ask to opine on whether it is at least as likely as not that such disease entity is related to the Veteran's presumed exposure to herbicides in Vietnam, or is otherwise related to his service. In a September 2012 opinion and January 2013 addendum, the VA expert (a Chief of hematology/oncology) stated that there was no evidence that the Veteran has or ever had a diagnosis of lymphoma. A histopathologic examination and flow cytometry demonstrated no evidence for lymphoma. He noted that in April 2001 the Veteran presented with swollen lymph nodes in the left axilla. A biopsy was recommended and he underwent that procedure in June 2001. The pre-operative diagnosis was lymphoma; the purpose of the biopsy was to either prove or disprove that diagnosis. Flow cytometry was performed and demonstrated no evidence of lymphoma. The pathologic diagnosis was squamous cell carcinoma of the axillary lymph nodes of unknown primary. The expert explained that squamous cell carcinoma does not arise from the lymph node. Instead, the primary cancer arose elsewhere and spread to the lymph nodes. He opined that it was unlikely that the squamous cell carcinoma was due to prior presumed exposure to herbicides in Vietnam. The Board finds the opinions of the VA medical expert merit substantial probative weight because, by virtue of his specialized training and experience, he is eminently qualified to offer such opinions; they are accompanied by a thorough explanation of rationale; reflect familiarity with the factual evidence; and include discussion of accepted medical principles. While the Veteran is competent to report symptoms he experiences, as a layperson he does not possess the expertise necessary to diagnose and determine the etiology of a malignancy (which he claims is a lymphoma). These are medical questions beyond the scope of lay observation; the specific diagnosis for a malignancy and determining its etiology clearly requires medical expertise (and diagnostic studies), See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran does not cite to supporting medical opinion or medical literature. Based upon the foregoing, the preponderance of the evidence is against a finding that the Veteran has or ever had a lymphoma. Consequently, a threshold requirement necessary to substantiate a claim of service connection for lymphoma is not met. Without competent evidence of a diagnosis of lymphoma there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The analysis progresses to whether the diagnosed malignancy (squamous cell carcinoma) may be related to the Veteran's service (and service connected). As noted, squamous cell carcinoma is not among those diseases for which presumptive service connection based on exposure to herbicides is available. Therefore, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply. A squamous cell carcinoma was not manifested in service or in the first postservice year. Therefore, service connection for such disability on the basis that it became manifested in service and persisted, or on a chronic disease presumptive basis (under 38 U.S.C.A. § 1112(a)) is not warranted. There is no competent evidence that suggests that squamous cell carcinoma may somehow otherwise be related to the Veteran's service. Consequently, the preponderance of the evidence is against the Veteran's claim. 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 appeal in this matter must be denied.. ORDER Service connection for a malignancy diagnosed as squamous cell carcinoma (claimed as a lymphoma due to herbicide exposure) is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs