Citation Nr: 21005278 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-00 717A DATE: February 1, 2021 ISSUES 1. Entitlement to service connection for soft tissue sarcoma, to include as due to exposure to herbicides. 2. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and/or bronchitis, to include as due to exposure to herbicides. 3. Entitlement to service connection for a skin disability, to include as due to exposure to herbicides. ORDER Entitlement to service connection for soft tissue sarcoma, to include as due to exposure to herbicides is denied. REMANDED Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and/or bronchitis, to include as due to exposure to herbicides is remanded. Entitlement to service connection for a skin disability, to include as due to exposure to herbicides is remanded. FINDING OF FACT The competent and credible evidence does not reflect a diagnosis of soft tissue sarcoma during the pendency of the appeal. CONCLUSION OF LAW The criteria for service connection for soft tissue sarcoma have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.309 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1966 to February 1970, to include combat service in the Vietnam War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Board notes that the Veteran's entire claims file, including his service treatment records, service personnel records, and nearly all documents prior to a June 2001 Supplemental Statement of the Case (SSOC), appears to have been lost over the course of a prior appeal. RO has documented its efforts to locate the complete records. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of the missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). By way of background, the Veteran had previously applied for entitlement to service connection for respiratory and skin disabilities, which were each denied in rating decisions from an unknown point prior to June 2001. The Veteran subsequently filed a claim to reopen those previously denied claims, which were again denied in a rating decision from April 2013. The Veteran then filed a timely Notice of Disagreement (NOD) in December 2013, in which he distinguished that his “skin condition while I was in Vietnam” was separate from the issue of “some type of cancer.” He also disagreed with the RO denying his claim for entitlement to service connection for a respiratory disability (claimed as bronchitis). The RO issued the Veteran a statement of the case (SOC), noting that there were three issues on appeal: the skin disability, the soft tissue sarcoma, and the respiratory disability, each to include as due to exposure to herbicides. The Veteran then filed a timely VA Form 9 in January 2015 and requested a hearing. The Veteran’s claims were certified to the Board in September 2016. The Veteran was scheduled for a hearing, however he subsequently submitted correspondence in January 2019 indicating his desire to withdraw the hearing request. The Board therefore deems the hearing request withdrawn pursuant to 38 C.F.R. § 20.702 (e). The Veteran’s claims then arrived at the Board in July 2019. The Board afforded the Veteran the benefit of the doubt, and considered that a portion of his claims file was lost, and found that it was at least as likely as not that new and material evidence had been received that was sufficient to reopen the previously decided claims of entitlement to service connection for the respiratory and skin disabilities. Those two issues, in addition to entitlement to service connection for soft-tissue sarcoma, were then remanded for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 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. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Other than noting the missing records, the Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Notwithstanding, service connection for a disability claimed as being due to presumptive exposure may still be established by showing that the disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for soft tissue sarcoma, to include as due to exposure to herbicides. The Veteran has claimed that he has a diagnosis of soft-tissue sarcoma, which is due to his exposure to agent orange during his service in the Republic of Vietnam. In the Veteran’s NOD from December 2013, he wrote that he was seeking service connection for “sarcoma due to agent orange exposure.” Later in that same NOD, the Veteran wrote that he disagreed with the rating decision as it relates to “skin cancer,” and that his claims file contains “medical records [that] will show some type of cancer.” As stated above, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). Soft-tissue sarcoma is one such disease. 38 C.F.R. § 3.309 (e). Having said that, the Veteran does not have a current diagnosis of soft-tissue sarcoma. The Board has reviewed the Veteran’s VAMC and private medical records. Those records due not indicate that the Veteran has a current diagnosis of any form of sarcoma, during the pendency of the appeal. The only skin-related disability associated with the Veteran is “hydradenitis suppurative,” which the Board will address in the subsequent section on entitlement to service connection for a skin disability. Pursuant to the Board’s Duty to Assist, this issue was remanded in July 2019 for any treatment records that may indicate that the Veteran has a current diagnosis of skin cancer and/or soft-tissue sarcoma. The Veteran’s claims file has been updated with recent VAMC records; however those records do not indicate that the Veteran has a current diagnosis. The Board also notes that private treatment records from CHI Memorial Primary Care Associates Atrium have been associated with the claims file, however a review of those records does not include any such diagnosis of soft-tissue sarcoma. There is no evidence that the VA examiners or consultants, nor the private examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the existence of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not submitted any further evidence, to include from his private physician, indicating that he has a current diagnosis of soft-tissue sarcoma. In consideration of the above, the Board finds that the Veteran does not have a current diagnosis for soft-tissue sarcoma. 38 C.F.R. § § 3.303(a). Additionally, the Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) (“pain alone can serve as a functional impairment and therefore qualify as a disability”). That Federal Circuit decision qualified that holding, however: “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that [her] pain reaches the level of functional impairment of earning capacity.” Id. at 1365. In this case, however, during the pendency of the appeal, the Veteran did not claim that soft-tissue sarcoma has caused him pain or any other symptoms productive of functional loss. Furthermore, the Veteran did not claim that his sarcoma had resulted in a functional loss. Thus, the Veteran does not have a present disability manifested by pain or any other symptom that could be identified as part of his claim for service connection for diabetes mellitus pursuant to Saunders. Therefore, the first criteria for service connection is not met for the claimed disability, as there is no evidence that the Veteran had a current diagnosis of soft-tissue sarcoma. 38 C.F.R. § § 3.303(a). As far as the second and third criteria for service connection, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability during the period of the appeal. See 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, in the absence of competent evidence showing a current diagnosis of soft-tissue sarcoma, it is unnecessary to address the remaining elements of the claims for entitlement to service connection. See Brammer, 3 Vet. App. at 225. Thus, the Board finds that entitlement to service connection for soft-tissue sarcoma is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and service connection for soft-tissue sarcoma is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. REASONS FOR REMAND The Board incorporates its discussion from the sections above by reference. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and/or bronchitis; and entitlement to service connection for a skin disability, each to include as due to exposure to herbicides are both remanded. The Veteran has claimed that his respiratory and skin disabilities are each due to his exposure to herbicides, which occurred during his service in the Republic of Vietnam. As noted above, the Veteran’s claims were both before the Board in July 2019. In that decision, it was noted that, with the exception of chloracne or other acneform disease consistent with chloracne, skin disabilities are not among the disorders for which service connection is presumed given presumptive exposure to herbicides. 38 C.F.R. § 3.309(e). Furthermore, other than respiratory cancers, respiratory disabilities are also not on the list of diseases deemed associated with herbicide exposure under current law. 38 C.F.R. § 3.309 (e). Despite the presumptive regulations, the Veteran may still establish service connection based on exposure to herbicides with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As a result, in July 2019, the Veteran’s claims were each remanded for a VA examination, and for etiological opinions to be rendered. That examination occurred in December 2019. The examiner indicated that the Veteran was seen in person, and that the claims file was reviewed. As it relates to the skin disability, a diagnosis of hydradenitis suppurativa was confirmed. As it relates to the respiratory disability, the Veteran’s diagnosis of COPD was confirmed. There is no indication that clinical testing was performed, however the Veteran’s claims file was reviewed. For each claimed disability, the examiner provided a negative etiological opinion, finding that each disability was less likely than not due to the Veteran’s active duty service. Following the examination, the Veteran submitted a statement in September 2020. The Veteran wrote that when he arrived at his C&P examination in December 2019, the Veteran “gave the doctor the papers [and] she said I could go.” He wrote that he “was not examined by the doctor.” The Veteran wrote that “the order that was given on 7/25/2019 (the date of the Board Decision) was for me to be re-examined for skin [and] respiratory.” He then wrote again that “I never was examined by no doctor.” As a result, the Veteran has essentially argued that the December 2019 VA examination is inadequate, insofar as he was not actually examined. The Board notes that the December 2019 examinations both indicate that the Veteran was given an in-person review, however there are limited findings of any clinical testing being performed. There is also no indication that the Veteran’s lay statements were considered, which would be consistent with the Veteran’s claim that he was not present to offer them. As noted above, those lay statements are particularly important, as a large portion of the Veteran’s claims file has been lost. The Board is also reminded that, as per the July 2019 Board Remand directives, the Veteran was to be given an in-person examination. And while the Board notes that the Veteran is not competent to self-diagnosis either disability, nor provide etiological opinions for either disability, he is entitled to report as to that which he experiences, including whether or not he was actually present during the VA examination. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the December 2019 VA examination is inadequate. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran is to be given another VA examination for each claimed disability. He must be seen in person, and his lay statements must be incorporated into the etiological opinion as provided by the examiner, for each disability. The matters are REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment records. Should they exist, associate them with the electronic claims file. 2. Schedule the Veteran for a VA examination(s) (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) with an appropriate clinician(s), to provide an opinion regarding the etiology of the claimed respiratory and skin disabilities, to include as due to the Veteran’s exposure to herbicides. Different examinations should be scheduled with appropriate clinicians as is deemed necessary. The examiner must note that the claims file was reviewed, and that the lay statements of the Veteran were addressed. After reviewing the claims file, the examiner should opine as to the following: (a.) As it relates to the Veteran’s skin disability, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s skin disability is related to his active duty service, to include his exposure to toxic herbicides while stationed in the Republic of Vietnam? The examiner is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran’s skin disability is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. The examiner is reminded that in a June 2001 Supplemental Statement of the Case (SSOC), it was noted that the Veteran was treated for atopic dermatitis during his active duty service and a June 2012 VA treatment record in which the Veteran reported recurrent boils. (b.) As it relates to the Veteran’s respiratory disability, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s respiratory disability is related to his active duty service, to include his exposure to toxic herbicides while stationed in the Republic of Vietnam? Again, the examiner is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran’s respiratory disability is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. The examiner is reminded that in a June 2001 Supplemental Statement of the Case (SSOC), it was noted that VA treatment records from 1998 showed a 25-year history of chronic bronchitis, a June 2012 VA treatment record noting a history of COPD and current chronic respiratory symptoms, and the Veteran's statement in his January 2015 substantive appeal (VA Form 9) that he had no history of respiratory conditions prior to his service in Vietnam. The rationale for any opinion expressed should be provided. Note that the Veteran's claims file prior to the June 2001 SSOC, including but not limited to his service treatment and personnel records, have been lost and a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate 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.