Citation Nr: 0534524 Decision Date: 12/22/05 Archive Date: 01/10/06 DOCKET NO. 04-23 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for residuals of leiomyosarcoma of the stomach, to include as due to herbicide exposure. 2. Entitlement to an effective date earlier than September 28, 2004, for the grant of service connection for hypertension. 3. Entitlement to an effective date earlier than September 28, 2004, for the grant of service connection for coronary artery disease status post myocardial infarction. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD R.J. Giannecchini, Counsel INTRODUCTION The veteran had active military service from October 1963 to January 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal of January 2004 and January 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2004, the veteran and his spouse testified during a hearing before RO personnel; a transcript of that hearing is associated with the claims file. In November 2005, the veteran testified during a video conference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is also associated with the claims file. At the hearing, the veteran submitted additional evidence accompanied by a waiver of initial RO consideration. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.800 (2005). Later in November 2005, the undersigned Acting Veterans Law Judge granted the veteran's motion for advancement of this appeal on the Board's docket. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2005). FINDING OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The evidence is in equipoise as to whether the veteran "served" in Vietnam during his active military service. 3. The veteran has been diagnosed with leiomyosarcoma of the stomach, which had its onset as a result of herbicide (Agent Orange) exposure. 4. In a February 19, 1993, rating decision the RO denied the veteran's claims for service connection for hypertension and for a heart condition. 5. The veteran was not provided notice of the denial of his claims for service connection for hypertension and for a heart condition; hence, the February 19, 1993, decision is not final with regard to those claims. 6. The earliest indication of record that the veteran's hypertension and his coronary artery disease status post myocardial infarction were related to service, was a December 6, 2004, medical opinion from a VA examiner. 7. Prior to September 28, 2004, there is a lack of competent medical evidence that relates the veteran's hypertension and/or coronary artery disease status post myocardial infarction to service. CONCLUSIONS OF LAW 1. Leiomyosarcoma of the stomach was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2005). 2. The criteria for an effective date earlier than September 28, 2004, for the grant of service connection for hypertension are not met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.104, 3.150(a), 3.151, 3.159, 3.400 (2005). 3. The criteria for an effective date earlier than September 28, 2004, for the grant of service connection for coronary artery disease status post myocardial infarction are not met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.104, 3.150(a), 3.151, 3.159, 3.400 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2005). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In view of the favorable disposition of the claim for service connection for residuals of leiomyosarcoma of the stomach, the Board finds that all notification and development action needed to fairly adjudicate that claim on appeal has been accomplished. With respect to those claims for effective dates earlier than September 28, 2004, for the grants of service connection for hypertension and for coronary artery disease status post myocardial infarction, the Board finds that all notification and development action needed to render a decision on the claims has also been accomplished. The Board initially notes that prior to the January 2005 rating decision, in which the RO granted service connection for hypertension and for coronary artery disease status post myocardial infarction, the RO issued the veteran a notice letter in November 2004, which satisfied the statutory and regulatory requirement that VA notify a claimant of the evidence necessary to substantiate his claim and what evidence, if any, would be obtained by the claimant and which evidence, if any, would be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the November 2004 letter, in particular, the RO notified the veteran that it would obtain such things as medical records, employment records, or records from other Federal agencies. The letter also identified what the evidence needed to show to substantiate the claims and requested that the veteran tell the RO about any additional information or evidence that needed to be obtained. The RO also requested that the veteran submit any pertinent evidence in his possession that would support his claims. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to this claim(s). As indicated above, the four content of notice requirements have been met. The Board acknowledges that the record includes no specific letter from the RO informing the veteran of the evidence necessary to substantiate his claims for earlier effective dates for the grants of service connection for hypertension and for coronary artery disease status post myocardial infarction, or that advises him of what evidence he is responsible for obtaining and what evidence VA will obtain in connection with those claims. However, the Board points out that, in this case, the veteran raised the issues of earlier effective dates for the grants of service connection for hypertension and for coronary artery disease status post myocardial infarction following the January 2005 rating decision. In such situations, VA's General Counsel has held that further notice of the VCAA is unnecessary. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The Board is bound in its decisions by all pertinent legal authority, to include the precedent opinions of the General Counsel of the Department of Veterans Affairs. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2005). In any event, the Board finds that the veteran has been notified of the reason for the denial of his claims for effective dates earlier than September 28, 2004, for the grants of service connection for hypertension and for coronary artery disease status post myocardial infarction; has been given notice of the laws and regulations governing the claims; and has been afforded an opportunity to present evidence and argument in connection with the claims. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the veteran. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. A. Service Connection for Leiomyosarcoma Under the applicable law and VA regulations, in order to establish service connection, the veteran must submit objective evidence that establishes that his current disability is the result of a disease or injury that either began in or was aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2005) are met. See 38 C.F.R. § 3.309(e) (2005). The term "herbicide agent" means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include chloracne or other acneform disease 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), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Soft-tissue sarcoma includes, in particular, leiomyosarcoma. In general, for service connection to be granted for one of the above noted diseases, it must be manifested to a degree of 10 percent or more at any time after service. Chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must be manifest to a degree of 10 percent within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 C.F.R. § 3.307(a)(6)(ii) (2005). A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed during such service to a herbicide agent unless there is affirmative evidence to the contrary. Id. The veteran has consistently reported, both through written statements and his hearing testimony, that while assigned to the 555th Tactical Air Command (TAC) Armament & Electronics (A&E) Squadron in Thailand, his duties included occasional assignment to an aircraft recovery team that traveled to jet aircraft crash sights to recover highly sensitive electronics equipment. The crash sights included locations in Laos and Cambodia, as well as Vietnam. The veteran reported that he could not remember the exact dates of his travel into Vietnam nor could he remember any of the names of the individuals that traveled with him. In addition, the veteran reported that his travels included stops at NKP and Kurat air bases along the Thailand/Vietnam border. He indicated that aircraft involved in the spraying herbicides in Southeast Asia flew out of NKP air base, and that the perimeter of the air base was defoliated using herbicides to prevent enemy forces from attacking the aircraft coming and going from the base. A review of the veteran's service personnel records reflects that he was assigned to the 8th A&E Maintenance Squadron at Ubon Royal Thai Air Force Base in Thailand from December 1965 to October 1966. His military occupational specialty (MOS) was noted as Automatic Flight Control Systems (AFCS) Repairman. The veteran's duties included performing flight line and field level maintenance on the ASA-32G AFCS system; trouble shooting, aligning, testing, calibrating AFCS components in the field shop; and performing maintenance on the F-4C automatic flight control system. In particular, an October 1967 Performance Report (AF Form 910) for the reporting period from October 1966 to October 1967, reflects, in particular, that the veteran had reduced in-shop repair time for components "removed from aircraft" to a minimum. In support of his claim that his duties did in fact take him to Vietnam, the veteran has submitted a number of e-mails, some of which were in response to postings on an unofficial Air Force unit website. In particular, one e-mail message from a former service member recounted that a good friend of his had served at Ubon and that the friend and other specialists had in fact flown from Ubon to Vietnam to salvage a badly damaged F-4C aircraft. The Board is charged with the duty to assess the credibility and weight given to evidence. Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When, after consideration of all evidence and material of record there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b) (West 2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2005). In this case, there is no service documentation that the veteran was ever in Laos, Cambodia, or Vietnam. However, the Board has considered the veteran's testimony in light of the aforementioned facts (the veteran's MOS, his assigned duties while serving in Thailand, his consistent recounting of the circumstances surrounding his temporary trips into Vietnam, and the additional lay statements via e-mail), and finds the testimony credible. As such, the evidence is in relative equipoise as to whether the veteran did in fact land in Vietnam to help recover electronics equipment from crashed or damaged jet aircraft as he has described. Based on the veteran's credible testimony, and granting him the benefit of the doubt, the evidence establishes that the veteran did serve in Vietnam between December 1965 and October 1966. A review of the medical evidence of record reflects no in- service findings or treatment for leiomyosarcoma, and the first documented diagnosis is noted many years following service. Thus, service connection for leiomyosarcoma of the stomach is not warranted on a "direct basis" to service. However, as noted above, a veteran who was in Vietnam during this time period is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service connection for various listed diseases, to include leiomyosarcoma, will be presumed (absent rebuttable evidence to the contrary) if such a disease manifests to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.309(e). Here, the medical evidence does reflect a diagnosis and treatment for leiomyosarcoma of the stomach, and the disease has been manifest to a compensable degree. See 38 C.F.R. § 4.114, Diagnostic Code 7343 (2005). Thus, a grant of service connection is warranted for leiomyosarcoma of the stomach (residuals thereof) on a presumptive basis due to herbicide exposure. B. Earlier Effective Dates As indicated above, in the February 19, 1993, rating decision at issue, the RO denied the veteran's claims for service connection for hypertension and for a heart condition. With respect to notification to the veteran of the rating decision and denial of his claims, a May 1993 letter reflects only notice of the denial of the veteran's claim for nonservice- connected pension benefits. Furthermore, there is no indication that the veteran received a copy of the February 19, 1993, rating decision. As such, the Board finds that the veteran has not been given proper notice of the denial of his claims for hypertension and for a heart condition. Hence, the February 19, 1993, decision as to those claims is not final. See 38 U.S.C.A. § 5104 (West 2002); 38 C.F.R. §§ 3.104(a) (2005). The Board acknowledges that arguments made by the veteran's representative indicate that the veteran seeks an earlier effective date for the grants of service connection for hypertension and for coronary artery disease status post myocardial infarction, on the basis of error in the RO's denial of his claims in February 19, 1993. Thus, the representative has appeared to raise a claim for clear and unmistakable error (CUE) in the February 19, 1993, rating decision. However, a claim of CUE may only be raised in a prior final rating decision. See 38 C.F.R. § 3.105(a) (2005). Here, as noted above, the February 19, 1993, rating decision is not final. Otherwise, under the applicable criteria, the effective date of an original award of compensation is the day after the veteran's discharge from service, if a claim is received within one year after separation from active duty; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Furthermore, the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of date of the receipt of the informal claim. 38 C.F.R. § 3.155. The evidence of record reflects that the veteran was separated from active service in January 1971, and that he filed his original application for disability benefits, to include claims for service connection for hypertension and a heart condition, in October 1992. In the February 19, 1993, rating decision, the RO denied the veteran's claims. The RO's decision reflected consideration of findings reported in the veteran's service medical records (SMRs), a report of a November 1992 VA examination, as well as treatment records from Mission Hill Memorial Hospital and HCA Presbyterian Hospital. In particular, the SMRs reflect that during a separation medical examination, the veteran was believed to be mildly hypertensive. He was referred for further testing, and a subsequent January 1971 Internal Medicine consultation report notes an impression of "no hypertension." The veteran was found qualified for separation from service. The report of a November 1992 VA examination reflects the veteran's reported history of high blood pressure in service but no treatment for hypertension until 1978. Furthermore, the veteran reported having had a syncope episode in 1983 at which time he was treated for a "heart attack." However, the examiner noted that the veteran had been hospitalized in May 1992 for acute myocardial infarction. In the report, the examiner did not offer an opinion as to whether the veteran's then diagnosed hypertension and heart condition were related to service. In addition, treatment records from Mission Hill Memorial Hospital and HCA Presbyterian Hospital reflect the veteran's treatment for coronary artery disease in May 1992. During a September 28, 2004, hearing before RO personnel, the veteran and his representative raised arguments concerning the veteran's hypertension and heart condition. A report of a December 2004 VA examination reflects the examiner's report that the veteran did not start taking medication for hypertension until 1974 and had been on medications off and on since. The veteran reported that he was not on any blood pressure medications and had not been on any medicines since December of 2003. Following clinical evaluation and a review of the veteran's records, the examiner opined that it was as likely as not that the veteran's hypertension and heart disease were both related to service. In January 2005, the RO received outpatient treatment records, dated from November 2003 to January 2005, from the VA Medical Center in Oklahoma City, Oklahoma. These records reflected continued treatment for a number of disabilities, to include hypertension and coronary artery disease. In this case, the veteran has contended that an effective date earlier than September 28, 2004, for the grants of service connection for hypertension and for coronary artery disease status post myocardial infarction is warranted. As noted above, the veteran's original compensation claim for service connection for hypertension and for a heart condition was not received until October 21, 1992. Thus, the claim was not received within one year after separation from the veteran's active service. Thus, an effective date to January 16, 1971, the day after the veteran's discharge from service, is not warranted. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Otherwise, the governing law and regulations dictate that the effective date of the veteran's awards for compensation for hypertension and for coronary artery disease status post myocardial infarction shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. Here, following the veteran's original claim in October 1992, evidence relating the veteran's hypertension and coronary artery disease status post myocardial infarction to service was not received until December 6, 2004, based on the opinion of the VA examiner. Moreover, the veteran has not alleged that, prior to September 28, 2004, there is any medical evidence or opinion that would substantiate his claims and warrant a grant for service connection for hypertension and for coronary artery disease status post myocardial infarction. Applying the applicable legal authority to the case at hand, the Board finds no legal basis for assignment of an effective date earlier than September 28, 2004, for the grants of service connection for hypertension and for coronary artery disease status post myocardial infarction. The pertinent legal authority governing assignment of effective dates is clear and specific, and the Board is bound by such legal authority. Here, the SMRs document that while the veteran did evidence high blood pressure readings during a separation medical examination, a medical doctor at that time diagnosed the veteran as not having hypertension. Likewise, during the November 1992 VA examination, while the veteran was diagnosed with hypertension and coronary artery disease, the examiner at that time did not relate either disability to service. It is not until December 2004, on VA examination, that a medical doctor relates the veteran's hypertension and heart disease to service. As such, given that the date entitlement arose, December 6, 2004, is later than the date of the veteran's original claim, October 21, 1992, an effective date prior to September 28, 2004, is not warranted. See 38 C.F.R. § 3.400(b)(2)(i). Under these circumstances, the claims for effective dates earlier than September 28, 2004, for the grants of service connection of hypertension and for coronary artery disease status post myocardial infarction, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence pertinent to the claims is not, at least, in relative equipoise that doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for leiomyosarcoma of the stomach is granted. An effective date prior to September 28, 2004, for the grant of service connection for hypertension, is denied. An effective date prior to September 28, 2004, for the grant of service connection for coronary artery disease status post myocardial infarction, is denied. ____________________________________________ W. R. STEYN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs