Citation Nr: 0534474 Decision Date: 12/22/05 Archive Date: 01/10/06 DOCKET NO. 03-09 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for supraglottic laryngeal cancer. 2. Entitlement to service connection for non-Hodgkin's lymphoma. 3. Entitlement to service connection for chloracne. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from July 1962 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claims of entitlement to service connection for supraglottic laryngeal cancer, non-Hodgkin's lymphoma and chloracne as the result of exposure to herbicides, specifically Agent Orange. The veteran filed his original claim for service connection for chloracne, bilateral hearing loss and asthma in March 2001. In June 2001 the veteran submitted an additional claim for service connection for supraglottic laryngeal cancer and non-Hodgkin's lymphoma. These two claims were combined in the rating decision dated May 2002. The rating decision denied all of the issues claimed. The veteran submitted a notice of disagreement in August 2002 for only his claims relating to Agent Orange exposure. As such, the issues of bilateral hearing loss and asthma are not before the Board. In December 2002 the RO issued the veteran a statement of the case and in March 2003 the veteran timely perfected his appeal. In October 2004 the veteran was afforded a Travel Board hearing with the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims folder. FINDINGS OF FACT 1. The veteran did not have active service in the Republic of Vietnam during the Vietnam era, and the evidence does not otherwise establish that he was exposed to Agent Orange in service. 2. The veteran's supraglottic laryngeal cancer began many years after service and is not the result of a disease or injury in service. 3. The veteran does not have non-Hogkin's lymphoma or chloracnes or any disability resulting from non-Hodgkin's lymphoma or chloracne. CONCLUSIONS OF LAW 1. Supraglottic laryngeal cancer was not incurred in or aggravated by active service, nor was it due to exposure to herbicide agents sustained in service. 38 U.S.C.A. §§ 1110, 5100, 5103, 5103A, 5107, 7104 (West Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2005). 2. Non-Hodgkin's lymphoma was not incurred in or aggravated by active service, nor was it due to exposure to herbicide agents sustained in service. 38 U.S.C.A. §§ 1110, 5100, 5103, 5103A, 5107, 7104 (West Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2005). 3. Chloracne was not incurred in or aggravated by active service, nor was it due to exposure to herbicide agents sustained in service. 38 U.S.C.A. §§ 1110, 5100, 5103, 5103A, 5107, 7104 (West Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with the Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Seattle RO issued the veteran a duty to assist letter in November 2001 that did not comply with the requirements of the VCAA. To comply with the aforementioned VCAA requirements, VA has satisfied the following four requirements. First, VA must inform the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(West 2002) and 38 C.F.R. § 3.159(b)(1) (2005). The RO issued a letter to the December 2004 informed the veteran of the elements necessary to substantiate his claim. Second, VA must inform the appellant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2005). The December 2004 letter informed the veteran that VA would obtain relevant records from any Federal agency. This was to include medical records from the military, VA Medical Centers (including private facilities where VA authorized treatment) or the Social Security Administration. The veteran was also informed that VA would make reasonable efforts to obtain relevant records not held by any Federal agency. This could include records from State or local governments, private doctors and hospitals, or current or former employers. Third, VA must inform the appellant of the information and evidence the appellant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2005). The December 2004 letter requested the veteran provide the dates of medical treatment during service. Specifically, the letter requested the names and exact locations of the dispensary, hospital or other facility where the veteran received treatment for his claimed conditions as well as his rank and organization (division, regiment, battalion, company) at the time of treatment. The letter requested statements from persons who knew the veteran when he was in service and knew of any disability he had while on active duty. The statements were to include how and when these individuals became aware of the veteran's condition. If the person making the statement was on active duty at the time, he/she was asked to provide his/her service number and unit of assignment. The letter also requested any records and statements from service medical personnel (nurses, corpsmen, medics, etc.), employment physical examinations, medical evidence from hospitals, clinics and private physicians of treatment since military service, pharmacy prescription records and insurance examination reports. Finally, VA must request that the appellant provide any evidence in the appellant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2005). It is unclear from the record whether the veteran was explicitly asked to provide "any evidence in [his] possession that pertains" to his claims. See 38 C.F.R. § 3.159(b)(1) (2005). Nevertheless, as a practical matter the Board finds that he has been notified of the need to provide such evidence, for the following reasons. The RO's November 2001, April 2002 and December 2004 letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to the RO. In addition, the December 2004 Supplemental Statement of the Case contained the complete text of 38 C.F.R. § 3.159(b)(1), which included such notice. Under these circumstances, the Board is satisfied that the appellant has been adequately informed of the need to submit relevant evidence in his possession. He has also been provided with a meaningful opportunity to participate in the claims process. In view of the procedures that have been undertaken in this claim, further development is not needed to comply with VCAA. The appellant has been informed of the information and evidence needed to substantiate his claims, and he has been made aware of how VA would assist him in obtaining evidence and information. He has not identified any additional, relevant evidence that has not been requested or obtained. For the aforementioned reasons, there is no reasonable possibility that further assistance would aid in the substantiation of the claim. II. Background The veteran served on active duty from July 1962 to October 1964. The veteran's service medical records do not reflect in- country service in the Republic of Vietnam. The service medical records do not reflect exposure to any herbicides, to include Agent Orange, nor was there any evidence of treatment for laryngeal cancer, non-Hodgkin's lymphoma or chloracne in service or within the one year presumptive period. In December 1991 the veteran underwent excision of a large lipoma of the posterior scapular region of the left shoulder. A progress note dated May 2001, reviewed by D.R., M.D., indicated that the veteran's skin had no rash or prominent lesions. In June 2001 the veteran filed his claims for service connection due to Agent Orange exposure. The Board notes the medical evidence of record indicated that the veteran had a 30+ pack per year history of tobacco and alcohol use. Later in June 2001 the veteran underwent a total laryngectomy with right modified radical neck dissection. A treatment report dated July 2001 provided an additional diagnosis of metastasis papillary thyroid carcinoma. The veteran later underwent a total thyroidectomy. Letters dated January and April 2002 requested that the veteran provide any copies of service medical records he might have as well as any information about any service he had in Vietnam. The veteran did not reply, resulting in the RO calling him. During the telephone conversation between the RO and the veteran, the veteran stated that when he was in service he was responsible for loading drums of Agent Orange into aircraft. The veteran reported that a forklift had the forks set too high and cut a hole in two of the drums, resulting in the veteran being saturated with the contents. The veteran and others allegedly wrapped the drums with duct tape and placed the drums into either a C-130 or C- 118 aircraft. The veteran was part of the Naval Air Transport Squadron 22 (VR-22) where he stated he was rated as an airman and his duties included doing whatever was necessary. He reported this incident occurred in Norfolk, Virginia in mid-June 1964. In October 2004 the veteran participated in a Travel Board hearing with the undersigned Veterans Law Judge. The veteran stated that he believed he was exposed to the Agent Orange when the forklift he was standing near punctured a drum with orange stripes on it. He stated that the contents of the container splashed on his face and upper body. He stated that this was Agent Orange and that he now suffers from exposure to it. The veteran also referred to his diagnosis of non-Hodgkin's lymphoma when he had surgery in 1991. The veteran additionally stated that his physician then told him that he suffered from chloracne. III. Pertinent Law and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West Supp. 2005). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2005); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). The resolution of issues pertinent to a determination of entitlement to service connection must be considered on the basis of the places, types, and circumstances of service as shown by service records, the official history of each organization in which the veteran served, and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. See 38 U.S.C.A. § 7104(a) (West Supp. 2005); 38 C.F.R. § 3.303(a) (2005); see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 507 (1995); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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. See 38 C.F.R. § 3.307(a)(6)(iii) (2005). The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft- tissue sarcoma (includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, malignant ganglioneuroma). See 38 C.F.R. § 3.309(e) (2005). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e) (2005). A disease associated with exposure to certain herbicide agents listed in § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service, provided that such disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a) (2005). The Secretary of Veterans Affairs (Secretary) 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. 341-346 (1994); see also Notice, 61 Fed. Reg. 41-442-449 (1996). The Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. These include hepatobiliary cancers, nasal/nasopharyngeal cancer, bone cancer, female reproductive cancers, breast cancer, renal cancer, testicular cancer, leukemia, abnormal sperm parameters and infertility, cognitive and neuropsychiatric disorders, motor/coordination dysfunction, chronic peripheral nervous system disorders, metabolic and digestive disorders, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, gastrointestinal tumors, bladder cancer, brain tumors, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232-59243 (1999). IV. Reasons and Bases Supragottic Laryngeal Cancer The veteran is seeking service connection for supraglottic laryngeal cancer. Essentially, he contends that Agent Orange exposure during his time in service in Norfolk, Virginia caused the claimed condition. As discussed above, in general, in order for service connection to be granted three elements must be satisfied: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Caluza. Concerning Caluza element (1), current disability, the evidence of record substantiate the claim that the veteran currently suffers from laryngeal cancer. As such, element (1) has been satisified. With respect to Caluza element (2), in-service incurrence of disease or injury, the veteran's service medical records are silent for any mention of a diagnosis or treatment of laryngeal cancer in service. Accordingly, there is no finding of any in-service incurrence of disease. With respect to in-service injury, exposure to herbicides in Vietnam cannot be presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2005). By the veteran's own admission during his Travel Board hearing in October 2004, he was not stationed in- country in Vietnam. Laryngeal cancer is one of the diseases listed in 38 C.F.R. 3.309(e) as an Agent Orange presumptive disease. However, the veteran did not serve in Vietnam; and, although he contends that he was exposed to Agent Orange while working in Norfolk, Virginia, the evidence is insufficient to support a finding of such Agent Orange exposure. There is no reason to question the veteran's sincerity regarding his experiences in service. Nontheless, his contentions regarding Agent Orange exposure involve events that occurred more than forty years ago, and, according to the veteran's own testimony, neither he nor his fellow workers thought much about these events at the time of their incurrence. In the absence of any documentation that incidents involving leaks of Agent Orenage occurred in Norfolk in 1964, the veteran's testimony regarding the specific details of these remote events-events admittedly not considered serious matters at the time-is not sufficient to support a finding of fact that exposure to Agent Orange actually occurred. Separate from the provisions governing exposure to herbicides, service connection for a malignancy may be granted if the disease becomes manifest within the first year after service. See 38 C.F.R. §§ 3.307, 3.309. In this case, however, the veteran does not contend, and the evidence does not show, that his cancer had its onset within one year after service. The evidence of record also does not support a grant of service connection for laryngeal cancer on a direct basis. The veteran's service enlistment examination in July 1962 indicated that the veteran was in good health and was deemed qualified for enlistment. The veteran's service medical records did not note any treatment for a problem with the larynx. On the veteran's separation SF 88 examination in October 1964, the veteran was deemed to be in good health and qualified for release from active duty. Post-service evidence shows that the first documentation of laryngeal cancer was made in 2001, almost 40 years after the veteran's discharge from military service. In June 2001 the veteran underwent a total laryngectomy with right modified radical neck dissection. A treatment report dated July 2001 provided an additional diagnosis of metastasis papillary thyroid carcinoma. The veteran later underwent a total thyroidectomy. However, this treatment record does not, in any way, suggest that the veteran's laryngeal cancer originated during his military service. The Board also notes that the veteran sustained a 30+ pack per year nicotine habit. None of the remainder of the treatment records suggested any causal relationship between laryngeal cancer and the veteran's military service. The Board must conclude that the evidence of record does not demonstrate a causal link or nexus between the veteran's laryngeal cancer and his military service. Consequently, service connection for supraglottic laryngeal cancer on a direct basis must be denied. In conclusion, the Board finds that the preponderance of the probative evidence of record shows that the veteran's supraglottic laryngeal cancer is neither causally related to his active service or any incident therein, including his claimed exposure to Agent Orange. As the preponderance of the evidence is against the veteran's claim of service connection for laryngeal cancer, the benefit of the doubt doctrine is not for application in the instant case, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Non-Hodgkin's Lymphoma The veteran is seeking service connection for non-Hodgkin's lymphoma. Essentially, he contends that Agent Orange exposure during his time in service in Norfolk, Virginia caused the claimed condition. As discussed above, in general, in order for service connection to be granted three elements must be satisfied: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Caluza. Concerning Caluza element (1), current disability, there is no competent medical evidence that the veteran currently has non-Hodgkin's lymphoma. As described in the factual background section above, the medical treatment records in evidence do not sustain the veteran's claim that he suffers from non-Hodgkin's lymphoma. There are no diagnoses anywhere in the claims folder that support this contention. The Board noted that in December 1991, the veteran underwent surgery to excise a large lipoma from his left shoulder. This procedure was successful without any residual side effects. In short, the competent medical evidence of record does not support a conclusion that non-Hodgkin's lymphoma currently exists. The only evidence to the contrary emanates from the veteran himself. To the extent that the veteran is contending that he has peripheral neuropathy, it is now well established that as a layperson without medical training, he is not competent to opine on medical matters such as diagnosis or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The veteran's own statements to this effect are accordingly entitled to no weight of probative value. As such, the veteran's claim fails with regard to element (1). In the absence of a finding of the disability in question, there can be no basis for the grant of service connection. Chloracne The veteran is seeking service connection for chloracne. Essentially, he contends that Agent Orange exposure during his time in service in Norfolk, Virginia caused the claimed condition. As discussed above, in general, in order for service connection to be granted three elements must be satisfied: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Caluza. Concerning Caluza element (1), current disability, there is no competent medical evidence that the veteran currently has chloracne. As described in the factual background section above, there are of record reports of treatment for the veteran's laryngeal cancer, thyroid disabilities and his lipoma removal procedure. None of the evidence of record supports the veteran's claim that he suffers from chloracne. The Board notes that a progress noted dated May 2001, reviewed by D.R., M.D., indicated that the veteran's skin had no rash or prominent lesions. In short, the competent medical evidence of record does not support a conclusion that chloracne currently exists. The only evidence to the contrary emanates from the veteran himself. To the extent that the veteran is contending that he has chloracne, it is now well established that as a lay person without medical training he is not competent to opine on medical matters such as diagnosis or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The veteran's own statements to this effect are accordingly entitled to no weight of probative value. As such, the veteran's claim fails with regard to element (1). In the absence of the disability claimed, there can be no basis for the grant of service connection. ORDER Entitlement to service connection for supraglottic laryngeal cancer is denied. Entitlement to service connection for non-Hodgkin's lymphoma is denied. Entitlement to service connection for chloracne is denied. ____________________________________________ G.H. Shufelt Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs