Citation Nr: 1641516 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 12-20 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for multiple myeloma, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Haddock, Counsel INTRODUCTION The Veteran had active service from June 1972 to April 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the San Diego, California Department of Veterans Affairs Regional Office (RO). The Board notes that when he filed his March 2011 notice of disagreement, the Veteran initiated appeals on the issues of the ratings assigned for service-connected bilateral hearing loss disability and tinnitus. However, in his August 2012 substantive appeal, the Veteran specifically limited the appeal to the issue of entitlement to service connection for multiple myeloma. The Board had limited its consideration accordingly. FINDINGS OF FACT 1. The Veteran never served in the Republic of Vietnam or within the inland waters of Vietnam, and he was not otherwise exposed to any herbicide agent during service. 2. The Veteran's multiple myeloma is not etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for multiple myeloma, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116(f), 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). As part of the notice, VA must 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2014); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran has been provided adequate notice in response to the claim decided herein. The record shows that the Veteran was mailed a letter in April 2010 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The April 2010 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of the claim. The Board also finds the Veteran has been provided adequate assistance in response to the claim. The Veteran's service medical records are of record. Post-service treatment notes have been obtained. While a VA medical opinion was not provided in relation to the Veteran's claim decided herein, there is not a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the VA's obligation under 38 U.S.C. § 5103A (d) to provide a Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App.79 (2006). Here, the only evidence that the Veteran's multiple myeloma is related to active service are his own statements of herbicide exposure. There is no medical evidence to support any alleged relationship. Therefore, the Veteran's statements are insufficient to trigger VA's duty to provide an examination with an opinion. Neither the Veteran nor representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. II. Legal Criteria and Analysis The Veteran is seeking service connection for multiple myeloma, on the basis that such disability was caused by herbicide exposure while on active service. Specifically, he has alleged that while serving aboard the USS Duluth, he was exposed to herbicides from dirt and debris dislodged from helicopters when they would land on the ship. In the alternative, the Veteran has reported that he served in Quam and may have been exposed to herbicides while there. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. Multiple myeloma is among the exclusive list of diseases which are covered by this presumption. 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). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam may not be considered "service in the Republic of Vietnam" for purposes of 38 U.S.C.A. § 101 (29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975, and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307 (a)(6)(iii). VAOPGCPREC 27-97 (July 23, 1997). Simply stated, a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. Id. Since issuance of that General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. Subsequently, in May 2008, the Federal Circuit held that the interpretation by the Department of Veterans Affairs (VA) of the phrase "served in the Republic of Vietnam," which required the physical presence of a Veteran within the land borders of Vietnam during service, was a permissible interpretation of 38 U.S.C.A. § 1116 (a)(1)(A) and 38 C.F.R. § 3.307 (a)(6)(iii). The United States Supreme Court, declined to review the case, and the decision of the Federal Circuit in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) is final. In this case, the Board finds no persuasive, objective evidence to establish that the Veteran was actually exposed to herbicides from dirt and debris dislodged from helicopters when they would land on the USS Duluth. The Veteran has not supplied any corroborating evidence to support his contention and has not shown that he is competent to report that any dirt and debris dislodged from helicopters during landing contained herbicides or that he is competent to identify herbicide contamination. Further, there is no evidence or information to support the Veteran's speculative reports that he may have been exposed to herbicides in Quam. In fact there is no available data that indicates herbicide agents were ever used in Quam. A review of the Veteran's service personnel records shows that for the majority of his active service, following his initial training, he served aboard the USS Duluth and his service separation form shows that he had one year and eight months of foreign service. However, these records do not show that the Veteran served on the ground in the Republic of Vietnam, nor has he alleged that he stepped foot on Vietnamese soil during his active service. As a layperson, the Veteran is competent to report on matters observed or within his personal knowledge, and thus is competent to relate his observations of dirt and debris being dislodged from helicopters as they were landing on the USS Duluth, which he believes was indicative of herbicide exposure. Layno v. Brown, 6 Vet. App. 465 (1994), Grottveit v. Brown, 5 Vet. App. 91 (1993). Even assuming, without deciding, that such lay assertions might provide some evidence of herbicide exposure in an appropriate case, that is not the case here. The Board finds that the Veteran is not shown to be competent to identify herbicide contamination in dirt and debris floating in the air or landing on the deck of the ship. The Veteran's statements provide no evidence that the Veteran was in fact exposed to herbicide while serving aboard the USS Duluth. The Board finds the evidence does not establish that the Veteran was exposed to herbicides while on active service. Therefore, entitlement to service connection for multiple myeloma on the basis that such disability was caused by claimed herbicide exposure is not warranted. Nevertheless, even when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a another basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board will adjudicate the Veteran's claim on a theory of direct entitlement to service connection. Unfortunately, that claim also fails as the evidence does not show that service connection is warranted for multiple myeloma on a direct basis. The Veteran's service medical records and post-service medical records do not show that the Veteran was diagnosed with multiple myeloma while on active service or for many years thereafter. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). The service medical records are silent for complaints or treatment related to such disability. Further, the post-service medical evidence is void of any medical opinion which suggests that the Veteran's multiple myeloma either began during or was otherwise caused by his active service. The Veteran is not competent to provide an etiological opinion relating either disability to service because that would require medical training and expertise. Layno v. Brown, 6 Vet. App. 465 (1994), Grottveit v. Brown, 5 Vet. App. 9 (1993). While the Veteran has a diagnosis of multiple myeloma, the evidence does not establish that such disability began during active service or was otherwise caused by that service. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides during service. Therefore, the criteria for service connection for multiple myeloma have not been met and the claim must be denied. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for multiple myeloma is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs