Citation Nr: 21067401 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-13 674 DATE: November 4, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for colon cancer, status post sigmoid colectomy and colostomy, is denied. Entitlement to service connection for squamous cell carcinoma is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran does not experience any current disability due to his claimed tinnitus which could be related to active service. 2. The record evidence shows that, in April 2017, VA was notified that the Veteran's service personnel records and service treatment records likely were destroyed in a catastrophic fire which occurred at the National Personnel Records Center in St. Louis, Missouri ("NPRC"), in July 1973 and cannot be reconstructed. 3. The record evidence shows that the Veteran did not respond to VA's April 2017 letter notifying him that his service personnel records and service treatment records likely were destroyed in a catastrophic fire at the NPRC in July 1973 and cannot be reconstructed and requesting that he provide any service personnel records or service treatment records in his possession. 4. The record evidence shows that, since his service separation, the Veteran has been diagnosed as having and treated for colon cancer and squamous cell carcinoma. 5. The record evidence does not show that the Veteran's colon cancer and squamous cell carcinoma are related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for service connection for colon cancer, status post sigmoid colectomy and colostomy, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 3. The criteria for service connection for squamous cell carcinoma have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1964 to September 1968 in the U.S. Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied the currently appealed claims. Although the Veteran requested a Board hearing when he perfected a timely appeal in May 2019, he failed to report for this hearing when it was scheduled in September 2021. Thus, his Board hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2020). As noted above, in April 2017, the NPRC notified VA that the Veteran's service personnel records and service treatment records likely were destroyed in a catastrophic fire which occurred at this facility in July 1973 and cannot be reconstructed. In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). As also noted above, following NPRC's notification that the Veteran's records were lost in a fire and could not be reconstructed, VA sent him a letter later in April 2017 advising him of this fact and requesting that he provide copies of any service records which were in his possession. He did not respond. The Board notes in this regard that the United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Having reviewed the record evidence, the Board finds that it is reasonably certain that the Veteran's service personnel records and service treatment records no longer exist and further efforts to attempt to obtain them would be futile. Service Connection 1. Entitlement to service connection for tinnitus The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for tinnitus. He essentially contends that in-service exposure to significant acoustic trauma caused or contributed to his claimed tinnitus. Contrary to these lay assertions, the record evidence shows that he does not experience any current disability due to his claimed tinnitus which could be attributed to active service. It is unfortunate that the Veteran's service treatment records were lost in the July 1973 fire at the NPRC and cannot be reconstructed. It also is unfortunate that he did not respond to VA's request that he provide copies of any service records which were in his possession. Nevertheless, the Veteran's post-service medical records show that, on VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in April 2017, he specifically denied experiencing recurrent tinnitus. He also denied experiencing tinnitus on subsequent VA outpatient treatment in June 2018. This persuasively suggests that the Veteran does not believe he experiences any current disability due to his claimed tinnitus which could be attributed to active service. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced tinnitus at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence other than the Veteran's unsupported lay assertions that he experiences current disability due to his claimed tinnitus which is related to active service. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for tinnitus. In summary, the Board finds that service connection for tinnitus is not warranted. 2. Entitlement to service connection for colon cancer, status post sigmoid colectomy and colostomy, and for squamous cell carcinoma The Board finally finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for colon cancer, status post sigmoid colectomy and colostomy, and for squamous cell carcinoma. He essentially contends that in-service exposure to an herbicide agent while in Vietnam caused or contributed to his colon cancer and squamous cell carcinoma. Contrary to his lay assertions, the record evidence does not support finding that he served in Vietnam or that his colon cancer and squamous cell carcinoma are related to active service. It again is unfortunate that the Veteran's service personnel records and service treatment records were lost in the July 1973 at the NPRC and cannot be reconstructed. It also is unfortunate again that he did not respond to VA's April 2017 request that he provide copies of any service records which were in his possession. The Board simply cannot accept the Veteran's unsupported lay assertion of service in Vietnam alone as support for finding that he was exposed to an herbicide agent during active service. And, as the RO noted below, receipt of the Vietnam Campaign Medal and Vietnam Service Medal also is insufficient by itself to conclude that the Veteran served in Vietnam. There instead must be evidence that he had in-country duty or visitation in Vietnam before his in-service exposure to an herbicide agent can be conceded. See also Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). He further does not contend, and the evidence does not show, that he served in the official waters offshore of the Republic of Vietnam (i.e., Blue Water Navy service) such that in-service exposure to an herbicide agent can be conceded under the Blue Water Navy Act. The Board next notes that it is undisputed that, since his service separation, he has been diagnosed as having and treated for both colon cancer and squamous cell carcinoma. Given the Veteran's failure to cooperate with VA by not responding to the April 2017 request for any service records in his possession and his failure to report for the Board hearing which he requested when it was scheduled in September 2021, the Board finds that the low threshold for providing him with VA examination(s) to determine the nature and etiology of either his colon cancer or his squamous cell carcinoma has not been met. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran must be prepared to meet his or her obligations by cooperating with VA efforts to provide an adequate medical examination. See also Olson v. Principi, 3 Vet. App. 480 (1992). By failing to respond to VA's reasonable request for service records in his possession and failing to report for the Board hearing which he requested, he has demonstrated that he is not prepared to meet his obligations in this appeal. More importantly, the post-service VA and private clinicians who treated him for both of these cancers in recent years did not relate either of them to active service or any incident of service, including as due to his alleged in-service exposure to an herbicide agent. Nor does it appear that the Veteran reported any history of in-service exposure to an herbicide agent during his years of treatment for these cancers. This undercuts his subsequent assertions to VA concerning his alleged in-service exposure to an herbicide agent. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for colon cancer, status post sigmoid colectomy and colostomy, and for squamous cell carcinoma. In summary, the Board finds that service connection for colon cancer, status post sigmoid colectomy and colostomy, and for squamous cell carcinoma, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.