Citation Nr: 21011033 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-43 261 DATE: February 26, 2021 ORDER Entitlement to service connection multiple myeloma is denied. REMANDED Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death is remanded. Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for cancer of the larynx, bronchus, and trachea is remanded. Entitlement to service connection for brain cancer is remanded. Entitlement to service connection for soft tissue sarcoma is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran had multiple myeloma at any time during or proximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple myeloma have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1969 to February 1973. The Veteran passed away in June 2015. The appellant is the Veteran’s surviving spouse and has been accepted as substitute for purposes of the Veteran’s claims pending at the time of his death. In June 2020, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the appellant nor her representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The appellant should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for multiple myeloma The Veteran submitted a claim for entitlement to service connection for multiple myeloma, which he contended was due to in-service exposure to herbicide agents, asbestos, lead paint, and chipping dust. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not was related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current disability of multiple myeloma at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The medical treatment records show that the Veteran was diagnosed with adenocarcinoma of the lungs with metastasis to the brain. His death certificate lists as the cause of death metastatic bronchogenic carcinoma. The medical treatment records and death certificate do not show that the Veteran was diagnosed with multiple myeloma during his lifetime or following his death. Although the Veteran believed that he had a current diagnosis of multiple myeloma, he was not considered competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge of different diseases and their pathology. The Veteran has not been shown to have had the medical training and knowledge necessary to diagnose a disease such as multiple myeloma. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The appellant has also not been shown to have such medical training and knowledge. Consequently, the assertions from the Veteran and the appellant are not probative in showing that the Veteran was diagnosed with multiple myeloma during his lifetime or following his death. In summary, the record does not show that the Veteran was diagnosed with multiple myeloma at any time during or recent to the filing of the claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for multiple myeloma. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to DIC based on service connection for the cause of the Veteran’s death is remanded. 2. Entitlement to service connection for lung cancer is remanded. 3. Entitlement to service connection for cancer of the larynx, bronchus, and trachea is remanded. 4. Entitlement to service connection for brain cancer is remanded. 5. Entitlement to service connection for soft tissue sarcoma is remanded. Prior to his death, the Veteran contended that his adenocarcinoma of the lungs with metastasis to the brain was due to in-service exposure to herbicide agents, asbestos, lead paint, and chipping dust. He reported that he had service on the Mekong Delta in the Republic of Vietnam in November 1969. The appellant and other third-party witnesses have said that the Veteran would often talk about his service along the coastal waters of the Republic of Vietnam, to include on a PT boat along the Mekong Delta. The Veteran’s service personnel records show that he served aboard the USS Kennedy (DD850) and the USS Joseph Hewes (DE-1078). The claims were previously denied due to a lack of service on the landmass or within the inland waterways of the Republic of Vietnam. The United States Court of Appeals for the Federal Circuit has since issued a decision expanding the eligibility for presumptive service connection to all veterans who served on ships in the territorial seas—within 12 nautical miles—of the Republic of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Efforts have not yet been made to determine whether the USS Kennedy (DD850) or the USS Joseph Hewes (DE-1078) traveled within 12 nautical miles of the Republic of Vietnam while the Veteran was stationed on them such that he may be presumed to have been exposed to herbicide agents during his active service, and a remand is required so that such efforts may be made. Efforts must also be made to verify whether the Veteran may have come within 12 nautical miles of the Republic of Vietnam while serving on a PT boat during his time aboard the USS Kennedy (DD850) or the USS Joseph Hewes (DE-1078). Regarding the contention that the disabilities at issue on appeal were caused by in-service exposure to asbestos, the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was Boatswain’s Mate. Although not binding on the Board, the VA Adjudication Procedures Manual (M21-1) contains relevant provisions that include a table that characterizes the probability of exposure to asbestos for various Navy MOSs, ranging from minimal to highly probable. A Boatswain’s Mate is characterized as having a minimal probability of exposure. Therefore, asbestos exposure is conceded in this case. As such, the Board finds that if it is determined that herbicide agents exposure may not be presumed in this case, then an opinion should be obtained as to whether the Veteran’s adenocarcinoma of the lungs with metastasis to the brain diagnosed during his lifetime or the metastatic bronchogenic carcinoma listed on his death certificate may be related to the conceded in-service exposure to asbestos. The matters are REMANDED for the following action: 1. Perform the development necessary to verify whether the USS Kennedy (DD850) or the USS Joseph Hewes (DE-1078) traveled within 12 nautical miles of the Republic of Vietnam while the Veteran was stationed on them. Efforts must also be made to verify whether the Veteran may have come within 12 nautical miles of the Republic of Vietnam while serving on a PT boat during his time aboard the USS Kennedy (DD850) or the USS Joseph Hewes (DE-1078). To the extent that any request for information requires a specified limited time period, such as a 60-day period, submit multiple requests to cover the entire periods the Veteran served aboard the USS Kennedy (DD850) and the USS Joseph Hewes (DE-1078). See Gagne v. McDonald, 27 Vet. App. 397, 404 (2015). 2. If it is determined that the USS Kennedy (DD850) and the USS Joseph Hewes (DE-1078) did not come within 12 nautical miles of the Republic of Vietnam while the Veteran was serving aboard them and that the Veteran did not come within 12 nautical miles of the Republic of Vietnam while serving on a PT boat, obtain an opinion from an appropriate clinician regarding whether the Veteran’s adenocarcinoma of the lungs with metastasis to the brain diagnosed during his lifetime or the metastatic bronchogenic carcinoma listed on his death certificate at least as likely as not (50 percent probability or greater) were due to in-service exposure to asbestos. For purposes of providing the opinion, the clinician must note that in-service exposure to asbestos is conceded in this case because the Veteran’s Navy military occupational specialty of Boatswain’s Mate is known to have a minimal probability of exposure to asbestos. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.