Citation Nr: 1716694	
Decision Date: 05/17/17    Archive Date: 05/22/17

DOCKET NO.  13-06 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a higher initial rating for adenocarcinoma lung, non-small cell with bronchiectasis, which is currently rated as 30 percent disabling effective December 9, 2010, and 100 percent disabling effective August 2, 2012. 

2.  Entitlement to an effective date prior to December 9, 2010, for adenocarcinoma lung, non-small cell with bronchiectasis.

3.  Entitlement to service connection for bladder cancer, to include as a result of exposure to herbicides. 

4.  Entitlement to service connection for colon cancer, to include as a result of exposure to herbicides.

5.  Entitlement to service connection for squamous skin cancer as a result of exposure to herbicides.  



REPRESENTATION

Veteran represented by:	Jill W. Mitchell-Thein, Attorney


ATTORNEY FOR THE BOARD

J. Unger, Associate Counsel 


INTRODUCTION

The Veteran had active duty service from February 1954 to February 1958 and from February 1958 to May 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for adenocarcinoma lung, non-small cell with bronchiectasis evaluated as 30 percent disabling, effective December 9, 2010.  The RO also denied service connection for bladder cancer, colon cancer, and squamous skin cancer.  The Veteran subsequently appealed with respect to the evaluation and assigned effective date of the lung cancer as well as the denial of service connection for his other issues.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for bladder cancer, colon cancer, and squamous skin cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  VA first received the Veteran's claim for service connection for adenocarcinoma lung, non-small cell with bronchiectasis on December 9, 2010.

2.  Prior to August 2, 2012, the Veteran's adenocarcinoma lung, non-small cell with bronchiectasis was not manifested by incapacitating episodes of 4 weeks or more total duration per year, the need for near constant antibiotic use, forced expiratory volume in one second (FEV-1) of 55 percent or less, forced expiratory volume in one second to forced vital capacity ratio (FEV-1/FVC) of 55 percent or less, diffusion capacity of carbon monoxide (DLCO) of 55 percent or less or maximum oxygen consumption of 20 ml/kg/min (with cardiorespiratory limit). 


CONCLUSIONS OF LAW

1.  An effective date prior to December 9, 2010 for the award of service connection for adenocarcinoma lung, non-small cell with bronchiectasis is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156, 3.157, 3.400 (2016). 

2.  The criteria for a rating in excess of 30 percent, prior to August 2, 2012, for adenocarcinoma lung, non-small cell with bronchiectasis is not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code (DC) 6601 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R.        §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim.  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. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103 (a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. 

The Board observes that the Veteran has appealed with respect to the propriety of the assigned effective date and disability rating for the award of service connection for adenocarcinoma lung, non-small cell with bronchiectasis from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for adenocarcinoma lung, non-small cell with bronchiectasis was granted and the rating and effective date were assigned in the April 2012 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initial effective date and disability rating, no additional 38 U.S.C.A. § 5103 (a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Relevant to the duty to assist, the Board notes that relevant medical evidence was reviewed by the AOJ in connection with the adjudication of the Veteran's service connection claim, to include his service treatment and post-service treatment records, as well as VA examinations and opinions.  

Pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of the Veteran's claim for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the record.  There is no outstanding information or evidence that would help substantiate the Veteran's claim.  VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103 (a) and 5103A.  See VAOPGCPREC 5-04 (June 23, 2004).

Furthermore, the Board notes that the Veteran was afforded VA examinations in October and April 2012.  The Board finds that the examinations were adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and they describe the claimed disabilities in sufficient detail to allow the Board to make a fully informed determination.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes).  However, the Board also notes that these examinations cover the period for which the Veteran is already in receipt of a 100 percent rating and are therefore not pertinent to the period under review.

In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Earlier effective date claim

The Veteran contends that he is entitled to service connection prior to the date which the RO has assigned of December 9, 2010, the date of receipt of his claim.  Specifically, the Veteran contends that he is entitled to service connection as of September 2005, the date which he was diagnosed with adenocarcinoma lung, non-small cell with bronchiectasis. 

Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor.  38 U.S.C.A. § 5110 (a).  The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400 (emphasis added).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101 (a); 38 C.F.R. § 3.151.  Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim.  38 C.F.R. § 3.155.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim.  38 C.F.R. § 3.155.

VA received the Veteran's current claim for service connection for adenocarcinoma lung, non-small cell with bronchiectasis in an Application for Compensation and Pension (VA Form 21-526) received by VA on December 9, 2010.  An April 2012 rating decision granted service connection for adenocarcinoma lung, non-small cell with bronchiectasis, effective December 9, 2010, the date on which the VA first received the Veteran's claim.  The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection for adenocarcinoma lung, non-small cell with bronchiectasis that was received prior to the December 9, 2010 formal claim.

The Veteran contends that private post-service treatment records which note that he was diagnosed with lung cancer in September 2005, should constitute the date which entitlement to service connection arose.  Therefore, he argues that an earlier effective date is warranted on this basis.

The Board notes that, under the provisions of 38 C.F.R. § 3.157 (b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims.  See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  Medical records cannot be accepted as informal claims for disabilities where service connection has not been established.  The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition.  See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).  Merely seeking treatment does not establish a claim, to include an informal claim, for service connection.  Thus, any record of treatment for the Veteran's lung cancer prior to his official claim cannot constitute a claim for service connection.  Further, the treatment records are private and not from a VA or uniformed services hospital and do not indicate that the Veteran intended to seek service connection for his lung cancer.

Based on the analysis above, and after reviewing the totality of the evidence, the Board finds that the RO did not receive an application for compensation benefits prior to the receipt of the Veteran's claim for service connection for adenocarcinoma lung, non-small cell with bronchiectasis in December 2010.  The Board recognizes that the Veteran has alleged that he has suffered from adenocarcinoma lung, non-small cell with bronchiectasis long before his date of claim.  However, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA.  See Lalonde, 12 Vet. App. at 382-383. 

However, while Lalonde emphasizes the general rule, importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400.  (emphasis added).  In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of VA's receipt of the claim.  While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to December 9, 2010, for the grant of service connection for adenocarcinoma lung, non-small cell with bronchiectasis.  The Veteran does not assert that he filed a claim for service connection for this disability prior to December 9, 2010.

Accordingly, the preponderance of the evidence is against the claim for an effective date prior to December 9, 2010 for the award of service connection for such disability.  As such, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A.  § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

III.  Increased rating claim

The Veteran asserts that his adenocarcinoma lung, non-small cell with bronchiectasis is more severe than reflected by his 30 percent rating prior to August 2, 2012.  Based on a sympathetic review of the evidence, the Board finds that the preponderance of the evidence indicates that the Veteran is not entitled to a rating in excess of 30 percent prior to August 2, 2012.

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The assignment of a particular Diagnostic Code depends wholly on the fact of the particular case.  Butts v. Brown, 5 Vet. App. 532, 538 (1993). 

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's adenocarcinoma lung, non-small cell with bronchiectasis is currently rated under Diagnostic Codes 6819-6601.  In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.  With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.  38 C.F.R. § 4.27.  The hyphenated diagnostic code in this case indicates that neoplasms, malignant, any specified part of respiratory system exclusive of skin growths under Diagnostic Code 6819 is the service-connected disorder and Bronchiectasis under Diagnostic Code 6601 is a residual condition.

As noted by the RO, under 38 C.F.R. § 4.96 (a), ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other.  Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847.  A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.

Under Diagnostic Code 6601, a 30 percent evaluation is assigned for incapacitating episodes of infection of two to four weeks total duration per year, or; a daily productive cough with sputum that is at times purulent or blood-tinged and that requires prolonged (lasting four to six weeks) antibiotic usage more than twice per year.  A 60 percent evaluation is assigned for incapacitating episodes of infection of four to six weeks total duration per year, or; near constant findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis and requiring antibiotic usage almost continuously.  A 100 percent evaluation is assigned for incapacitating episodes of infection lasting at least 6 weeks total duration per year.  38 C.F.R. § 4.97.  

A Note following Diagnostic Code 6601 indicates that an incapacitating episode is one that requires bedrest and treatment by a physician. 

Bronchiectasis may alternately be rated according to pulmonary impairment or as for chronic bronchitis under Diagnostic Code 6600.  See 38 C.F.R. § 4.97, Diagnostic Code 6600. 

Under Diagnostic Code 6600 (and 6601), a 30 percent evaluation is assigned for FEV-1 of 56 to 70 percent predicted, or; FEV-1/Forced Vital Capacity of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted.  A 60 percent evaluation is assigned for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent evaluation is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DCLO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; required outpatient oxygen therapy.

Diagnostic Code 6602, which pertains to bronchial asthma, provides for a 60 percent rating where pulmonary function tests (PFTs) show any of the following: FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.  A 100 percent rating is warranted where PFTs show any of the following: FEV-1 less than 40 percent predicted, FEV-/FVC less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis.  38 C.F.R. § 4.97, Diagnostic Code 6602.

Diagnostic Code 6603 provides the rating criteria for pulmonary emphysema.  A 60 percent rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.

Under Diagnostic Code 6604, a 60 percent evaluation requires FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent evaluation is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.  38 C.F.R. § 4.97, Diagnostic Code 6604.

Pulmonary function tests (PFTs) are required to evaluate a disability under Diagnostic Codes 6600 and 6602, unless (i) the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less, (ii) pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy has been diagnosed, (iii) there have been one or more episodes of acute respiratory failure, or (iv) outpatient oxygen therapy is required.  38 C.F.R. § 4.96 (d).  If the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) test is not of record, evaluation can be based on alternative criteria as long as the examiner states why the test would not have been useful or valid in a particular case.  Id.  When evaluating a disability based on PFTs, post-bronchodilator results are used, unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  In those cases, the pre-bronchodilator results are used to determine the disability rating.  Id. at (d)(5).  When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which result is used, the test result that the examiner states most accurately reflects the level of disability is used to evaluate for rating purposes.  Id. at (d)(6).

Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why.  38 C.F.R. § 4.96 (d)(4).  When evaluating based on PFTs, rates are to use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  In those cases, use the pre-bronchodilator values for rating purposes.  38 C.F.R. § 4.96 (d)(5). 

When there is a disparity between the results of different PFTs FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability.  38 C.F.R. § 4.96 (d)(6).

The Veteran is presumed to be seeking the maximum possible evaluation.  AB v. Brown, 6 Vet. App. 35 (1993).  When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53.

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

Treatment notes from June 2011 reflect that the Veteran had a mild wheeze and that PFT testing was completed and the examiner noted "that they were down a bit with his FEV1 dropping to 79%."  A December 2011 treatment note reflects that the Veteran had rhonchi and left upper lobe rales.  June 2012 treatment notes reflect that he had prolongation of expiratory phase and the examiner diagnosed chronic respiratory insufficiency, COPD, and previous lung cancer. 

In an August 2012 statement from the Veteran's doctor, it was noted that the Veteran's condition of bronchiectasis had increased in severity.  He noted that "during this year [the Veteran] has had episodes of severe coughing from bronchial infections in February, May, June and most recently July."  The physician noted that during these episodes, the Veteran required increased nebulizer treatments, treatment with prednisone, and treatment with antibiotics and that he had decreased oxygen saturation and elevated white cell count.  The examiner further noted that the Veteran complained of increased shortness of breath, low-grade fever, increase in cough with mucopurulent sputum.  Upon examination, the examiner noted that the Veteran's white blood cell count was high at 12.3 (normal was noted to be 10), and his chest X-ray showed a new left lobe pneumonia.  The examiner noted that the Veteran's increased frequency of bronchial and lung infections causing COPD exacerbations was evidence that his bronchiectasis was worsening. 

The Board notes that the Veteran underwent VA examinations in April and October 2012 for his respiratory conditions.  However, such examinations illustrate the Veteran's condition during the period for which he is already in receipt of a 100 percent rating and are therefore not related to the period on appeal. 

After a careful review of the evidence of record, the Board finds that the Veteran's treatment records do not show treatment for infections of chronic inflammation associated with bronchiectasis or that such episodes occur at the frequency required to warrant a rating in excess of 30 percent.  While the Veteran's physician noted in his statement that the Veteran had suffered multiple infections prior to August 2012 which required treatment by a physician with antibiotics, nebulizer treatments, and prednisone, he did not indicate how long the episodes lasted or that the Veteran had near constant cough with purulent sputum associated with anorexia, weight loss and frank hemoptysis requiring almost constant antibiotic usage.  Furthermore, the physician did not give any indication that the Veteran required bedrest or note findings of incapacitating episodes within the meaning of Diagnostic Code 6601.  

Considering Diagnostic Codes 6600, 6602, 6603 and 6604, there are simply no pulmonary function testing findings showing FEV-1 of 55-percent or less predicted; FEV-1/FVC of 55 percent or less predicted, or; DLCO (SB) of 55-percent predicted, or; maximum oxygen consumption of 20 ml/kg/min or less (with cardiorespiratory limit).  Consequently, a rating in excess of 30 percent is also not warranted under any other Diagnostic Code.

Accordingly, considering all of the evidence, there is no schedular basis for assigning a rating in excess of 30 percent for the service connected adenocarcinoma lung, non-small cell with bronchiectasis prior to August 2, 2012.

The Board notes that the Veteran reports that his condition is worse than his current 30 percent rating reflects, and that the Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person.  38 C.F.R.          § 3.159 (a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  However, he is not competent to assess the severity of his condition.  The Veteran's history and symptom reports have been considered, including as presented in the medical evidence, and have been contemplated by the disability rating that has been assigned.  Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of such service-connected disability.  As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected adenocarcinoma lung, non-small cell with bronchiectasis.

Therefore, resolving all doubt in the Veteran's favor, the Board finds that entitlement rating in excess of 30 percent prior to August 2, 2012 for adenocarcinoma lung, non-small cell with bronchiectasis is not warranted.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.


ORDER

An effective date prior to December 9, 2010, for the award of service connection for adenocarcinoma lung, non-small cell with bronchiectasis is denied.

Entitlement to a disability evaluation in excess of 30 percent for adenocarcinoma lung, non-small cell with bronchiectasis, prior to August 2, 2012, is denied.


REMAND

The Board notes that the evidence does not show, and the Veteran does not contend, that his bladder cancer, colon cancer, and squamous skin cancer had their onset during service, within one year of his service discharge, or are related to any aspect of his military service other than his alleged herbicide exposure.  The Veteran also does not contend that he had continuity of symptoms of such cancers since service.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery.  Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory).  Rather, the Veteran contends that his bladder cancer, colon cancer, and squamous skin cancer are related to alleged herbicide exposure, to include Agent Orange, while serving in Thailand and allegedly the Republic of Vietnam.  
 
The law provides a presumption of service connection for certain diseases, that are associated with exposure to herbicide agents and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in Vietnam or in or near the Korean DMZ between April 1, 1968 and August 31, 1971, even if there is no record of evidence of such disease during the period of service.  See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (a)(6).  In this case, however, the evidence does not show, nor does the Veteran allege that he had service in Korea.  However, he does allege that he had "boots on the ground" in Vietnam on his way to Thailand. 

VA's Adjudication Procedures Manual, M21-1, notes that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, to include Takhli and Nakhon Phanom Airbases.  See M21-1 at IV.ii.2.H.5.b.  If a Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis.  However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975.  See M21-1 at IV.ii.2.H.5.b. 

Also of record is a Memorandum for the Record on VA letterhead, which is a synopsis of a review by the VA Compensation and Pension Service.  The Memorandum states that tactical herbicides, e.g., Agent Orange, were used and stored in Vietnam, not Thailand.  However, there are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era.  The Thailand CHECO report did not report use of tactical herbicides in Thailand, but there was sporadic use of non-tactical (commercial) herbicides within fenced perimeters.  Thus, if a Veteran's military occupational specialty or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides and herbicides.  If the claim was based on servicing or working on aircraft that flew bombing missions over Vietnam, there was no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam.  Aerial spraying of tactical herbicides over Vietnam did not occur everywhere and it was inaccurate to think that herbicides covered every aircraft and equipment associated with Vietnam.  If the claim was based on general herbicide use within a military base, e.g., small scale brush or weed clearing activity along a flight line or around living quarters, there were no records of such activity involving tactical herbicides, only commercial herbicides.  No additional evidence beyond this could be provided and unless there was no reasonable possibility of substantiating the claim, an RO should send a request to JSRRC for any information that Compensation and Pension Services could not provide to corroborate any claimed exposure.

In the instant matter, the record does not support the Veteran's contention that he served in Vietnam.  However, there is an indication that he served on an Air Force Base in Thailand during the Vietnam War.  Therefore, on remand a request should be sent to the JSRRC to verify whether the Veteran was exposed to herbicides coincident with his service in Thailand.  Furthermore, the RO should attempt to verify whether the Veteran had any service in Vietnam. 

Furthermore, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr, 21 Vet. App. at 311.  For below noted reasons, the Board finds that, while the Veteran has submitted an October 2010 private opinion from Dr. H. Q. P., a VA opinion to determine the nature and etiology is required to decide the claims for service connection for bladder cancer, colon cancer, and squamous skin cancer.

With regard to the Veteran's claimed bladder cancer, colon cancer, and squamous skin cancer, he has alleged suffering from such disabilities as a result of his service, to include his alleged exposure to herbicides.  Service treatment records are negative for complaints, treatments, or diagnoses related to bladder cancer, colon cancer, or squamous skin cancer.  Post-service treatment records reflect assessments of bladder cancer in 1997, colon cancer in 2001 and skin cancer beginning in the 1990s.  The October 2010 opinion from Dr. H. Q. P. indicated that because of the Veteran's multiple types of different cancers throughout his body, there was a possibility that the cancers were secondary to his previous environmental exposure.  However, this opinion contained no rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight).  Furthermore, it was expressed in speculative terms and therefore not probative.  Therefore, on remand, examinations with etiology opinions should be obtained.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The Veteran should be asked to provide more detailed information regarding his reported travel to Vietnam, to include when such service occurred.  The Veteran should be requested to provide any evidence showing that he actually stepped foot in Vietnam, including pictures, letters, or copies of any TDY orders authorizing his travel to Vietnam.  In addition, the Veteran should provide additional information regarding his service in Thailand, to include his duties, the planes that he worked on and the area in which he primarily performed his duties, specifically whether he worked near the base perimeter. 

2.  If the Veteran provides any additional information showing he served in Vietnam or Thailand, send a request to JSRRC (or other appropriate entity) to verify whether the allegations of the Veteran flying to Vietnam and working in Thailand are consistent with his known military occupational specialty (MOS) during the Vietnam War.  The Veteran's service personnel records should be provided for review.  Any response from JSRRC (positive or negative) should be associated with the claims file.

3.  If service in Vietnam or Thailand is shown to have resulted in exposure to herbicides, an opinion should be obtained to determine the etiology of his bladder cancer, colon cancer, and squamous skin cancer.  

The examiner is asked to furnish an opinion with respect to the following questions:

The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that bladder cancer, colon cancer, and/or squamous skin cancer had its onset during any period of service, or is otherwise related to such periods of service, to include his demonstrated exposure to herbicides.

The examiner is asked to provide a rationale for all opinions and conclusions reached.

4.  Readjudicate the appeal.

The Veteran has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs