Citation Nr: 1822682	
Decision Date: 04/16/18    Archive Date: 04/25/18

DOCKET NO.  14-33 453	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to service connection for multiple myeloma associated with Agent Orange exposure (also claimed as carbon tetrachloride exposure).


ATTORNEY FOR THE BOARD

S. An, Associate Counsel


INTRODUCTION

The Veteran had active duty from September 1971 to November 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Baltimore, Maryland.  

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


FINDING OF FACT

The preponderance of the evidence of record is against a finding that the Veteran has a current disability of multiple myeloma associated with Agent Orange exposure or carbon tetrachloride exposure.


CONCLUSION OF LAW

The criteria for service connection for multiple myeloma have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met in a letter issued in March 2010, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009).

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records and private treatment records have been obtained.  Additionally, the Veteran declined the opportunity to testify before the Board.   

No VA examination was requested in relation to the issue of service connection for multiple myeloma associated with Agent Orange exposure.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for multiple myeloma associated with Agent Orange exposure. See 38 U.S.C. § 5103A(a).  The weight of evidence is against a finding of a current diagnosis of multiple myeloma.  The weight of the evidence is also against the findings that multiple myeloma had its onset during active service or within one year of separation from active service or competent evidence even suggesting that multiple myeloma may be associated with service.  Absent the required elements identified above, VA has no duty to provide a VA examination or obtain an opinion in this case.

Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81.  This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the claims.  Essentially, beyond the Veteran's statements, no evidence is of record to suggest that the Veteran has a diagnosis of multiple myeloma or such condition began during or were otherwise caused by his active service.  Thus, his statements alone are insufficient to trigger VA's duty to provide an examination.  

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Lastly, the Board notes that it has thoroughly reviewed all the evidence of record in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).

Service Connection

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. §3.303.  Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (West 2014).  Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. §1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e).  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. Id.  

The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a).  Notably, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996).

According to VA Adjudication Procedures Manual, the presumption of service connection of diseases associated herbicide exposure is extended to Vietnam-era veterans who served in Thailand at certain Royal Thai Air Force Bases, including U-Tapao, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then VA should concede herbicide exposure on a direct or facts found basis. See VA's Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii.2.C.10.q.

Multiple Myeloma

In February 2010, the Veteran filed a claim for Agent Orange exposure and carbon tetrachloride exposure, which was denied in a September 2011 rating decision.  

The Veteran asserts exposure to herbicides and carbon tetrachloride during his service at the U-Tapao Air Force Base in Thailand.  Specifically, he states he was exposed to Agent Orange while working near the perimeter as an Air Force jet engine mechanic, as well as constant exposure to carbon tetrachloride in the jet engine shop.  The Veteran subsequently stated that carbon tetrachloride exposure "might cause a multiple myeloma." See Notice of Disagreement dated December 2011 and VA Form 9 dated September 2014.    

As a preliminary matter, the Board finds credible evidence of record to indicate that the Veteran's duties placed him near the perimeter of the air base.  The Veteran's DD Form 214 and military personnel records make clear that during the period from September 1973 to October 1974, he was stationed at U-Tapao Royal Air Force Base in Thailand with a military occupational specialty as Aircraft and Engine Mechanic.  Accordingly, exposure to herbicides is presumed for purposes of this review. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  

With that said, however, the Board finds that the record is absent for a current disability for which entitlement for service connection can be established.

The Board finds the weight of the evidence is against the finding of a present disability of multiple myeloma associated with Agent Orange exposure or carbon tetrachloride exposure, and service connection is not warranted.  In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Specifically, service connection requires a showing of a current disability.  A current disability is shown if the claimed condition is present at the time of the claim or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

In this case, there is no evidence a diagnosis of multiple myeloma associated with Agent Orange exposure or carbon tetrachloride exposure at any point during the pendency of this appeal.  Further, there is no indication of a chronic disability manifested by the Veteran's complaints of an abnormal blood test result which might lead to multiple myeloma condition.  Rather, the objective evidence of record clearly shows no history of multiple myeloma or such present disability.  Most recently, in January 2018, VA treatment records indicated that the Veteran was provided an evaluation in conjunction with a registry process that showed no indication of multiple myeloma or any diagnosis of the claimed condition.  Medical evidence of record including VA treatment and private treatment records, also consistently demonstrate negative findings for a diagnosis of multiple myeloma associated with Agent Orange exposure or carbon tetrachloride exposure.   In this regard, the Board finds the January 2018 VA Agent Orange evaluation report significantly probative in determining whether the Veteran has substantiated his claims for service connection.  Accordingly, the Board concludes that the record is absent for a current disability for which entitlement for service connection can be established.  

To the extent that the Veteran claims exposure to carbon tetrachloride exposure which "might cause a multiple myeloma," his lay assertions are not considered competent medical evidence.  Although he is certainly capable of describing the history in this case and competent to report symptoms which are within the realm of his personal experience, he is not competent to render a medical diagnosis of multiple myeloma associated with Agent Orange exposure or carbon tetrachloride exposure, as this requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313 (2009).  For this purpose, the Veteran's statements, standing alone, have little probative value, and the Board assigns more weight to the medical evidence of record.  

Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for multiple myeloma associated with Agent Orange exposure or carbon tetrachloride exposure.  The benefit-of-the-doubt doctrine is not for application, and this claim must be denied. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  




ORDER

Service connection for multiple myeloma associated with Agent Orange exposure or carbon tetrachloride exposure is denied. 



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs