Citation Nr: 1334340	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  07-20 942A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

J. Meawad, Counsel







INTRODUCTION

The Veteran, served on active duty in the U.S. Navy from October 1965 to October 1969, including during the Vietnam War.  He died in May 2001.  The Appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In June 2010, the Appellant appeared at hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the file.

This case was previously before the Board in September 2010, when it was remanded for further development.

In September 2011, the Board denied the Appellant's claim and she appealed the decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court").  In July 2012, the Court granted a Joint Motion for Remand and remanded the matter to the Board for action consistent with the July 2012 Court order.








FINDINGS OF FACT

1.  The Veteran died in May 2001, and the cause of death listed on the death certificate was cancer at the base of the tongue.

2.  At the time of his death, the Veteran did not have a service-connected disability.

3.  Although the Veteran served in the U.S. Navy during the Vietnam era, the Veteran did not serve within the land borders, including the inland waters, of Vietnam during the Vietnam era and actual exposure to Agent Orange is not shown.

4. The fatal cancer of the tongue and tonsil was not affirmatively shown to have been present during service; the fatal cancer as a chronic disease was not manifested to a compensable degree within one year from the date of separation from service in 1969; and the fatal cancer, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service. 


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013).







The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 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.  Dingess v. Nicholson, 19 Vet. App. 473   (2006). 

In a claim for dependency and indemnity compensation, including the cause of death, notice under 38 U.S.C.A. § 5103(a) must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected.  Hupp v. Nicholson, 21 Vet. App. 342 (2007). 





The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre- and post- adjudication VCAA notice by letters, dated in April 2006 and in May 2007.  The Appellant was notified of the type of evidence that was required to substantiate the claim for the cause of death, namely, evidence that the Veteran's cause of death was the result of an incident, injury, or disease occurring in service. While the Appellant was not specifically advised how to establish service connection based on an already service-connected disability, there was no prejudice to the Appellant because the Veteran did not have a service-connected disability at the time of his death. The notice included the evidence necessary to establish service connection based on exposure to certain herbicides, including Agent Orange.

The Appellant was also notified that VA would obtain service records, VA records and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records or with her authorization VA would obtain any such records on her behalf. 

As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007) (notice regarding elements of a claim of service connection for the cause of the Veteran's death, where the Veteran did not have any service-connected disability at the time of death). 


To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The procedural defect was cured as after the RO provided content-complying VCAA notice the claim was readjudicated, as evidenced by the supplemental statement of the case in May 2011.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

Duty to Assist

In July 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) on the question of a causal relationship between the Veteran's cause of death and service.  As the VHA expert considered the Veteran's medical history and described the disability in sufficient detail and provided a rationale to support the conclusions reached in the opinion, the Board finds that the VHA opinion is adequate to decide the claim of service connection for the cause of the Veteran's death.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one).

The Appellant and her representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument.  The Appellant responded in October 2013.

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Principles of Service Connection for Cause of Death

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110. 

When any veteran dies from a service-connected disability, the veteran's surviving spouse is entitled to dependency and indemnity compensation.  38 U.S.C.A. § 1310. 

Claimed Exposure to Agent Orange

Exposure to certain herbicide agents, include one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975).  38 U.S.C.A. § 1116(f).  

For any Veteran, who during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975), there is a presumption of service connection for certain specific types of cancer, including cancers of the lung, bronchus, larynx, or trachea, even if there is no record of such disease during service.  38 U.S.C.A. § 1116(a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease.  38 U.S.C.A. § 1116(b)(1).


VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides, including Agent Orange, used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 41442-41449 and 57586-57589 (1996); 67 Fed. Reg. 42600- 42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007); Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). 

Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

The United States Court of Appeals for the Federal Circuit has held that VA's policy of extending the presumption only to those Veterans who served on the ground or on the inland waterways of Vietnam was a reasonable and valid statutory interpretation.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  






Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Evidence

The service personnel records show that the Veteran served in the U.S. Navy during the period of the Vietnam era, including service aboard the U.S.S. Stribling, which was in the Gulf of Tonkin from March to July 1969.  The Veteran was a radar man.   



The Veteran was authorized to wear the National Defense Service Medal in July 1966, and the Vietnam Service Medal and the Republic of Vietnam Campaign Medal as a reflection of his service in the contiguous water of Vietnam. 

Deck logs of the U.S.S. Stribling for March, April, and July 1969 show that the ship was operating in the Gulf of Tonkin with assignments in the area of Piraz Station and Yankee Station. The primary purpose of the ship was to provide Naval Gun Fire Support (NGFS) for ground troops on shore. The ship also engaged in support missions for amphibious landing crafts and in search and rescue missions for downed pilots. 

The records show that the ship was actively involved in firing missions on targets on shore, including at pre-designated, pre-numbered targets, at the request of ground units in call-for-fire missions, and at targets designated by shore spotters and gun fire support spotters. During the time period between March and July 1969, the ship occasionally received small craft along side, including swift boats, received refueling, rearming and replenishments ships, and anchored for a day and a half in Da Nang Harbor. The deck logs also show the receipt of mail dropped from helicopters flying over the deck, but do not show that landing parties or other crew members were sent ashore or were retrieved from shore, either by boat or helicopter. While there are two notations regarding passengers picked up, one by helicopter and one by small boat, there is no record of passengers returning to shore. 

The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of a tongue or tonsil abnormality or of cancer.  Also, there is no record of a shrapnel injury to the Veteran's hand or wrist in Vietnam.  Before the Veteran deployed to the Western Pacific, on entrance examination, there was two to three inch scar on the right hand.  In March 1967, a scar on the right wrist was noted. No other scars were noted including on separation examination. 


After service, private medical records show that the Veteran first complained of a growth on his neck in July 2000, which was diagnosed as cancer. While the death certificate lists the cause of death as cancer of the base of the tongue, other records show the primary site of the cancer was the left tonsil.  During the course of the disease, cancer spread to head and lungs. In February 2001, a pathology report showed squamous cell carcinoma in the lung.  The report showed that the cancer was consistent with metastatic carcinoma from the primary site, but a primary lung cancer could not be completely excluded.  The records show that Veteran had been a heavy smoker, one and one-half packs per day, and a heavy drinker until some seven to eight years prior to the diagnosis of cancer.

The Veteran died in May 2001 after a long and painful battle with cancer. 

In April 2006, the RO requested information from the service department regarding the Veteran's service.  In May 2006, the National Personnel Records Center reported that it could not be determined whether the Veteran served in-country in Vietnam.  The record showed only that he served aboard the U.S.S. Stribling, which was in the official waters of Vietnam from March 20, 1969, to April 25, 1969, from May 4, 1969, to July 2, 1969, and from July 12, 1969, to August 13, 1969.

The Appellant has submitted documents in support of her claim, including copies of a decision by the United States Court of Appeals for Veterans Claims (Veterans Court), copies of Board decisions and copies of an internet article by a Vietnam Veteran.  The Veterans Court's decision in Haas v. Nicholson, 20 Vet. App. 257   (2006) addressed the question of how the phrase "service in the Republic of Vietnam" should be interpreted, and determined that receipt of the Vietnam Service Medal was sufficient to meet that definition.




The Veterans Court held that a service member who served aboard ship in the vicinity of the land mass of Vietnam (also known as "blue water Veterans") were entitled to the presumptions of exposure to certain herbicides, including Agent Orange, and of service connection for certain diseases associated with exposure to certain herbicides, including Agent Orange. 

The Haas decision by the Veterans Court was subsequently overturned by the United States Court of Appeals for the Federal Circuit  (Federal Circuit) in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), which upheld VA's requirement that a Veteran must have actually set foot within the land borders of Vietnam or served on the inland waterways in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to certain herbicides, including Agent Orange.  The decision of the Federal Circuit is binding on the Veterans Court and on VA, including the Board. 

The Board decisions submitted by the Appellant include one which granted service connection for the cause of death of squamous cell carcinoma of the head and neck, based on a finding that it was as likely as not the result of exposure to certain herbicides, including Agent Orange, in Vietnam. In the case cited, there was no question that the Veteran had actual or presumptive exposure to certain herbicides in service, rather, the question was whether the fatal cancer was attributable to exposure to certain herbicides, including Agent Orange.  In the other Board decision cited, the Board granted service connection for carcinoma of the tongue and floor of the mouth, metastasizing to the larynx, based on actual or presumed exposure to herbicides.  Again, there was evidence that the Veteran served on land in Vietnam, such that the Veteran's exposure to certain herbicides was not disputed.

The Appellant has also submitted several statements from some of the Veteran's treating physicians regarding the nature of the fatal cancer. 


In June 2007, a specialist in facial cancer noted that the primary origin of the Veteran's cancer was uncertain, possibly either the tonsil or the base of the tongue, somewhere in the upper aerodigestive tract. The physician noted that etiological factors for cancers of the aerodigestive system usually are associated with tobacco and alcohol use, but Agent Orange had been implicated in aeromucosal cancers up to and including the larynx for those who served in Vietnam. The physician further noted that the Veteran's cancer was diagnosed approximately 30 years after service and presumed exposure to Agent Orange. He stated that exposure to Agent Orange over several months would increase the possibility that this was an additional causative agent for the Veteran's cancer.

In June 2007, a radiation oncologist noted that the Veteran's large neck node was a carcinoma metastatic from a likely small, tonsillar carcinoma, resulting in death. The oncologist stated that he had been told the Veteran served in the military and was at risk for Agent Orange exposure.  Based on this, the oncologist stated that it was more likely than not that the carcinoma could have been incurred while in the service especially if there was an association between herbicide exposure and carcinomas of the oral, oropharyngeal, head and neck, or respiratory regions.

In June 2007, another oncologist stated that the fatal disease was one that was commonly associated with a history of tobacco and alcohol use, and it appeared plausible that exposure to Agent Orange may also have contributed to neoplastic development.

In June 2007, a head and neck surgeon stated that since the Veteran was in Vietnam he was at least at risk for Agent Orange exposure.  Based on this, the surgeon stated that it was more likely than not that the squamous cell carcinoma could have been incurred while in the service and noted that it was consistent with squamous cell carcinomas related to Agent Orange exposure.


The internet article submitted discussed the experiences of a Vietnam Veteran who contracted squamous cell carcinoma in the throat and was awarded service-connection due to exposure to Agent Orange.  The Board notes that the Veteran who wrote the article described service on land in Vietnam as part of a construction battalion, and that there was no indication that his actual or presumed exposure to herbicides was ever in question. 

In June 2010, the Appellant's representative argued that the Gulf of Tonkin was brown water because many rivers of Vietnam entered into the Gulf. 

The Appellant testified to the nature and progression of the Veteran's symptoms, including the timeline related to his cancer treatment and eventual death. She felt that his cancer was respiratory related, although occurring in the tonsil and at the base of the tongue. She indicated that the length of time between the Veteran's service in Vietnam and his development of cancer was consistent with cases she had studied where the cancer was found to be the result of exposure to herbicides. She testified that her husband told her his work as a radio control room man, directing missile file into Vietnam, sometimes involved him going on land to plot coordinates and direct the missiles and he was given the name "Hope Chest" and that the Veteran sustained a wrist injury from shrapnel while trying to get onto a helicopter and he was one of the few that survived the incident. 

The representative stated that the Veteran had served as forward air controller for the aircraft carriers in the Gulf of Tonkin and that the Veteran engaged in covert operations, which would not be of record.

In July 2013, a VHA expert in hematology and oncology reviewed the Veteran's medical history regarding cancer of the tongue and tonsil and the assertion that the Veteran was exposed to Agent Orange, in service, which caused the cancers.  


In answer to the question of whether either cancer of the tongue or tonsil is considered a cancer of the lung, bronchus, larynx or trachea, the VHA expert stated that while respiratory cancers and cancers of the head and neck share some risk factors, they are categorized separately.  The VHA expert expressed the opinion that it was less likely than not that the Veteran's cancer was caused by exposure to Agent Orange.  As support for the opinion, the VHA expert explained that squamous cell carcinoma of the tonsil was not currently considered a disease associated with Agent Orange and he was not aware of additional evidence to suggest a definitely association between Agent Orange and squamous cell carcinoma of the tonsil.  The VHA expert also stated that the Veteran had an extensive history of smoking cigarettes and alcohol use, both of which were known significant risk factors of the development of squamous cell carcinoma of the tonsil. 

Analysis

The Appellant asserts that the Veteran's fatal cancers were related to his exposure to Agent Orange in service.  

The service treatment records are entirely negative for evidence of cancers of the tongue and tonsil.  Based on the service treatment records alone cancers of the tongue and tonsil did not have onset in service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

As there is no competent evidence either contemporaneous with or after service that cancers of the tongue and tonsil was noted during service, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply.   




In this case, the earliest evidence of cancers of the tongue and tonsil was in July 2000, about 31 years after the Veteran's discharge from service, well beyond the one-year presumptive period after service for manifestation of a cancer as a chronic disease under 38 U.S.C.A. §§ 1112 and 1137 and 38 C.F.R. §§ 3.307, 3.309. 

Except for exposure to herbicides, which is addressed separately, there is no competent evidence that the Veteran's cancers of the tongue and tonsil first documented after service beyond the one-year presumptive period pertaining to a chronic disease, is otherwise related to an injury, disease, or event in service.  38 C.F.R. § 3.303(d). 

With regard to medical opinions the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, whether the opinion is the product of reliable principles, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  A mere conclusionary opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions.  Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  

The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings; the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).  



The thoroughness and detail of the opinion are also among the factors for assessing the probative value of a medical opinion.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000). 

The Appellant's central claim is that the Veteran's fatal cancers are attributable to his exposure to herbicides, Agent Orange, during service.  The Appellant attributes the Veteran's fatal cancer to exposure to certain herbicides, including Agent Orange, during service in Vietnam. She has provided written statements and sworn testimony regarding what the Veteran told her regarding his service in Vietnam. She stated that the Veteran three tours of duty in Vietnam and observed that his DD Form 214 showed 3 years, 7 months, and 19 days of foreign or sea service and that he worked as a Radio Control Room Man, coordinating missile locations. He had told her that he was stationed on both the Stribling and "the main land," plotting coordinates on board ship and spotting them on the main land. 


The Veteran had described the primary mission of his ship as bombarding the shoreline and participating in search and rescue missions for downed pilots. He also had stated that he suffered a wrist injury from shrapnel while retreating onto a helicopter during a land mission.

The factual and legal questions presented are: 1) whether the Veteran's death was the result of a disease or disability incurred in or aggravated by his military service; and, 2) whether there is evidence of exposure to certain herbicides, including Agent Orange, to trigger the presumptive service connection provisions of 38 C.F.R. §§ 3.307 , 3.309. 

On the basis of the service treatment records alone, the fatal cancer was not affirmatively shown to have had onset during service and service connection is not established under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) . 

After service, the first evidence of cancer was in July 2000, 30 years after the Veteran's separation from service, which is well beyond the one-year presumptive period for cancer as a chronic disease under 38 C.F.R. § 3.307(a)  and 38 C.F.R. § 3.309(a).  

On the basis of the evidence of record, there is no competent or credible evidence either contemporaneous with or after service that cancer was noted during service, and the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply.  See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under the regulation creating a presumption of service connection for ceratin chronic diseases manifesting during service and then again at any later date, applied to a chronic diseases enumerated in the only regulation listing named chronic diseases and is noted in service, 38 C.F.R. § 3.309(a)).   

As for service connection based on the fact that cancer was first diagnosed in July 2000, applying 38 C.F.R. § 3.303(d) , there is no evidence, lay or medical, to suggest any causative link between an injury, disease, or event in service and his fatal cancer, other than that pertaining to alleged exposure to certain herbicides. As such, service connection under 38 C.F.R. § 3.303(d) is not warranted.

As for the question of exposure to certain herbicides, including Agent Orange, in Vietnam, the statutory and regulatory provisions, governing such exposure, require the physical presence of a Veteran on the ground in Vietnam or in the "brown water" rivers of Vietnam in order for the presumption of exposure to apply, and the Federal Circuit has upheld VA's statutory and regulatory authorities. Haas, 525 F.3d 1168. 


In this instance, there is no official record which indicates that the Veteran had such a physical presence in the Republic of Vietnam.  There is evidence that the Veteran served aboard the U.S.S. Stribling in the Gulf of Tonkin and participated in NGFS missions bombarding the shore. The Veteran was authorized to wear the Vietnam Service Medal and the Republic of Vietnam Campaign Medal, although in both instances the record merely cites the basis for the award as his presence aboard ship in the contiguous waters of Vietnam.  The Veteran's service personnel records and service treatment records contain no evidence that the Veteran was ashore in Vietnam or that the ship was in the inland waterways of Vietnam. The scar on the Veteran's wrist which is cited as having been a shrapnel injury is shown in the service treatment records in 1967, two years before the Veteran's ship was in the Gulf of Tonkin. 

The Stribling's deck logs do reflect the nature of the ship's mission as being the same as described by the Veteran, but do not show any evidence that the shore spotter or gun fire support spotter mentioned were dispatched from or returned to the ship at any time. Nor does the record reflect that any personnel went ashore during the brief period the ship was anchored in Da Nang harbor, which is not the equivalent of being moored at a pier. The record also does not show that the Stribling was ever present in the inland waterways or "brown water" of Vietnam.

While the Appellant has testified to what the Veteran told her of his service, the Appellant is not competent to testify that the Veteran was actually in Vietnam or the inland waterways of Vietnam based on her own personal knowledge. As the Appellant was not present during the Veteran's military service, she has no first-hand knowledge of the circumstances, and her testimony regarding the circumstances of his service is not competent evidence.




The Board also rejects the opinions of several private physicians, who relied on the fact that the Veteran served in Vietnam, which he did not.  As the medical opinions are based upon an inaccurate factual premise, the opinions have no probative value, that is, the opinions do not tend to prove a material fact, that is, the Veteran was exposed to Agent Orange in Vietnam.  Reonal v. Brown, 5 Vet. App. 458, 461   (1993). 

Also as already alluded to the Board decisions and the internet article are not probative either because the evidence does not tend to prove a material fact, that is, the Veteran was exposed to Agent Orange in Vietnam. 

To the extent the Appellant relates the fatal cancer to exposure to Agent Orange, as there is no competent or credible evidence that the Veteran was in Vietnam or in the inland waterways of Vietnam, as neither actual exposure to Agent Orange under Combee nor presumptive exposure to Agent Orange is shown, the Appellant's opinion is not probative as it does not tend to prove a material fact, that the Veteran was exposed to Agent Orange. 

As for the opinion of the VHA expert, the VHA expert explained that the Veteran's fatal cancers were not the kind listed as a disease associated with Agent Orange.  The VHA expert distinguished cancers of the lung, bronchus, larynx or trachea, which are among the diseases presumed associated with Agent Orange expose from cancer of the tongue or tonsil.  In addition, the VHA expert stated that the Veteran had an extensive history of smoking cigarettes and alcohol use, both of which were known significant risk factors of the development of squamous cell carcinoma of the tonsil.





As the Veteran was not exposed to Agent Orange, service connection for the fatal cancers on a presumptive basis due to exposure to herbicides in Vietnam is not established under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

For the above reasons, the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).


ORDER

Service connection for the cause of the Veteran's death is denied.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs