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