Citation Nr: 1800610 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 17-20 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for skin cancer, including residuals, claimed as due to herbicide exposure, including Agent Orange. 2. Entitlement to service connection for throat cancer, including residuals, claimed as due to herbicide exposure, including Agent Orange. 3. Entitlement to service connection for a right knee disorder. (The issue of whether an overpayment of benefits was validly created in the amount of $1,523.00 due to the removal of the Veteran's Spouse as a dependent, effective March 1, 2014, is the subject of a separate Board decision.) REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from November 1947 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in September 2012 (for throat cancer and knee pain with associated residuals) and January 2015 (for skin cancer due to Agent Orange exposure) by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran had a hearing before a Decision Review Officer (DRO) in February 2017; a transcript of that hearing is associated with the claims file. The Board notes, in passing, that the Veteran is already in receipt of a combined 100 percent evaluation. The issue of waiver of overpayment has been raised by the record in a February 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). (The issue of whether an overpayment of benefits was validly created in the amount of $1,523.00 due to the removal of the Veteran's Spouse as a dependent, effective March 1, 2014 is the subject of a separate Board decision). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Neither skin cancer, nor throat cancer, is a disease presumptively associated with herbicide agent exposure. 2. The Veteran did not set foot on land in the Republic of Vietnam and he has not been shown to have been exposed to an herbicide agent, to include Agent Orange, during service. 3. The Veteran's skin cancer was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service. 4. The Veteran's throat cancer was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.313, 19.37(a) (2017). 2. The criteria for service connection for throat cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.313, 19.37(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he developed skin cancer and throat cancer from Agent Orange exposure in Vietnam. During his February 2017 DRO hearing, he reported that he had occasion to fly to Vietnam on hauling missions, as an aircraft loadmaster responsible for loading and unloading. Neither skin cancer nor throat cancer is listed as a disease associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). As such, service connection cannot be granted on a presumptive basis for either disorder, even if the Board were to find that he was exposed to an herbicide agent, such as Agent Orange, in service. A veteran who had active service in the Republic of Vietnam, from January 9, 1962, to May 7, 1975, will be presumed to have been exposed to an herbicide agent. The presumption does not apply if there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.30(a)(6)(iii). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. Although the Veteran has argued actual visitation to Vietnam, the evidence of record does not support making such a finding. The Veteran has not claimed, and the record does not show, that he was ever stationed in Vietnam. His chronological listings of service document that his service included at Robins Air Force Base in Georgia and Osan Air Base in Korea, as well as, other locations other than Vietnam. A review of his service personnel records also does not document service in Vietnam. As such, the Board has not found that the Veteran served in Vietnam, and thus, cannot be presumed to have been exposed to any herbicide agents. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To establish service connection on a direct basis the evidence must show (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A March 2016 VA medical record noted prior findings of parotid and skin cancer. The Veteran has current diagnoses of history of skin and throat cancer, and so may have current cancer residuals. The Veteran does not have present diagnoses of throat cancer or skin cancer following surgeries. Per his February 2012 lay statement, the Veteran developed throat cancer in April 1991. Per private medical records, the Veteran had basal cell carcinoma excised from his skin, including in October 2012 and July 2014. The Veteran was not diagnosed with either disorder for several decades following his May 1968 retirement from service. There is no medical evidence of any symptoms during service and the physicians that evaluated the Veteran have not opined that the onset of either skin cancer or throat cancer occurred during service or provided any indication as to the etiology of the skin cancer or throat cancer. Therefore, the Veteran cannot prevail on his claim through a theory of direct service connection. Even if the Veteran were to be found to have served in Vietnam, neither skin cancer nor throat cancer is a disorder presumptively associated with herbicide exposure. Furthermore, there is no medical evidence of record supportive of finding that either disorder during service or developed due to service (including due herbicide exposure if it had been found). As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claims for service connection for skin cancer and throat cancer, to include residuals, are denied. ORDER Service connection for skin cancer, including residuals, is denied. Service connection for throat cancer, including residuals, is denied. REMAND During the February 2017 DRO hearing, the Veteran reported that he injured his right knee at the same time he injured his already service-connected residuals for status-post fracture right femur with bursitis and right hip, while unloading cargo. At that time (1957), a piece of cargo fell on his right side and pushed him to the ground. Also during his hearing, the Veteran reported that he was not aware of a right knee diagnosis and did not seek treatment for the right knee. However, he also reported that he would speak to his private doctor about the knee. The AOJ should contact the Veteran to request any pertinent, private medical records regarding the right knee. In March 2017, as documented in Virtual VA, the VA medical records show that the Veteran underwent a VA examination of both knees and received a diagnosis of right knee strain. The AOJ does not appear to have considered such evidence, including in the April 2017 statement of the case. Additionally, the VA examination was inadequate as the examiner did not provide an etiology opinion as to the cause of the right knee disorder. A medical opinion must be obtained and considered by the AOJ. As this matter is being remanded, any unassociated VA medical records should be associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should obtain unassociated VA treatment records. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for the right knee, including the one he reported he intended to visit during the February 2017 DRO hearing. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C.A. § 5103A(b)(2) a 3. The AOJ should obtain a VA medical opinion by an appropriate VA examiner as to the nature and etiology of the Veteran's right knee disorder. It is left to the examiner's discretion whether to examine the Veteran. Following a review of the Virtual claims files, the VA medical opinion provider should offer an opinion on the following: (i) Does the Veteran currently have a right knee disorder? If so, please note the diagnosed disorder(s). (ii) Is it at least as likely as not that any diagnosed right knee disorder was incurred in or was caused by the Veteran's active service? The examiner should consider the lay statements of the Veteran, including the February 2017 DRO hearing testimony. The Veteran reported a 1957 incident of unloading cargo, when a piece of cargo fell on his right side and pushed him to the ground, at which time he had also injured his already service-connected right hip and femur. He indicated that his knee has had problems since that time. (iii) Is it at least as least as likely as not that any currently diagnosed right knee disorder is caused OR aggravated by a service-connected disability (including his service-connected right hip disorder). The examiner is asked to provide a complete rationale for any opinions given. 3. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence - to specifically include the March 2017 VA examination. If a benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs