Citation Nr: 1817181 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 16-19 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a heart disorder, including as secondary to Agent Orange exposure and/or ionizing radiation exposure. 2. Entitlement to service connection for basal cell carcinoma, including as secondary to Agent Orange exposure and/or ionizing radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1954 to March 1956. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. These matters were previously before the Board in April 2017, wherein the Veteran's claims were remanded for additional development and due process considerations. A supplemental statement of the case was most recently issued in November 2017. The case was returned to the Board for appellate consideration. 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). FINDINGS OF FACT 1. The Veteran did not engage in a radiation risk activity and the evidence demonstrates that he was not exposed to ionizing radiation during service. 2. The Veteran did not have service in Vietnam and the evidence does not demonstrate that he was exposed to herbicides during service. 3. Congestive heart failure was not manifest in service or within one year of separation. Congestive heart failure is not attributable to service. 4. Basal cell carcinoma was not manifest in service or within one year of separation. Congestive heart failure is not attributable to service. CONCLUSIONS OF LAW 1. A heart disorder was not incurred in or aggravated by service, nor can a heart disorder be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2017). 2. Basal cell carcinoma was not incurred in or aggravated by service, nor can diabetes mellitus be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims of entitlement to service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims. The RO attempted to afford the Veteran VA examinations responsive to the claims for service connection. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is currently incarcerated. The Board acknowledges that the duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995). However, VA does not have the authority to require a correctional institution to release a veteran so that VA can provide him the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711. Nevertheless, the RO contacted the correctional facility in an effort to arrange transportation of the claimant to a VA facility for examination or have their medical personnel conduct an examination according to VA examination worksheets; sending a VA or fee-basis examiner to the correctional facility to conduct the examination was not an available option. See Bolton, supra. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, such as cardiovascular diseases and carcinoma, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Entitlement to service connection for a given disorder based on exposure to ionizing radiation may be shown in one of three ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, a radiation-exposed veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer. A "radiation-exposed veteran" is one who participated in a radiation-risk activity which, by definition, means the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, service at a gaseous diffusion plant, or service on Amchitka Island. 38 C.F.R. § 3.309(d)(3). If the requirements for presumptive service connection under 38 C.F.R. § 3.309(d)(3) are not met, service connection may also be established if the evidence shows the existence of any other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). At the outset, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his heart disorder and basal cell carcinoma are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable. In terms of radiation exposure, the Board notes that the Veteran neither contends nor does the evidence show that he meets the definition of a "radiation-exposed veteran." That is, he did not participate in a "radiation-risk activity" as defined at 38 C.F.R. § 3.309(d). Rather, he contends that his radiation exposure is due solely to radiation through his proximity to Hiroshima during his service in Japan. A careful review of 38 C.F.R. § 3.311(b)(1) indicates that it must first be determined the Veteran was exposed to ionizing radiation before a referral for a dosage estimate. In this case, records from the period of active duty during which the Veteran claims exposure to radiation do not indicate that he participated in a recognized radiation risk activity such as an atmospheric detonation test or the occupation of Hiroshima or Nagasaki in1945 to 1946, nor has the Veteran so asserted. The RO requested a copy of the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). The U.S. Army Dosimetry Center researched the files for records of exposure to ionizing radiation for the Veteran and was unable to locate any records for him. Moreover, the Veteran has not provided any evidence demonstrating that he had ionizing radiation exposure. Thus, as the Veteran is not shown to have had ionizing radiation exposure, the presumptions for service connection under 38 C.F.R. § 3.311 are not applicable. Accordingly, the Board will proceed to evaluate the Veteran's claims under the regulations governing direct service connection. See Combee, 34 F.3d at 1043-1044; see also 38 C.F.R. § 3.303(d) (2016). In addition, the Veteran indicated that he was exposed to Agent Orange or another herbicide containing dioxin during his service in Japan. The Board acknowledges that the National Personnel Records Center found that there was no evidence that the Veteran was exposed to herbicides during his period of service. Nevertheless, presumption is not the sole method for showing causation. A claimant is not precluded from establishing service connection with proof of direct causation. See Combee, supra. Thus, Service treatment records reflect that the Veteran denied experiencing jaundice, shortness of breath, chest pain or pressure, high or low blood pressure, heart palpitations, or tumor, growths, cysts, or cancers at his March 1956 separation examination. The contemporaneous physical evaluation showed normal heart, vascular system, lungs and chest, skin, and lymphatic system. Chest x-ray was normal and blood pressure was 110/70. The Board acknowledges that the Veteran submitted Disability Benefit Questionnaires completed by his treating physician; diagnoses of congestive heart failure and basal cell carcinoma were indicated. However, no etiology opinions were provided. Private treatment records from Oklahoma University Medical Center, dated 2011 through 2013, reflect that the Veteran had a history of hypertension, heart disease, and atrial fibrillation. Examination showed paroxysmal supraventricular tachycardia. Concerning in-service disease, the Veteran's service treatment records do not indicate, and the Veteran does not contend, that his heart disorder (tachycardia and/or congestive heart failure) and basal cell carcinoma began during service or within one year of separation. A heart disorder and basal cell carcinoma were not manifest, identified, or diagnosed during service or within one year of separation. Furthermore, nothing suggests that he had characteristic manifestations of the disease processes during that time frame. See 38 C.F.R. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b). The evidence does not establish that the Veteran was exposed to either radiation or herbicides in service. Moreover, there is no competent evidence of a relationship between the Veterans basal cell carcinoma and his service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). As noted by the Federal Circuit, the Department must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to. Waters v. Shinseki, 601 F.3d 1274 (2010). The Board has considered the Veteran's statements. However, the Veteran's statements are insufficient to establish that the Veteran's heart disorder(s) and basal cell carcinoma are related to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the Veteran asserts that his current heart disorder and basal cell carcinoma are related to his active service and radiation exposure and/or herbicide exposure therein, his lay statements are not competent evidence of a nexus. The etiology of a heart disability and basal cell carcinoma, particularly the potential relationship to radiation and/or herbicide exposure, is not a simple question. The causation of such a condition requires medical and/or scientific training and knowledge that is beyond a lay person such as the Veteran. Accordingly, his lay statements of causation are not probative. In sum, there is no reliable evidence linking the Veteran's heart disorder(s) and basal cell carcinoma to service. See Madden v. Gober, 125 F.3d 1477, 1481 (1997). Post-service treatment records do not reflect any credible relationship between the Veteran's service and his heart disorder(s) and basal cell carcinoma. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). For the foregoing reasons, the preponderance of the evidence is against the claims for service connection of a heart disorder and basal cell carcinoma. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for a heart disorder is denied. Entitlement to service connection for basal cell carcinoma is denied. ___________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs