Citation Nr: 1752284 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-29 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for metastatic lung cancer. 2. Entitlement to service connection for cancer of the lymph nodes of the neck. 3. Entitlement to service connection for prostate cancer. 4. Entitlement to dependency and indemnity compensation (DIC), to include service connection for the cause of the veteran's death, and pursuant the provisions of 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from June 1968 to June 1972 and August 1974 to August 1990. The Veteran died in February 2010 and the appellant is his widow. The appellant was properly substituted in a February 2013 VA memorandum. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana. The Board notes that in a September 2013 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. As such, those issues are not before the Board. The appellant testified at a Board videoconference hearing in February 2015 and a copy of that transcript is of record. In a June 2015 decision, the Board dismissed the issues of entitlement to death pension; entitlement to non-service connected death pension, and special monthly compensation pension, for accrued benefits purposes; and service connection for head cancer, Addison's disease, bilateral carpal tunnel syndrome, a left inguinal hernia, vitreous floaters, high cholesterol, constipation, a thyroid condition, and residuals of a traumatic brain injury, all for accrued benefits purposes. The Board remanded the issues listed on the title page for further development. This appeal was processed using the Veterans Benefits Management System. A review of the Veteran's Virtual VA claims file reveals documents that are either duplicative or irrelevant to the issues on appeal. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had in-country service in the Republic of Vietnam; along the DMZ in Korea from April 1, 1968, and August 31, 1971, or was otherwise exposed to herbicides during his period of active service. 2. The Veteran's metastatic lung cancer cannot be presumed to be due to exposure to herbicides in service and did not manifest during, or as a result of, active military service. 3. The Veteran's cancer of the lymph nodes of the neck cannot be presumed to be due to exposure to herbicides in service and did not manifest during, or as a result of, active military service. 4. The Veteran's prostate cancer cannot be presumed to be due to exposure to herbicides in service and did not manifest during, or as a result of, active military service. 5. During the Veteran's lifetime, he was service connected for back strain, rated as 20 percent disabling from June 10, 1972 to August 2, 1974 and from April 2, 2008; tinnitus, rated as 10 percent disabling from April 2, 2009; popliteal cyst, right knee rated as noncompensable from June 10, 1972 to August 2, 1974 and from September 1, 1990; and bilateral hearing loss rated as noncompensable from April 2, 2009. 6. The preponderance of the evidence is against a finding that any service-connected disability caused or contributed to the Veteran's death. 7. The Veteran was not a former prisoner of war (POW) and he was not in receipt of or entitled to receive compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for metastatic lung cancer have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for cancer of the lymph nodes of the neck have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for DIC have not been met. 38 U.S.C. §§ 1110, 1116, 1310, 1318, 5107 (2012); 38 C.F.R. §§ 3.22, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). Here, neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes that in a May 2016 statement, the appellant asserted that the Board or the RO should clarify what unit her husband served on the TDY orders in March of 1971. However, the Board notes that in March 2016, the RO made a formal finding of lack of information required to corroborate herbicide exposure, particularly that there is no evidence the Veteran served in any unit or other military entities that the DOD has identified as operating in or near the Korean DMZ during the qualifying period of April 1, 1968, to August 31, 1971, for tactical herbicide (Agent Orange) exposure and no service in any location presumptively exposed. As such, the Board finds that an additional remand is not necessary. See generally Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board also notes that the appellant has not raised any other issue with the duty to assist. The Board also finds that the RO has substantially complied with the June 2015 and July 2016 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The appellant contends that the Veteran's lung cancer, prostate cancer and cancer of the lymph nodes of the neck are due to the Veteran's in-service exposure to herbicides while stationed in Vietnam and along the DMZ in Korea. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131 (2012); 38 C.F.R. 3.303 (a) (2017). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, if a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. 38 C.F.R. § 3.309 (e) (2017). A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. "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. The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. Additionally, effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245 -01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. 38 C.F.R. § 3.307 (a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. Turning to the evidence of record, a December 2004 private treatment record shows that the Veteran was diagnosed with prostate cancer. A February 2007 private treatment record shows that a needle biopsy of the neck revealed metastatic poorly differentiated non-small cell carcinoma. A May 2007 private treatment record shows that the Veteran was diagnosed with squamous cell carcinoma of the right lung with high neck metastatic disease. The Veteran's service treatment records reveal no complaint, treatment or diagnosis of lung cancer, cancer of the lymph nodes of the neck and prostate cancer. July 1968, October 1969, December 1970 and November 1971 reports of medical examinations and the June 1972 separation report of medical examination show that the Veteran's neck, lungs and chest, anus and rectum and lymphatics were normal. The Veteran's DD214s show that during his first period of service his military occupational specialty (MOS) was communications equipment repairman and during his second period of service his MOS was infantryman. The Veteran's personnel records show that the Veteran was stationed in Korea on TDY for one month in March 1971. The Veteran was also stationed in Korea from August 1984 until August 1985. The Veteran's personnel records do not show that the Veteran was stationed in Vietnam at any time during his military service. A July 2009 request for information shows that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. An October 2009 VA treatment record shows that a Dr. T noted "Agent Orange???/is pending on evaluation". In a January 2010 statement, the Veteran reported that he was exposed to Agent Orange while serving in Vietnam. In an October 2010 statement, the appellant reported that the Veteran was in Vietnam on TDY. She also reported that he was in Korea twice on TDY. Ina November 2010 statement, the Veteran's mother reported that the Veteran told her that his group was dropped into Vietnam to set up communications. In a May 2014 statement, the appellant asserted that while the Veteran was stationed at Lackland Air Force Base he was sent on TDY to Vietnam. In an August 2014 statement, the appellant asserted that it was her firm belief, that while no proof can be found in her husband's records that he actually stepped foot in Vietnam or in the DMZ area of Korea, it would go to reason that due to the nature of his job in the Air Force, Tactical Air Combat Control, that it is at least as likely as not that his TDY did place him in Vietnam and that while in Korea he may have conducted training or operations in the area of the DMZ. At the February 2015 Board hearing, the appellant testified that the Veteran was TDY in Korea for two days as reflected in his personnel files. In a May 2015 statement, the appellant asserted that the Veteran's DD214s were wrong in stating that the Veteran was not in Korea or Vietnam. In May 2015 the appellant submitted personnel records that have "DMZ" handwritten next to Korea under "area and country". In March 2016, the RO made a formal finding of lack of information required to corroborate herbicide (Agent Orange) exposure. They found that the information needed to verify that the Veteran was exposed to herbicide (Agent Orange) had not been furnished and they were therefore unable to send a request for verification to the U.S. Army, Joint Services Records Research Center (JSRRC), and/or C&P Services (Agent Orange Mailbox). The RO also found that the information was insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The efforts made to obtain the relevant information were set forth. The RO noted review the Veteran's personnel file showed the Veteran has service with Co B 1st Bn 9th Inf as a (11B10) Platoon Sergeant from February 1984 to August 1985. There is no evidence the Veteran served in any unit or other military entities that DOD has identified as operating in or near the Korean DMZ during the qualifying period of April 1, 1968, to August 31, 1971, for tactical herbicide (Agent Orange) exposure and no service in any location presumptively exposed. The RO noted that the Veteran's personnel file is negative for unit information, performance reports, orders or assignments showing service along the Korean DMZ. The RO noted that information on claimed herbicide exposure was insufficient for JSRRC research. The RO also noted that service treatment records and service records were reviewed for evidence of herbicide exposure and none were found. In a May 2016 statement, the appellant asserted that Veteran's TDY orders were to Korean DMZ. The appellant also asserted that the custodians of the Veteran's records failed to complete his records. She asserted that incomplete personnel records within her husband's file should not be the primary reason to deny his exposure to herbicide while he served in Korea. Based on the above, the Board finds that the most competent and credible evidence of record is against a finding that the Veteran was exposed to herbicides. First, the Board notes that in May 2015 the appellant submitted personnel records that have "DMZ" handwrote next to Korea under "area and country". However, this specific personnel record was previously associated with the claims file and did not contain the handwritten notations. Therefore, the Board finds that the personnel record with the handwritten notations has been altered. The Board notes that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Thus, in light of the inconsistencies between the original and the altered document, the Board assigns the altered personnel record no probative weight in determining if the Veteran served on the DMZ in Korea. The Board also notes that the Veteran had confirmed service along the DMZ in 1984 and 1985. However, this is after the dates allowed by the provision for presumptive exposure to herbicide agents, namely, April 1968 to August 1971. The Board also notes that the Veteran was stationed in Korea for one month in March 1971. However, as noted by the RO, there is no evidence the Veteran served in any unit or other military entities that DOD has identified as operating in or near the Korean DMZ during the qualifying period of April 1, 1968 to August 31, 1971. The Board acknowledges the lay assertions of record that the Veteran served in Vietnam and along the DMZ in Korea. The Board notes that the Veteran was competent to report where he served and that the appellant and the Veteran's mother are competent to report what the Veteran told them. However, when compared to the official records as discussed above, such records tend to refute such assertions. The Board finds the Veteran's contemporaneous personnel records to have more probative weight in determining whether the Veteran's service involved duty or visitation to the Republic of Vietnam or the Korean DMZ during the qualifying period, when compared to the recent lay recollections. The Board is aware of the concept outlined by the United States Court of Appeals for Veterans Claims (Court) that "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The Board also notes that in Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court noted in a footnote that "as a general matter, the absence of evidence is not substantive negative evidence. While the majority agrees that this is not an absolute rule, there must be 'a proper foundation ... to demonstrate that such silence has a tendency to prove or disprove a relevant fact'." The Court also referenced Federal Rule of Evidence 803(7) and cited Buczynski for the proposition that "'the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded.'" In this case, the Board finds that a proper foundation exists, as the Board finds that the Veteran's reported in-country Vietnam service and service along the DMZ during the qualifying period is a fact that would have ordinarily been record in the Veteran's personnel records. It is reasonable to conclude that a TDY trip to a foreign country to set up communications during a period of war, as reported by the Veteran's family, would have ordinarily been recorded in official personnel records. It is also reasonable to conclude that a unit, to include the Veteran, being assigned to the DMZ would have also been recorded in performance reports, orders or assignments. The silence in the personnel records as to Vietnam service has a tendency to prove the relevant fact that such reported service did not occur. As such, based on the preceding discussion, the absence of evidence of in-country Vietnam service and service along the DMZ during the qualifying period in the Veteran's personnel records may serve as substantive negative evidence against such reported service. The Board acknowledges the appellant's assertions that due to the nature of the Veteran's job in the Air Force, Tactical Air Combat Control, that it is at least as likely as not that the Veteran's TDY did place him Vietnam and that while in Korea may have conducted training or operations in the area of the DMZ. The Board also notes the appellant's assertions that the failure of custodians to complete the Veteran's records should not bar service connection. However, again, the absence of evidence of in-country Vietnam service and service along the DMZ during the qualifying period in the Veteran's personnel records may serve as substantive negative evidence against such reported service. As the most probative evidence of record is against a finding that the Veteran had in-country service in the Republic of Vietnam, along the DMZ during the qualifying period or was otherwise exposed to herbicides during the course of his military service, the presumption of herbicide exposure and presumptive service connection based on exposure to herbicides is not warranted. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that 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). In this regards, the Veteran's service treatment records are absent of any complaints, treatment or diagnosis of lung cancer, prostate cancer or cancer of the lymph nodes of the neck. There is also no competent or credible evidence of record linking the Veteran's disabilities directly to service. Additionally, the appellant does not contend, and the evidence of record does not illustrate that the Veteran's disabilities manifested to a compensable degree within one year of service or that the Veteran suffered from continuous symptoms since service. See 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. The Board acknowledges the October 2009 VA treatment record, however, as the evidence of record is against a finding of herbicide exposure, the Board assigns the record no probative value in determining if service connection is warranted. Therefore, the Board finds that the weight of the evidence is against a finding of service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102 (2017), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DIC The appellant contends that the Veteran's cause of death was due to his military service. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally. 38 U.S.C. § 1310 (2012). The Veteran died on February [REDACTED], 2010. The Veteran's immediate cause of death was terminal lung cancer and squamous cell cancer of neck lymph nodes. During the Veteran's lifetime, the Veteran was service connected for back strain, rated as 20 percent disabling from June 10, 1972 to August 2, 1974 and from April 2, 2008; tinnitus, rated as 10 percent disabling from April 2, 2009; popliteal cyst, right knee rated as noncompensable from June 10, 1972 to August 2, 1974 and from September 1, 1990; and bilateral hearing loss rated as noncompensable from April 2, 2009. As discussed above, service connection for lung cancer, prostate cancer and cancer of the lymph nodes of the neck is not warranted. Additionally, the evidence does not suggest, and the appellant does not contend that the Veteran's back strain, tinnitus, popliteal cyst or bilateral hearing loss caused or contributed to the Veteran's death. The Board notes that VA death benefits may also be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service-connected. 38 U.S.C. § 1318 (a); 38 C.F.R. § 3.22 (a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former POW and died after September 30, 1999 and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22 (c). Here, the Veteran was not continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. Also, the evidence does not show that he was a former POW. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Therefore, the claim for DIC, including based on service connection for the cause of the Veteran's death and pursuant the provisions of 38 U.S.C § 1318, must be denied. 38 U.S.C § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for metastatic lung cancer is denied. Entitlement to service connection for cancer of the lymph nodes of the neck is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to DIC, to include service connection for the cause of the veteran's death, and pursuant the provisions of 38 U.S.C. § 1318 is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs