Citation Nr: 1756545	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  10-01 399	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a cancerous tumor of the left eye, diagnosed as squamous cell carcinoma.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

B. Moore, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 to February 1971.  He had service in the Republic of Vietnam from August 1968 to August 1969.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board remanded this claim for further development in December 2013 and April 2016.  It returns to the Board for adjudication.  


FINDINGS OF FACT

The preponderance of the evidence indicates that the Veteran's cancerous tumor of the left eye was not incurred in or the result of his service. 


CONCLUSION OF LAW

The criteria to establish entitlement to service connection for a cancerous tumor of the left eye have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a veteran in developing information and evidence necessary to substantiate their claim.  Under 38 U.S.C. § 5103(a), VA must notify a veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence a veteran is expected to provide.  VA has provided the Veteran with the requisite information as to the above claimed disability. 

As to the duty to assist, VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  See 38 U.S.C. § 5103A(a), (b) and (c).  The RO has obtained the Veteran's service treatment records, VA medical records, and private treatment records.  The RO provided the Veteran with examinations and opinions in June 2011, January 2012 (with addendums), May 2014, and July 2016, to assess whether the Veteran suffered from a cancerous tumor of the left eye as a result of his service.  The Board obtained an advisory medical opinion from the Veterans Health Administration (VHA) in July 2017, to determine whether the Veteran suffered from a cancerous tumor of the left eye as a result of presumed exposure to an herbicide agent, to include Agent Orange.  The Board finds these reports adequate to decide the Veteran's claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  

The Board also finds that the RO has substantially complied with the Board's prior remand directives.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance).  The Board concludes that no further assistance to the Veteran in developing the facts pertinent to this claim is required.


II.  Legal Criteria 

Generally, direct service connection may be established for a disability resulting from a disease, injury, or event, incurred in or aggravated by service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Lay evidence can be competent and sufficient to establish a diagnosis or cause when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

If a veteran was exposed to an herbicide agent, including Agent Orange, during active service, presumptive service connection is warranted for certain specified diseases.  See 38 C.F.R. §§ 3.307, 3.309(e).  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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary.  See 38 C.F.R. § 3.307(a)(6).  The Veteran in this case has qualifying service in the Republic of Vietnam, but has not sought service connection for a disability which is presumed to be related to herbicide agent exposure.  Regardless, service connection may be established on a direct basis for disabilities attributed to exposure to herbicide agents incurred as result of service in the Republic of Vietnam.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).


III.  Facts

A November 1969 service treatment record indicates that the Veteran suffered from a sty of the left eye while in service.  The Veteran's in-service physician prescribed Neosporin for the sty, and it does not appear that the Veteran suffered from any residuals of this ailment.  The Veteran's January 1971 report of medical examination upon separation recorded both of his eyes as normal, with 20/20 vision, and his January 1971 report of medical history upon separation lists no complaints related to either of his eyes.  

In February 2006, the Veteran's VA physician noted that the Veteran suffered from a "small growth on [his] left eye[.]"  A May 2006 VA treatment record indicates that the Veteran reported a history of small cancerous growths on his left eye that kept "coming back."  A June 2006 VA treatment record confirms that the Veteran suffered from squamous cell carcinoma of the left eye.  

VA provided the Veteran with an examination in June 2011 to assess the cause of his left eye disability.  The examiner opined that the squamous cell carcinoma that covered the Veteran's left eye was "NOT LIKELY RELATED TO the [sty] of [the] left eye which was present during 1969 while he was in service."  

A medical opinion rendered following a VA examination performed in January 2012 came to the same conclusion.  In a corresponding report, with addendums, the examiner opined that there was no relation between the squamous cell carcinoma that affected the Veteran's left eye and the sty he suffered from in service.  Moreover, the author of the January 2012 examination report stated that a sty does not "increase the risk for or cause squamous cell carcinoma," and that "they are two separate unrelated conditions."  

In May 2014, a VA examiner again opined that there was no relationship between the sty suffered by the Veteran while in service and the cancerous tumor of the left eye.  A July 2016 VA addendum opinion drafted by the author of the May 2014 medical opinion added that the Veteran's squamous cell carcinoma of the left eye appeared roughly 27 years after service, that it was "the most common tumor of the conjunctiva caused by sun exposure, smoking, and light colored skin," and that there was no relationship between the Veteran's in-service left eye sty and his current disability of the left eye.  

The authors of a July 2017 advisory medical opinion obtained from the VHA opined that the Veteran's cancerous tumor of the left eye was not the result of his presumed exposure to an herbicide agent during his service in the Republic of Vietnam.  The authors of the advisory medical opinion letter noted that "solar UV radiation is the major [causal] risk factor in the development of ocular surface squamous neoplasia, which includes conjunctival [squamous cell carcinoma]," and that other "accepted risk factors include human papilloma virus infection, immunosuppression . . . and xeroderma pigmentosum."  The July 2017 advisory medical opinion letter also notes that herbicide exposure (including Agent Orange) is not a "known risk factor for the development of conjunctival [squamous cell carcinoma]."  The advisory medical opinion cites the National Academies of Sciences, Engineering, and Medicine's Veterans and Agent Orange Update 2014 (2016), and notes that the study found "'inadequate or insufficient evidence to determine whether there is an association' between exposure to Agent Orange and eye conditions or squamous cell cancers."   


IV.  Analysis

As stated, the Veteran served on active duty in the Republic of Vietnam from February 1968 to February 1971.  He seeks service connection for squamous cell carcinoma of the left eye and related growths.  At issue in this case is whether the disability affecting the Veteran's left eye is the result of his service, including whether the disability is a result of his presumed in-service exposure to an herbicide agent, to include Agent Orange.  See 38 C.F.R. § 3.307(a)(6).

The medical evidence of record indicates that the Veteran's cancerous tumor of the left eye was not the result of an injury or illness sustained during service, including his left eye sty.  Specifically, the evidence of record demonstrates that the Veteran's in-service sty did not result in his cancerous tumor of the left eye.  Moreover, the July 2017 VHA advisory medical opinion found that the Veteran's cancerous tumor of the left eye was not related to his presumed exposure to an herbicide agent.  The Board notes the study cited in the July 2017 VHA advisory medical opinion, which found inadequate or insufficient evidence to determine an association between herbicide exposure and "[n]on-melanoma skin cancer (basal-cell and squamous-cell)[.]"  The record does not contain persuasive evidence of a link between the Veteran's cancerous tumor of the left eye and his presumed exposure to an herbicide agent during his service in the Republic of Vietnam.  As the preponderance of the evidence indicates that the Veteran's cancerous tumor of the left eye was not the result of his service, service connection is not warranted.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.


ORDER

Service connection for a cancerous tumor of the left eye is denied.




____________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs