Citation Nr: 1325023 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-31 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for throat cancer, to include as secondary to herbicide and asbestos exposure. 2. Entitlement to service connection for a psychiatric disorder, to include as secondary to a service-connected lumbar spine disability. 3. Entitlement to an evaluation in excess of 40 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction has since been transferred to the RO in Boston, Massachusetts. The issues of entitlement to service connection for a psychiatric disorder and entitlement to an increased evaluation for a lumbar spine disability 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. FINDINGS OF FACT 1. There is no corroborative evidence that the Veteran was exposed to herbicides during service. 2. The preponderance of the evidence is against a finding that throat cancer is related to service. CONCLUSION OF LAW The criteria for the establishment of service connection for throat cancer are not met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and 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. See 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. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties 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 notice requirements were met in this case by a letter sent to the Veteran in June 2008. This letter advised the Veteran of the information necessary to substantiate his claim and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in April 2011 for his throat cancer claim. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examination is factually informed, medically competent and responsive to the issues. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection 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. 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 order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A presumption also exists for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acne form disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma. All veterans who served in the landmass of Vietnam are presumed to have been exposed to herbicides. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). The presumption of herbicide exposure does not apply to Veterans with stationing in Cuba, or its surrounding waters. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Merits of the Claim The Veteran did not have service in Vietnam, but rather alleges that he was exposed to herbicides while stationed in Cuba. His August 2008 statement indicates that while stationed on a ship offshore Cuba, bombing exercises were performed. He alleges that he was allowed to go on land for recreation after bombing exercises and that he questioned the use of herbicides that he may have been exposed to. He also referenced possible exposure to herbicides through Project SHAD testing. The competent evidence of record does not demonstrate exposure to herbicide agents within the meaning of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307. A June 2008 response from the National Personnel Records Center stated that there was no evidence the Veteran was exposed to herbicides while in-service. In reviewing the Department of Defense list of locations for herbicide spray areas and test sites outside of Vietnam, there is no evidence of use of herbicides in Cuba. http://www.publichealth.va.gov/exposures/agentorange/outside_vietnam.asp#At_Sea. The Veteran's personnel records clearly reflect that he only had shipboard service on the USS VESOLE. The Board takes judicial notice that this ship did not participate in Project SHAD during this time period. Http://mcm.fhpr.osd.mil/ cb_exposures/project112_shad/shadassociatedShips.aspx. See generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Court has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). As the competent evidence of record does not support a finding that the Veteran was exposed to herbicides in-service, the presumption does not apply. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). The Board will also consider the claim on a direct basis, including the question of asbestos exposure and its alleged cause of the throat cancer. As discussed below, the preponderance of the evidence is against the claim and the appeal will be denied. The Board has reviewed the Veteran's service treatment records and observes that he was given an examination at entrance to service in April 1967. There were no throat problems noted and he specifically denied any ear, nose, or throat trouble. There are no throat problems noted during service and on separation in March 1968 again he denied throat problems and none were diagnosed. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The law also provides that even if a chronic condition is not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The Veteran was afforded a VA examination in April 2011. He reported serving on a ship where there were pipes covered in asbestos. However, and especially significant in light of the medical development of record, the Veteran also reported smoking for the past 40 years. He had been diagnosed with left true vocal fold squamous cell carcinoma in May 2006. He underwent radiation therapy and a laryngoscopy in February 2008. See also June 2008 statement of Dr. D.C. There has been no evidence of the carcinoma since 2006. The Veteran's current complaints were mild to moderate throat dryness and a mild raspy voice. The examiner noted that the Veteran did not serve in Vietnam and was not exposed to Agent Orange. He further opined that asbestos was not a known carcinogen for laryngeal squamous cell cancer. The examiner observed that it was therefore more likely than not that the primary carcinogen for laryngeal cancer was smoking. In addition to the April 2011 VA examination report, the Veteran's private physician offered a statement in June 2008. He stated that patients exposed to asbestos were at risk to develop a pleural malignancy called mesothelioma. In the Veteran's case, he developed cancer of the vocal cord, which was a condition associated with cigarette smoking. The Veteran has offered statements that he has throat cancer which he believes began as a result of active duty service. The Veteran is competent to comment that he has throat cancer, which appears to be in remission, and he is competent to report asbestos exposure, but he is not competent to then link the diagnosed condition to service. Service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The weight of the competent evidence does not attribute throat cancer to active duty. The Board has considered the April 2011 VA examiner's opinion that the Veteran's throat cancer is less likely than not related to service. The examiner reviewed the claims file, examined the Veteran, and offered an opinion and rationale that his throat cancer was more likely related to smoking. The examiner offered an opinion that discussed the fact that asbestos was not a known carcinogen for the type of cancer the Veteran had. This was also confirmed by June 2008 private physician who linked cancer to smoking. Accordingly, the Board assigns the April 2011 and June 2008 opinions high probative value and weight. The Board has considered the Veteran's statements that his throat cancer began in service or is related to asbestos exposure. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of determining the etiology of throat cancer, this falls outside the realm of common knowledge of a lay person. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the Veteran has offered only conclusory statements regarding the relationship between his in service incident and current throat cancer. Accordingly, these statements are assigned no probative value and weight. A VA examiner has reviewed service and post-service treatment records, considered reported history, examined the Veteran, and determined that throat cancer is not related to service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for throat cancer and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for throat cancer is denied. REMAND The Veteran contends that he has a psychiatric disorder, diagnosed as major depressive disorder, as secondary to his service-connected lumbar spine disability. He has stated that his service-connected lumbar spine disability has limited his ability to perform his duties as a steamfitter, which causes depression and anxiety. The Veteran will be afforded a VA examination to determine the nature and etiology of his psychiatric disorder - including the question of whether he has a depressive disorder that was caused or worsened by the back disorder. The Veteran has also indicated that his lumbar spine disability has worsened since his last VA examination. See e.g., June 2013 Informal Hearing Presentation. Five years have elapsed since the last VA orthopedic examination. Therefore, a new VA examination is warranted. See 38 C.F.R. § 3.159 (2012); see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran if he has any other medical or lay evidence relating to his claimed mental disorder and his back disorder that has not been submitted and ask him to submit it. Obtain all of the Veteran's outstanding VA treatment records. If unable to obtain any of the relevant records sought, notify the Veteran by identifying the specific records not obtained, explain the efforts used to obtain those records, and describe any further action to be taken with respect to the claim. 2. Schedule the Veteran for a VA psychiatric examination by a psychologist or psychiatrist. The entire claims file must be reviewed by the examiner in conjunction with the opinion. (a) The examiner must provide an opinion as to whether the Veteran meets the DSM-IV criteria for any current psychiatric disorder, to include major depressive disorder. (b) The examiner must provide an opinion as to whether any current psychiatric disorder had its clinical onset during active service. (c) The examiner must also provide an opinion as to whether the Veteran's service connected lumbar spine disability: i) CAUSED A MENTAL DISORDER INCLUDING DEPRESSION, OR; ii) PERMANENTLY WORSENED (AGGRAVATED) ANY CURRENT PSYCHIATRIC DISORDER. The examiner should note that the Veteran is service-connected for a lumbar spine disability as a residual from a stab wound and also the resulting scar. d) The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. (e) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. 3. The RO shall schedule the Veteran for a VA examination by a clinician with appropriate expertise in order to determine the current severity of the Veteran's lumbar spine disability. a) The claims folder, including all relevant medical records, and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims folder, the medical records obtained, and a copy of this remand. b) The examiner(s) must conduct any appropriate interviews and clinical testing to respond to the inquiries. c) The examiner must report the complete range of motion for the thoracolumbar spine. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. d) Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. THE EXAMINER MUST ASSESS THE ADDITIONAL FUNCTIONAL IMPAIRMENT DUE TO WEAKENED MOVEMENT, EXCESS FATIGABILITY, OR INCOORDINATION IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. e) The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. f) The examiner must describe all present neurological manifestations of the Veteran's lumbar spine disability, including nerve disorders of the lower extremities. The clinician must further clarify whether a diagnosis of intervertebral disc syndrome (IVDS) applies, and if so indicate the frequency and severity of any IVDS exacerbations and/or incapacitating episodes. g) The examiner must provide findings as to whether there is muscle spasm, guarding, or localized tenderness which does or does not result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. h) The examiner must also provide an opinion concerning the impact of the Veteran's lumbar spine disability on his ability to work to include whether the Veteran is unemployable because of his service-connected disability. i) The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. (j) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. 4. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs