Citation Nr: 1321606	
Decision Date: 07/05/13    Archive Date: 07/12/13

DOCKET NO.  09-03 556A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for lung cancer, including as due to in-service herbicide exposure. 


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to April 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In a March 2012 decision, the Board reopened and then denied the claim of entitlement to service connection for lung cancer, including as due to in-service herbicide exposure. 

The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In September 2012, the Veteran's attorney and VA's Office of General Counsel, representing the Secretary of VA, filed a joint motion asking the Court to vacate that part of the Board's decision denying service connection for lung cancer, including as due to in-service herbicide exposure.  In September 2012, the Court issued an order granting the parties' joint motion to vacate and remand, and returned the files to the Board for compliance with directives specified in the joint motion. 

In May 2013 additional evidence was received at the Board that is pertinent to the claim. The Veteran's attorney contemporaneously waived initial review of this evidence by the RO, as the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 20.1304 (2012). 


FINDINGS OF FACT

1. The Veteran served onboard the USS Power (DD-839) in the offshore deep waters of the Republic of Vietnam during the Vietnam era; the overall evidence does not show the USS Power docked in Da Nang subsequent to a collision with the USS Wrangell in early February 1969; or that at anytime the Veteran set foot on land in the Republic of Vietnam, or was otherwise exposed to an herbicide agent (to include Agent Orange) during service. 

2. Lung Cancer is not shown during the Veteran's military service; it was first diagnosed many years after his period of active duty; and is not related in any way to such service. 


CONCLUSION OF LAW

Lung cancer was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). 

The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In a May 2002 letter, the RO informed the Veteran of its duty to assist him in substantiating his claim for service for lung cancer under the VCAA, and the effect of this duty upon his claim. In a March 2006 letter, the RO informed him of how disability ratings and effective dates are assigned, if service connection were to be granted. See Dingess v. Nicholson, supra. The Veteran has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). 

The Board also finds VA has satisfied its duty to assist the Veteran in the development of his claim. Relevant in-service and post-service treatment reports are of record. In addition, as mentioned in the Introduction, in a September 2012 joint motion, the parties remanded the case to ensure that the USS Power's deck logs on November 13, 1968 and from January 29 to February 6, 1969, were available for review. The records are necessary to ascertain whether they reflect that the USS Power docked at Da Nang harbor or that there is otherwise information sufficient to show that the Veteran went ashore. Those records were obtained and submitted by the Veteran's attorney in May 2013. The deck logs do not confirm that the USS Power docked at the time that the Veteran contends nor do they confirm that he went ashore. Further development concerning those records by the Board is not necessary.

In addition, the Veteran was not examined for the purpose of addressing his lung cancer claim. Under the VCAA, VA is obliged to provide an examination when the veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Here, while there is a diagnosis of lung cancer, there is no evidence of a continuity of symptoms, or competent evidence that his lung cancer may be related to service. Thus, an examination is not required here, even under the low threshold of McLendon. 

VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); Quartuccio v. Principi, supra. 

Service Connection

It is contended by and on behalf of the Veteran that he is entitled to presumptive service connection for lung cancer based on his exposure to herbicides in the Vietnam War. Specifically, it is asserted that during service, subsequent to a collision with another ship, the USS Wrangell, his ship the USS Power, docked in Da Nang Harbor, Vietnam, and the Veteran left the ship and he set foot onshore to obtain ship supplies. He also has asserted that he was sprayed with herbicides in Vietnam while providing support in a gun boat. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). 

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the VA regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). 

Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.  

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). 

If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including malignant tumors, cancer, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). 

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a), such as cancer, applicable here. Id. 

Service connection can also be established on a presumptive basis for certain diseases associated with exposure during service to herbicides. See 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Lung Cancer is such a disease. 38 C.F.R. §3.309(e). 

A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). "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. § 3.313(a). VA's General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic of Vietnam. Specifically service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam. See VAOPGCPREC 27-97. 

Recent litigation has upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) cert. denied 129 S.Ct. 1002 (2009). 

In December 2008, VA Compensation and Pension (C&P) Service released policy on Vietnam Naval Operations. C&P Service initiated a program to collect data on Vietnam naval operations for the purpose of providing regional offices with information to assist with development in Haas related disability claims based on herbicide exposure from Navy Veterans. This particular policy statement provided further definition as to what constitutes Vietnam "Blue Water" versus "Brown Water" for the purpose of determining Agent Orange exposure. It was determined that Da Nang Harbor and all other harbors along the Vietnam coastline were considered by C&P Service to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam. Ultimately, VA considers open deep-water coastal harbors, such as those at Da Nang, Cam Rahn Bay, and Vung Tau to be part of the offshore blue water of Vietnam and not part of its inland waterway. See December 2008 C&P Service Bulletin. 

In a February 2009 C&P Bulletin, in pertinent part it indicates that if development provided evidence that a blue water Veteran served aboard a ship that docked on the shores of Vietnam and places the Veteran aboard the ship at that time, and the Veteran provides a statement that he went ashore, this will be sufficient evidence to establish a presumption of herbicide exposure. The bulletin clarifies that the evidence must indicate that the ship actually docked on shore, and that service aboard a ship anchored in an open deep-water harbor such as Da Nang is not the same as docking to the shore. Evidence of shore docking is required. See February 2009 C&P Service Bulletin. 

Factual background

The Veteran's service personnel records, his DD 214, Report of Transfer or Discharge, shows that he served in the United States Navy from August 1967 to April 1969. His service occupational specialty was as a BM (boatswain's mate), and he served aboard the USS Power (DD-839). He had 1 year, 4 months, and 1 day sea service, and he received the National Defense Service Medal and the Vietnam Service Medal. 

The Veteran's service treatment records (STRs) are entirely absent for any complaints, findings, or diagnoses referable to a lung disorder, including lung cancer. 

Private medical records from November 1998 report imaging studies that revealed a right middle lobe mass later diagnoses as small cell lung cancer. Thereafter the Veteran received therapeutic treatment for lung cancer, including chemo and radiation therapies. 

In early 2001, the RO attempted to verify the Veteran's Vietnam service, requesting the dates of his service in Vietnam as well as any documents showing in-country service. In July 2001 and December 2002, the RO received responses from the National Personnel Records Center (NPRC), confirming that the Veteran served aboard the USS Power, which was in the official waters of the Republic of Vietnam roughly between October 1968 and February 1969. It was indicated that they were unable to confirm the Veteran's contention that he had in-country service in Vietnam. 

At a July 2006 personal hearing before a hearing officer at the RO, the Veteran testified that he served in Vietnam for 15 months. He stated that he went ashore just once for a couple of hours to get ammunition, fuel and medical and food supplies. He reported that he went ashore with a few gunners mates. The Veteran stated the he was diagnosed with cancer over 6 years ago. 

In a response received in May 2007 concerning the Veteran's in-country Vietnam service, the U.S. Army and Joint Services Records Research Center (JSRRC)) reviewed the 1968 command history for the USS Power (DD-839). It was confirmed that after a port of call at Subic Bay in the Philippines, the USS Power arrived at Da Nang, Vietnam on November 13, 1968 for type training and briefings. The report offered no proof of the Veteran's physical presence in Vietnam or that the ship had actually docked at the Vietnam shore. 

It was noted that command histories, deck logs, and muster rolls/personnel diaries are the only administrative records produced by commissioned U.S. Navy ships during the Vietnam war that are permanently retained. These records would not normally annotate individuals arriving or going ashore on a routine basis. Although the deck logs may indicate aircraft or boats arriving/departing, they would not list passengers by name, unless that individual was a very important person (VIP) or high ranking officer. In addition deck logs do not normally list the destinations of these aircraft and vessels. Logbooks maintained aboard river boats or launches were not considered permanent records. It was also noted that information regarding the duties and assignments requiring the Veteran to go ashore in Vietnam may be in his Official Military Personnel File (OMPF). 

In March 2009, in support of his claim, the Veteran submitted copies of undated photographs presumably of himself and shipmates aboard the USS Power. One picture shows a ship, presumably the USS Power moored in a body of water, according to the Veteran, purporting to depict the ship docked at Da Nang. 

Received in June 2009, were a series of e-mail exchanges between the Veteran, and apparently his shipmates from the USS Power, attempting to seek information about the collision between the USS Power and another ship (USS Wrangell). At least two individuals recalled that such a collision occurred in February 1969. In one e-mail a shipmate was asked if he recalled having to dock in Da Nang for resupply after the collision between the USS Power and the USS Wrangell. The shipmate responded, "Yes I do remember pulling into a "harbar" (Da Nang) for resupply. In another e-mail a shipmate reported that he did not remember taking on ship's stores or fuel, just that they were in Da Nang. He stated that "we might have taken on some ammo stores but for sure it wasn't "all hands" detail. He then stated that the port call was for a short staff officers meeting ashore. In another e-mail, former officers confirmed that the USS Wrangell and USS Power collided. 

VA administrative records in the claims folder, dated in June and July 2009, show that in response to submission of the e-mails, JSRRC informed the RO that the e-mails provided to support the Veteran's assertion that he went ashore to Da Nang during the Vietnam War were not specific for research purposes. In May and November 2009, VA provided a formal finding that there was insufficient information to verify the Veteran's in-country service in Vietnam.

Submitted on the Veteran's behalf in May 2009, is a series of deck logs from the USS Power dated from November 1968 through February 1969. The deck logs are specific and detail the operations of USS Power during these dates. From November 11 through November 13, 1968 it was reported that the USS Power steamed from Subic Bay, Philippines to Da Nang, South Vietnam in accordance with a quarterly employment schedule. It was specified that upon arrival in Da Nang, ship anchored and a motor boat departed the ship with the ship's commander and others for a shore briefing. The captain returned that same day and the ship then got underway.  

In a February 1969 entry, it was reported that during an operation, the USS Power collided with the USS Wrangell. The deck logs mentioned that subsequent to the collision and an assessment of damage, the USS Power continued maneuvers, including bombardments. The deck logs then show that the USS Power continued operations and maneuvers in the South China Sea through February 10, 1969 when it steamed to Subic Bay, Philippines where there it then anchored and moored. There is no indication from the logs that the USS Power docked in Da Nang subsequent to its collision with the USS Wrangell. 

Analysis

The basis of the Veteran's claim is presumptive service connection for his lung cancer due to exposure to herbicides under 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. The Board is sympathetic to the circumstances surrounding his lung cancer, but we have reviewed the entirety of the record, and conclude that the overall evidence does not support the claim for service connection for lung cancer, including as due to in-service herbicide exposure. 

Service personnel records of the Veteran confirm that he served aboard the USS Power, and that he was awarded the Vietnam Service Medal. However, this award does not prove actual "service in the Republic of Vietnam" for purposes of the regulations. Haas, 525 F.3d at 1193-1194.

The Veteran asserts that following a collision between his ship, the USS Power, and another ship the USS Wrangell, the USS Power then docked in Da Nang Harbor, and he went ashore to obtain supplies for the USS Power.  Despite additional evidentiary development and the receipt of deck logs, the Board has been unable to confirm that he had in-country service in Vietnam for purposes of presumptive service connection based on exposure to herbicides in Vietnam. 

The Veteran has maintained (and ship logs confirm) the U.S.S. Power anchored in Da Nang Harbor Vietnam in November 1968. However, this was several months prior to when the Veteran reported going ashore in Da Nang. Further, while as mentioned by the JSSRC the logs do not annotate individuals arriving or going ashore, these particular logs do report that back November 1968 when the ship did dock in Da Nang that the ship's commanding officer and others went ashore for a briefing (not to obtain additional supplies). Again, the Veteran has not asserted that this is the time that he went ashore in Da Nang, but it must be pointed out that the ship deck logs also do not show or indicate that the Veteran in his capacity as a Boatswains Mate went ashore at that time. The USS Power's deck logs do consistently and specifically report routine mooring and docking of the USS Power. Regarding the assertion that the Veteran went ashore to Da Nang for ship supplies following a collision with the USS Wrangell, the ship logs indeed do confirm that in early February 1969 a collision between those ships occurred. However, review of the deck logs for the USS Power for the time frame in early February 1969 subsequent to the collision with the USS Wrangell specify that after assessing damage from the collision, the USS Power continued on maneuvers and operations before then sailing on to Subic Bay, Philippines. The ship logs from that time do not show that the USS Power docked or even anchored in Da Nang after its collision with the USS Wrangell. Required evidence of shore docking by the USS Power, during the claimed timeframe, is not shown by these or any other records for that matter. 

At this point it is important to point out that the Board must assess the credibility and weigh all the evidence. The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). 

The Board notes that consideration has been given to the Veteran's statements that his lung cancer is related to his military service and his exposure to herbicides in Vietnam. Lay statements may be competent to support a claim for service connection where the events or the presence of disability or symptoms of a disability are subject to lay observation. 38 U.S.C.A. § 1153(a) ; 38 C.F.R. § 3.303(a) , 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan, 451 F.3d 1313. However, lung cancer is not a disability subject to lay opinions as to diagnosis and etiology. The Veteran does not have the medical expertise to diagnose himself with the claimed disorder, nor does he have the medical expertise to provide an opinion regarding its etiology. Thus, the Veteran's lay assertions as to the etiology of his lung cancer are not competent or sufficient in this instance. Jandreau, 492 F.3d 1372. 

Here, in addition, the Veteran asserts through lay testimony that he went ashore in the Republic of Vietnam, and there are several e-mails from shipmates on the matter. At least one shipmate in an e-mail reported that he remembered the ship (USS Power) resupplying in Da Nang. Another reported that officers went ashore. Further, and not necessarily dispositive though, none of these e-mail records report or confirm that the Veteran himself went ashore to Da Nang. While competent for the purposes for which they are given, when weighed against the USS Power deck logs, and the absence of any other evidence, supporting the assertion that the USS Power docked in Da Nang after its collision with the USS Wrangell or even that the Veteran went ashore for ship supplies after the collision, the Board must afford these e-mails and lay testimony less probative value in terms of necessary evidence to show that the USS Power docked in Da Nang Harbor, as claimed subsequent to its collision with the USS Wrangell in February 1969. Nor does the evidence show that the Veteran set foot in Vietnam. The testimony that the Veteran provided support from gunboats along the river's edge, is of limited probative value since he did not provide any dates of the alleged incident from which VA could attempt to find verification. 

It must be concluded then that the overall evidence does not show the USS Power docked in Da Nang subsequent to a collision with the USS Wrangell in early February 1969; or that at anytime the Veteran set foot on land in the Republic of Vietnam, or was otherwise exposed to an herbicide agent (to include Agent Orange) during service. 

Although the Veteran is not entitled to service connection under the presumptive provisions for exposure to herbicides, this does not preclude direct service connection based on exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042   (Fed. Cir. 1994). 

The Board notes that the Veteran's STRs are absent for any complaints, findings or diagnoses referable to a lung disorder, including lung cancer. The Veteran's lung cancer, diagnosed as small cell lung cancer, was first reported in late 1998, which is more than 29 years after his period of military service. There is also an absence of continuity of symptomatology during those intervening years after service ended, and before the relevant pathology is shown consistent with 38 C.F.R. § 3.303(b). This gap in time weighs against any continuity of symptomatology. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim); see also Walker, supra. There is no medical evidence or other evidence for that matter that shows lung cancer during the Veteran's military service or within the one year following service, for presumptive chronic disease purposes. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.307, 3.309. Nor is there any medical evidence that shows that his lung cancer is based on his claimed exposure to herbicides. 

For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for lung cancer, including as due to in-service herbicide exposure. And as the preponderance of the evidence is against this claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Accordingly, the appeal of this claim is denied.



ORDER

Service connection for lung cancer, including as due to in-service herbicide exposure is denied. 




____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs