Citation Nr: 1334791	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  09-39 753	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for squamous cell carcinoma of the right neck, claimed as due to herbicide exposure.

2. Entitlement to service connection for reactive lymphadenitis, claimed as due to herbicide exposure. 

3. Entitlement to service connection for a dental disability, claimed as secondary to squamous cell carcinoma of the right neck.

4. Entitlement to service connection for sebaceous cysts.

5. Entitlement to service connection for hemorrhoids. 

6. Entitlement to service connection for hypertension, claimed as secondary to the service-connected status-post myocardial infarction.




REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Donohue, Counsel


INTRODUCTION

The Veteran served on active duty from November 1968 to August 1970 with additional unverified service in the Army Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

Although the Veteran initially requested a personal hearing with a Veterans Law Judge, he withdrew his hearing request in August 2013.  His hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704(e) (2013).

The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for hypercholesterolemia. However, during the pendency of the appeal, the RO recharacterized the issue as service connection for residuals of a myocardial infarction and granted the claim.  See a February 2011 rating decision.  In a May 2013 Informal Hearing Presentation, the Veteran's representative stated that this amounted to "a full grant of the" Veteran's hypercholesterolemia claim.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, this issue has been resolved and is no longer in appellate status.

The issue of entitlement to service connection for hypertension, claimed as secondary to the service-connected status-post myocardial infarction, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 

2. The Veteran does not have a disease that is presumed to be service connected in veterans exposed to Agent Orange. 

3. Squamous cell carcinoma was not manifest during service or within one year of separation.  Squamous cell carcinoma is not attributable to service. 

4. Lymphadenitis was not was not manifest during service and is not attributable to service.  

5. A dental disability has not been shown to have been caused, or aggravated, by a service-connected disability.

6. Sebaceous cysts did not manifest in service and are not attributable to service, ACDUTRA or INACDUTRA.

7. Hemorrhoids did not manifest in service and are not attributable to service, ACDUTRA or INACDUTRA.  



CONCLUSIONS OF LAW

1. Squamous cell carcinoma was not incurred in or aggravated by service and a malignant tumor may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

2. Lymphadenitis was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).

3. A dental disability is not secondary to a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2013).  

4. Sebaceous cysts was not incurred in or aggravated by service, ACDUTRA, or INADCUTRA. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).

5. Hemorrhoids was not incurred in or aggravated by service, ACDUTRA, or INADCUTRA. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  

Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of 

the evidence must be against the claim.  See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000).  

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (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.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

In the present case, VA issued a VCAA notice letter to the Veteran in December 2007; prior to the initial adjudication of his claim.  This letter informed the Veteran of what evidence was required to substantiate his service connection claims on a direct basis and of his and VA's respective duties for obtaining evidence.  

The December 2007 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess.  

While the December 2007 notice letter did not inform the Veteran of what the evidence must show to establish service connection on a secondary basis, the Board finds that there is no prejudice in proceeding with adjudication of the case.  In this regard, the Veteran demonstrated actual knowledge of what the evidence must show when he argued that his dental condition was caused by treatment for his squamous cell carcinoma.  See the March 2009 notice of disagreement; the August 2013 Informal Hearing Presentation; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO). 

In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA and the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision.

The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 

In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims.  

In particular, the record contains the Veteran's service treatment records, lay statements and private treatment records. 

The Board notes that the Veteran authorized VA to obtain his private treatment records from the University of Florida Shands Cancer Center.  While VA submitted an initial request for these records - and a second follow up request several months later - records from this facility have not been associated with the claims file.  The record also reflects that the Veteran was notified that these records were missing and that he mailed a personal letter to his health care provider requesting that his records be released.  Accordingly, while these treatment records have not been obtained, VA has made reasonable efforts to obtain the Veteran's records and has satisfied its duty to assist the Veteran in this regard. 

The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record.  

The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).

The Board observes that the Veteran has not been accorded a VA compensation and pension examination with regard to his claims, and that medical opinions regarding the etiologies of his claimed disabilities have not been obtained. However, for reasons explained immediately below, such examinations and medical opinions are not necessary.

Under McLendon v. Nicholson, 20 Vet.App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

As will be discussed below, there is already medical evidence that the Veteran has been diagnosed with squamous cell carcinoma, lymphadenitis, hemorrhoids, and sebaceous cysts, and is presumed to have been exposed to herbicides while serving in the Republic of Vietnam. The first and second McLendon elements have therefore been met. With respect to the third factor, association with service, the Court has stated that this element establishes a low threshold and requires only that the evidence 'indicates' that there 'may' be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon, supra.

In that regard, the evidence of record does not demonstrate an association between the Veteran's presumed herbicide exposure and his diagnosed disabilities.  The Board has carefully considered the Court's language in McLendon that the threshold for showing this association is a low one. However, the Court's language makes it clear that there is in fact a threshold.  Here, the Veteran's service treatment records do not include a diagnosis or treatment for these disabilities and the record is also lacking any evidence of a nexus. 

Only the Veteran's contentions provide any suggestion of such association between his disabilities and service, and Board does not find the Veteran's contentions to rise to the level of the 'indication of an association' referred to in 38 U.S.C.A. § 5103A or in McLendon.  However, if a Veteran's mere contention, standing alone, that his claimed disability is related to his service or to a service connected disability is enough to satisfy the 'indication of an association,' then that element of 38 U.S.C.A. § 5103A is meaningless. An interpretation of a statute that renders part of the statutory language superfluous is to be avoided. See Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) ('canons of construction require us to give effect to the clear language of statute and avoid rendering any portions meaningless or superfluous'). It is clear that more than a mere contention is required under McLendon.

In addition, while the Veteran expressed confusion in his substantive appeal as to why squamous cell carcinoma has not been recognized as a disease associated with exposure to herbicides agents when soft tissue sarcoma has been granted such recognition, he has not argued that his squamous cell carcinoma is a soft tissue sarcoma and there is no evidence which suggests that this is the case. (With few exceptions, soft-tissue sarcomas are presumed to be caused by exposure to herbicides. 38 C.F.R. § 3.309(e).)  Therefore a remand to determine whether the Veteran's basal cell carcinoma is a soft tissue sarcoma is not warranted. See Vacek v. Shinseki, No. 10-3703 (June 2012) (HAGEL, Judge); holding that when a veteran 'has offered nothing more than a mere assertion that '[t]he medical profession may consider [his] basal cell carcinoma to be a soft[-]tissue sarcoma' VA is not required to go on a fishing expedition based on bald assertions of this nature.'); see Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992).

Under the circumstances presented in this case, a remand ordering a medical examination would serve no useful purpose. Accordingly, the Board has determined that a medical opinion is not necessary in the instant case. 

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2013).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  He has declined to exercise his option of a personal hearing.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained. 

II. Law and Regulations

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  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 or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2013).

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

Certain chronic disabilities, to include malignant tumors, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a '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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

A veteran who, during active military, naval, or air 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, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. '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. § 3.307(a)(6)(iii).

The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 

The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002).  Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120   (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). 

Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet.App. at 448.  

Under section 3.310(b) of VA regulations, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b).

III. Analysis 

The Veteran is seeking service connection for squamous cell carcinoma, reactive lymphadenitis, dental problems, hemorrhoids and seabaceous cysts.  While cognizant that the Veteran has been awarded the Bronze Star Medal, he has not alleged that any of his disabilities are the result of combat with the enemy.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable.

	A. Squamous Cell Carcinoma 

The Veteran contends that his squamous cell carcinoma of the neck is a result of his exposure to Agent Orange while serving in the Republic of Vietnam.  As the Veteran's DD-214 shows that he served in the Republic of Vietnam from April 1969 to August 1970, he is presumed to have been exposed to Agent Orange.

The record reflects that the Veteran has been diagnosed with squamous cell carcinoma which arose in a branchial cleft cyst.  See, e.g., a February 2001 fine needle aspiration report.  The Board notes, however, that squamous cell carcinoma is not included in the diseases subject to presumptive service connection due to herbicide exposure for veterans who served in Vietnam during the Vietnam era. 

In a March 2009 statement, the Veteran argued that service connection was warranted for his carcinoma on a presumptive basis because the disease arose in a branchial cleft cyst and "branchial relates to the trachea and cancer of the trachea is explicitly identified under VA's respiratory cancers associated with exposure to Agent Orange."  

Upon review, it appears that the Veteran is confusing branchial with bronchial.  The Board observes that bronchial "pertain[s] to the bronchus" or "any of the later air passages of the lungs." See Dorland's Illustrated Medical Dictionary, 252, 254 (30th Ed. 2003) (cited for definitional purposes only.)  In contrast, a branchial cleft cyst is "a cyst arising in the lateral aspect of the neck, from epitheial remnants of a branchial cleft."  Id at 462.

To the extent the Veteran contends that he developed a respiratory cancer, the Board finds that he is not competent to make such a determination.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, i.e., the nature of his diagnosed cancer, falls outside the realm of common knowledge of a lay person.  See, e.g., Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer).  Furthermore, while the Veteran is competent to report information conveyed to him by his physician, he has not alleged that any health care provider has stated that he had respiratory cancer.  Instead, the Veteran's assertions are based on his own interpretation of the above-mentioned February 2001 fine needle aspiration report.

The Board also pauses to note that the Veteran has not alleged, and the record does not reflect, that his squamous cell carcinoma has been classified as a soft tissue sarcoma. 

Therefore, although the Board acknowledges the Veteran's presumed Agent Orange exposure during service, service connection for squamous cell carcinoma on a presumptive basis is not warranted.  As a result, the remaining consideration before the Board is whether service connection may be warranted on a direct basis, or a presumptive basis for a malignant tumor manifest within one year after service.

A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis for cancer and the Veteran has not alleged otherwise.  During his August 1970 separation examination, the Veteran's neck was examined and found to be clinically normal. 

A review of the post-service medical evidence shows that the Veteran was diagnosed with squamous cell carcinoma in 2001, three decades after he separated from service.  Similarly, in his October 2007 VA Form 21-526, the Veteran reported that his cancer began in February 2001. 

The Veteran's medical records do not indicate that squamous cell carcinoma existed in service or for many years thereafter. Thus, the presumptive provisions of 38 C.F.R. § 3.309(a) do not apply.  Similarly, as a malignant tumor was not noted in service, service connection may not be granted based on chronicity or continuity under § 3.303(b).

The record does not include any competent and credible evidence of a nexus between the Veteran's squamous cell carcinoma and his active duty service, to include his presumed exposure to herbicides therein. 

The Board has considered the Veteran's statements that his cancer is related to his active duty service.  As noted above, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent.  See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n.4.  

In this case, the Veteran's statements as to the relationship between his cancer and service are testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship.  His allegations are of the type that the courts have found to be beyond the competence of lay witnesses.  Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet.App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet.App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes 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").  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  

Accordingly, while the Board has considered the Veteran's statements that his cancer is the result of his active duty service, to include his presumed exposure to Agent Orange therein, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a competent opinion on the etiology of his cancer.  Such a determination requires medical expertise. Thus, the Veteran's opinion that his cancer is the result of his active duty service is not a competent medical opinion.  There is also no medical evidence of nexus.

As there is no competent and credible evidence of a relationship between the Veteran's current disability and his active duty service, the Veteran has failed to meet his burden as to the nexus element and his claim for service connection for squamous cell carcinoma must be denied.

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet.App. at 55-57.

	B. Reactive Lymphadenitis

As an initial matter, the Board notes that lymphadenitis is the "inflammation of one or more lymph nodes, usually caused by a primary focus of infection elsewhere in the body."  See Dorland's Illustrated Medical Dictionary, 1074 (30th Ed. 2003) (cited for definitional purposes only.)  This is not a chronic disease within the meaning of the general compensation law. 38 U.S.C.A. § 1101; 38 C.F.R. § 38 C.F.R. § 3.303(b).

The Veteran contends that he developed lymphadenitis as a result of his in-service exposure to Agent Orange. As discussed above, the Veteran is presumed to have been exposed to herbicides while on active duty based on his service in the Republic of Vietnam. 

The record reflects that the Veteran was diagnosed with reactive lymphadenitis in a February 2001 pathology report.  Since lymphadenitis is not included in the diseases subject to presumptive service connection due to herbicide exposure for veterans who served in Vietnam during the Vietnam era, service connection may not be granted on a presumptive basis.

Accordingly, the remaining consideration before the Board is whether service connection may be warranted on a direct basis.

A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis for lymphadenitis and the Veteran has not alleged otherwise.  During his August 1970 separation examination, the Veteran's lymphatics were examined and found to be clinically normal.

The Board observes that the Veteran has stated that his disability first began in February 2001, three decades after he separated from service.  See the October 2007 claim.  In this capacity the Board notes that the above-mentioned February 2001 pathology report is the earliest diagnosis of lymphadenitis in the record.

The record also does not include any competent and credible evidence of a nexus between the Veteran's lymphadenitis and his active duty service, to include his presumed exposure to herbicides therein. 

The Board has considered the Veteran's statements that his disability is related to his active duty service.  As noted, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent.  See Davidson, supra; Kahana, supra. 

In this case, the Veteran's statements as to the relationship between his lymphadenitis and service are testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship.  His allegations are of the type that the courts have found to be beyond the competence of lay witnesses.  See, e.g., Jandreau, supra. 

Accordingly, while the Board has considered the Veteran's statements that his lymphadenitis is the result of his active duty service, to include his presumed exposure to Agent Orange therein, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a competent opinion on the etiology of his lymphadenitis.  Such a determination requires medical expertise. See Jandreau, supra.  Thus, the Veteran's opinion that his disability is the result of his active duty service is not a competent medical opinion.  There is also no medical evidence of nexus.

As there is no competent and credible evidence of a relationship between the Veteran's current disability and his active duty service, the Veteran has failed to meet his burden as to the nexus element and his claim for service connection for lymphadenitis must be denied.

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet.App. at 55-57.

	C. A Dental Disability

The Veteran has not contended that he had a dental disability that is directly due to service, and his service treatment records are completely negative for any complaints, treatment, or finding of a dental disability.  Instead, the Veteran has argued that he underwent a partial mandibulectomy as a result of treatment for his squamous cell carcinoma.  See, e.g., the May 2013 Informal Hearing Presentation.  Accordingly, the Board's analysis will only address the matter of secondary service connection. 

While a claim that a service connected disorder caused or aggravated a non-service-connected disorder could be a viable one, here, the Board has found that service connection is not warranted for the Veteran's squamous cell carcinoma. In the absence of service connection for his carcinoma, service connection cannot be established for a dental disability on a secondary basis as a matter of law. See 38 C.F.R. § 3.310(a) (providing for service connection for a disability only where such disability is proximately due to or the result of a disease or injury that is already service-connected); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

For the foregoing reasons, the claims for service connection for a dental disability as secondary to squamous cell carcinoma, must be denied as a matter of law.  The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d at 1364; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).




	D. Sebaceous Cysts and Hemorrhoids. 

The Veteran is seeking service connection for sebaceous cysts and hemorrhoids.  In his October 2007 VA Form 21-526, the Veteran stated that these conditions developed in May 1980, after he separated from active duty service.  

As an initial matter, the Board notes that neither of these disabilities are chronic diseases within the meaning of the general compensation law. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.303(b).

Upon review, service treatment records from the Veteran's period of active duty service do not document any complaints, treatment, or diagnosis for cysts or hemorrhoids.  During his August 1970 separation examination, the Veteran's skin, anus and rectum were examined and found to be clinically normal. 

The Board observes that the Veteran has not alleged that his sebaceous cysts and hemorrhoids developed while he was on active duty.  Instead, as noted above, the Veteran stated that these disabilities began in May 1980.  

The record includes a June 1976 self-report of medical history that the Veteran completed as part of a quadrennial examination for the US Army Reserve.  In this report, the Veteran indicated that he had, or previously had, cysts.  A physician reviewing the Veteran's report of medical history documented that the Veteran "stated no complaints today [-] current health good." A physical examination of the Veteran's skin was clinically normal.

The Veteran's next quadrennial examination took place in May 1980.  At this time the Veteran again reported that he had cysts, but also indicated that he was unsure if he had piles or rectal disease.  After reviewing the Veteran's statements, a physician noted that the Veteran has sebaceous cysts on his chest and occasional hemorrhoids. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA), or injury incurred while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101 (24) 106, 1110 (West 2002).

The Veteran does not contend that he developed cysts or hemorrhoids during a period of ACDUTRA, and there is no evidence in the record that the Veteran was serving a period of ACDUTRA when he first complained of having cysts or hemorrhoids.  Since cysts and hemorrhoids are diseases and not injuries, service connection is would not be warranted if they developed during a period of INACDUTRA, although there is no evidence suggesting that this is the case.  

The Veteran is certainly competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet.App. 465, 469 (1994).  However, in this case, the Veteran has not stated that he developed cysts or hemorrhoids during a period of ACDUTRA and the record does not indicate otherwise.

The most probative evidence of record, then, shows that the Veteran did not manifest sebaceous cysts or hemorrhoids during a period of active duty or ACDUTRA. As such, the evidence preponderates against his claim, and it must be denied.

ORDER

Service connection for squamous cell carcinoma of the right neck is denied.

Service connection for reactive lymphadenitis is denied. 

Service connection for a dental disability is denied. 

Service connection for sebaceous cysts is denied.

Service connection for hemorrhoids is denied. 


REMAND

For the following reasons, the Board finds that the issue of entitlement to service connection for hypertension must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist.

The Veteran is seeking service connection for hypertension as secondary to his service-connected status-post myocardial infarction with blockage of the central artery and heart damage.

Upon review, the Veteran's private treatment records include a diagnosis of hypertension status-post myocardial infarction.  See a September 2006 treatment record.  The Veteran was also noted to have labile hypertension when seeking emergency treatment for substernal chest pain prior to having a myocardial infarction.  See a July 1998 private discharge note. 

Consequently, the issue of service connection for hypertension, as secondary to the service-connected heart disability, contains medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).

These questions concern whether the Veteran's hypertension was caused or aggravated by his service-connected heart disability. See McLendon 20 Vet.App. 79); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).

Accordingly, the issue of service connection for hypertension, as secondary to the service-connected heart disability, is REMANDED for the following action:

1. The RO/AMC should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all health care providers who have treated him for his hypertension. 

The RO should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder.

2.  Then, the RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension.  The claims folder must be provided to the examiner for review. All necessary testing should be conducted. 

Following examination and review of the claims folder, the examiner is requested to provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the diagnosed hypertension was caused or aggravated (permanently worsened beyond normal progression) by his service-connected heart disability. 

In light of the recent CAVC decision in King v. Shinseki, the VA examiner should also provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's hypertension is due to his in-service exposure to herbicides, including Agent Orange.  

Complete rationale should be provided for all opinions expressed. 

3. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review

The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs