Citation Nr: 0814089 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 03-21 690A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for prostate cancer as a result of exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION The veteran had active service from October 1965 to January 1975. This matter returns to the Board of Veterans' Appeals (Board) following a Remand issued in January 2005. This matter was originally on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The record shows that the veteran was afforded a personal hearing with respect to the issue on appeal before a Veterans Law Judge in October 2004. That judge is no longer employed by the Board. The veteran was apprised of this fact in August 2007 correspondence from the Board and provided the opportunity to exercise his right to testify at a new hearing before another Veterans Law Judge. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707 (2007). In a response dated in August 2007, the veteran indicated that he wished to testify at a personal hearing before a Veterans Law Judge in Washington, DC. In January 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcripts of both hearings are associated with the claims file and have been reviewed. In a letter received by the RO in March 2007, the veteran asked that his appeal be cancelled and requested that his appeal be sent back to the Nashville RO as soon as possible; the letter was not received by the Board until February 2008. The Board also observes that the veteran asked that the RO stop the appeal with respect to his prostate cancer claim and return the record so that he can submit additional evidence with respect to other claims in June 2007 correspondence. Thus, the Board notes that the veteran clearly demonstrated an intent to withdraw his appeal in said correspondence. However, the veteran presented testimony with respect to the issue on appeal, indicated that he had additional evidence to submit in support of the appeal, and expressed a desire to continue with the appeal at the January 2008 Board hearing. Furthermore, the veteran's claim for service connection of prostate cancer was the only issue that had been procedurally prepared and certified for appellate review when the veteran presented for the January 2008 Board hearing. In light of the foregoing and in the interest of fairness to the veteran in this particular case, the Board finds that such circumstances indicate the veteran wished to continue his appeal. Thus, the Board will proceed with appellate review. At the January 2008 Board hearing, the veteran also expressed some confusion regarding the status of four issues: (1) entitlement to an effective date prior to October 14, 1997 for the award of service connection for hiatal hernia with gastroesophageal reflux disease; (2) entitlement to an effective date prior to June 5, 1997 for the award of a total disability rating based on individual unemployability; (3) whether new and material evidence has been submitted to reopen a claim for entitlement to an effective date prior to May 12, 1992 for the award of service connection for a back condition evaluated at 40 percent, and (4) whether new and material evidence has been submitted to reopen a claim for an effective date earlier than May 12, 1992 for the award of service connection for foot fungus, tinea pedis/cruris, as he believed that those issues had also been perfected and were before the Board. In regard to the first and second issues, the record reflects that the RO granted service connection for the veteran's hiatal hernia with gastroesophageal reflux disease and a total disability rating in a February 2003 rating decision. The veteran subsequently filed a timely notice of disagreement with respect to the effective dates assigned in correspondence received in August 2003, following a request from the RO to clarify earlier correspondence submitted by the veteran wherein it was unclear what issues the veteran wanted to appeal. However, the veteran submitted correspondence in October 2003 wherein he asked that all claims pending at the RO be dropped and requested that his appeal be forwarded to the Board. Thereafter, the RO sent correspondence to the veteran in October 2003 noting that it was no longer processing his claim for benefits per his request. An appeal withdrawal is effective when received by the agency of original jurisdiction when prior to transfer to the Board and withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement. 38 C.F.R. § 20.204 (b) (2007). Thus, the veteran's appeal with respect to the first and second issues was withdrawn on October 21, 2003, the date his letter was received by the RO. In regard to the third and fourth issues, the Board notes that the veteran also withdrew his appeal with respect to those issues by virtue of the aforementioned October 2003 correspondence. However, it is also noted that the issues of entitlement to an earlier effective date for a 40 percent evaluation for service-connected low back disability, prior to May 12, 1992, and entitlement to an earlier effective date for a 30 percent evaluation for tinea pedis and cruris with surgical removal of toenails, prior to May 12, 1992, was adjudicated by the Board in July 2001. The veteran did not file a timely notice of appeal with the United States Court of Appeals for Veterans Claims (Court) and the decision became final. Failure to timely appeal an original rating providing an effective date of an award renders the decision final as VA statutes and regulations do not provide for a "freestanding claim" for an earlier effective date to be raised at any time in the future; an earlier effective date can only be established by a request for a revision of the final decision based on clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296 (2006). As it is unclear from the record whether the veteran intends to file a CUE claim with respect to the July 2001 Board decision, the Board refers this undeveloped matter to the RO for clarification and appropriate action, if in order. While the Board recognizes that the veteran suggested at various times during the course of this appeal that he wanted the Board to adjudicate certain claims in the first instance without proper procedural development at the RO level, the Board notes that it does not have jurisdiction over matters that are not properly developed by the RO. 38 C.F.R. §§ 20.101, 20.200 (2007). FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent medical evidence of record does not show that the veteran currently suffers from prostate cancer. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); 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 his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the veteran of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In correspondence dated in September 2002 and March 2005, the RO advised the veteran of what the evidence must show to establish entitlement to service connected compensation benefits, described the type of information and evidence that would support his claim, and asked the veteran to send the requested information or evidence as soon as possible. The RO also advised the veteran that VA may be able to pay him from the date his claim was received if the requested information and evidence was received within one year from the date of the letter. The RO further advised the veteran of what evidence it would obtain or make reasonable efforts to obtain on his behalf in support of his claim. While the March 2005 VCAA notice did not precede the initial denial of the veteran's claim, any timing defect has been remedied as the claim was readjudicated in April 2007. Furthermore, the lack of notice with respect to the elements of degree of disability and effective date in the aforementioned VCAA notice letters is harmless error as the claim is being denied and, consequently, no disability rating or effective date will be assigned. Moreover, the Board notes that the RO provided the veteran with a copy of the January 2003 rating decision, the July 2003 Statement of the Case (SOC), and Supplemental Statements of the Case dated in March 2004 and April 2007, which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the veteran with VA medical examinations and opinions with respect to his claim and obtained VA and private treatment records that the veteran identified as pertinent to his claim, to the extent possible. Although the veteran has indicated that he did not have an examination on August 2006, the August 2006 VA medical examiner noted that the veteran reported certain facts with respect to the history of his claimed illness as well as his current symptomatology and the examiner wrote that the veteran was to stop his "asa and nsaids [one] week prior" to his prostate biopsy and flexible cystoscopy, which was scheduled in September. The record reflects that the veteran underwent the biopsy and cystoscopy subsequent to the examination and a supplemental opinion was rendered in February 2007 based on the results. Thus, a review of the record to include the August 2006 examination report does not support the veteran's assertion. Furthermore, the veteran indicated that he had additional evidence to submit in support of his claim at the January 2008 Board hearing and would submit the information within 30 days; however, the Board has not received any additional evidence. The veteran has been provided with ample opportunity to submit information and evidence in support of his claim and the veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to the claim. The Board further finds that the RO complied with its January 2005 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board will proceed with appellate review. Analysis The veteran contends that he currently suffers from prostate cancer as a result of herbicide exposure during his Vietnam service. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that the veteran currently suffers from a disease associated with exposure to certain herbicide agents enumerated under § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2007). In the present case, the veteran's service records show that he has qualifying service in the Republic of Vietnam and his exposure to herbicide agents during service is, therefore, presumed. The Board additionally notes that the veteran's claimed disorder, prostate cancer, is enumerated as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309 (2007). Nonetheless, the medical evidence does not show that the veteran currently suffers from prostate cancer. A VA medical examiner (Dr. V.A.) wrote in a February 2007 opinion that the veteran's February 2007 biopsy results showed no evidence of malignancy. Dr. V.A. also wrote that the veteran's flexible cystoscopy showed a large prostate gland with no lesions noted on the bladder mucosa and the bladder washing returned as negative for any malignancies. He further added that all of the veteran's work up was negative. Thus, Dr. V.A. found that the veteran does not currently suffer from prostate cancer based on his review of the veteran's claims folder to include February 2007 biopsy results and his opinion is the only competent medical opinion of record regarding the question of whether the veteran currently suffers from prostate cancer. The Board recognizes that a May 2002 preliminary report submitted by the veteran lists prostate cancer as the clinical information and a private treatment record dated in December 2003 notes a diagnosis of prostate cancer. However, no objective clinical findings of prostate cancer are apparent on the May 2002 report and the December 2003 diagnosis of prostate cancer appears to be solely based on the veteran's report of diagnosis as the veteran was a new patient at that time and subsequent treatment records from that facility note a diagnosis of prostate hypertrophy. In addition, the medical evidence of record shows that the veteran sought treatment for prostate-related problems and medical examiners evaluated the veteran for prostate cancer at various times; however, no definitive clinical diagnosis of prostate cancer is shown. Although the Board observes that the veteran has repeatedly asserted that he currently suffers from prostate cancer as a result of in-service exposure to herbicide agents, the veteran is not shown to have the requisite medical expertise to diagnose his claimed condition and his opinion is afforded no probative value. Grottveit v. Brown, 5 Vet. App. 91 (1993). As the competent medical evidence of record does not establish a current diagnosis of prostate cancer, the Board finds that the preponderance of the evidence weighs against the veteran's claim and entitlement to service connection for prostate cancer is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for prostate cancer as a result of exposure to herbicide agents is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs