Citation Nr: 0814501 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-26 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for prostate cancer claimed as due to Agent Orange exposure. 2. Entitlement to service connection for diabetes mellitus claimed as due to Agent Orange exposure and to include as secondary to service-connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from July 1961 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The veteran testified before the undersigned Veterans Law Judge in November 2007. The Board notes that the issue on appeal was originally entitlement to service connection for diabetes mellitus; however, at the veteran's November 2007 hearing he asserted that the issue should be entitlement to service connection for diabetes mellitus secondary to service-connected hypertension. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished. 2. The veteran's service personnel records show that the veteran did not serve in the Republic of Vietnam. 3. The veteran is not shown to have manifested complaints or findings referable to prostate cancer in service or for many years thereafter. 4. The currently demonstrated prostate cancer cannot be presumptively linked to Agent Orange exposure or found to be causally related to another event or incident of the veteran's period of active service. 5. The veteran is not shown to have manifested complaints or findings referable to diabetes mellitus in service or for many years thereafter. 6. The currently demonstrated diabetes mellitus cannot be presumptively linked to Agent Orange exposure, found to be causally related to another event or incident of the veteran's period of active service, or secondary to his service-connected hypertension. CONCLUSIONS OF LAW 1. The veteran's prostate cancer is not due to disease or injury that was incurred in or aggravated by active service or that may be presumed to have been incurred due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 1131, 1113, 1116, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The veteran's diabetes mellitus is not due to disease or injury that was incurred in or aggravated by active service or that may be presumed to have been incurred due to Agent Orange exposure, nor is it secondary to his service-connected hypertension. 38 U.S.C.A. §§ 1110, 1113, 1116, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty 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) (2006). 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). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. In April 2003, prior to the rating decision on appeal, the RO sent the veteran a letter informing him that to establish entitlement to service-connected compensation benefits the evidence must show credible supporting evidence of a disease or injury that began in or was made worse during service, or that there was an event in service which caused injury or disease; a current physical or mental disability; and a relationship between the current disability and an injury, disease or event in service. The veteran was afforded time to respond before the RO issued the August 2003 rating decision on appeal. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claims and has been afforded ample opportunity to submit such information and evidence. The April 2003 letter also satisfies the statutory and regulatory requirement that VA notify a claimant, what evidence, if any, will be obtained by the claimant and what if any evidence will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The April 2003 letter advised the veteran that VA must make reasonable efforts to help the veteran to get evidence necessary to support his claims, including such things as medical records, employment records, or records from other Federal agencies. The letter advised the veteran that it was his responsibility to provide the RO with enough information about the records to enable the RO to request them from the person or agency having them, and advised the veteran that it was his responsibility to make sure the records were received by VA. In the decision of 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 the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support his claims for service connection and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that any arguable lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and he was afforded an opportunity to submit such information and/or evidence. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claims is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the first Dingess element (veteran status) is not at issue, and as noted above the April 2003 letter advised the veteran of the second and third Dingess elements (existence of a disability and connection between the veteran's service and that disability). In regard to fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability), it does not appear that the RO advised the veteran of these elements, but the Board finds that the omission is harmless. The Board's decision below denies service connection for the claimed disabilities, so no degree of disability or effective date will be assigned. There is accordingly no possibility of prejudice to the veteran under the notice requirements of Dingess. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claims on appeal. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). The Board notes that no medical examination has been conducted or medical opinion obtained with respect to the veteran's claim of prostate cancer; however, there is no competent medical evidence between the veteran's prostate cancer and an incident of or finding recorded during active service, to include as secondary to in-service herbicide exposure, and because the veteran lacks qualifying active service in Vietnam, the Board finds that an examination to determine the etiology of the veteran's prostate cancer is not required. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran was afforded a VA examination in May 2003. The veteran was afforded a hearing before the Board in November 2007. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims for service connection. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). There is a rebuttable presumption of exposure to herbicides if claimant served in Vietnam, even if there is no record of treatment in service. 38 U.S.C.A. §§ 1113, 1116; 38 C.F.R. § 3.307. However, presumption exists only for diseases listed in 38 C.F.R. § 3.309(e). The Board notes that "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation to Vietnam. 38 C.F.R. § 3.313. The VA General Counsel has determined that this regulatory definition, which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the Republic. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam; service on a deep water vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute "service in the Republic of Vietnam" for the purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961 and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27- 97. Similarly, in another precedent opinion, the VA General Counsel concluded that the term "service in Vietnam" does not include service of a Vietnam-era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace. See VAOPGCPREC 7-93. Again, a showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam. Notwithstanding the presumption, the veteran still can establish service connection for a disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). A. Service Connection for Prostate Cancer The veteran asserts that his prostate cancer is related to his exposure of Agent Orange during his military service in the Republic of Vietnam. However, the Board finds that after careful review of the veteran's service personnel records that the veteran never served in the Republic of Vietnam. Therefore, the veteran is not presumed to have had such exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). That fact does not preclude the veteran from showing a direct link between the veteran's prostate disorder and service; however, no such link has been demonstrated in this case. See, e.g., Combee v. Brown. 34 F.3d 1039, 1042 (Fed. Cir. 1994). The veteran testified that during service he was treated for sexually transmitted diseases and that those symptoms were the same as the symptoms of his prostate cancer. He believed that his prostate cancer was a result of his sexually transmitted diseases. The Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology, including pain. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). After careful review of the veteran's claims file and medical evidence the Board finds that the veteran did not serve in the Republic of Vietnam and therefore, does not have a presumption of exposure. In addition, there is no medical evidence showing that the veteran's in-service sexually transmitted diseases are related to his current prostate cancer. Given these facts, the Board finds that service connection for prostate cancer must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). B. Service Connection for Diabetes Mellitus The veteran asserts that his diabetes mellitus is related to his exposure of Agent Orange during his military service in the Republic of Vietnam. However, the Board finds that after careful review of the veteran's service personnel records that the veteran never served in the Republic of Vietnam. Therefore, the veteran is not presumed to have had such exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The Board notes that service connection also may be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice- connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). At the veteran's May 2003 VA examination the examiner stated that his diabetes mellitus, Type II, required insulin and was under fair control. He opined that the veteran's hypertension and diabetes were not causally related; however, both conditions were risk factors for coronary artery disease. Generally, when a veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, supra. After careful review of the veteran's claims file the Board finds that there is no medical evidence of nexus between the veteran's diabetes mellitus and his service-connected hypertension. Given these facts, the Board finds that service connection for diabetes mellitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for prostate cancer as due to Agent Orange exposure is denied. Service connection for a diabetes mellitus as due to Agent Orange exposure or as secondary to service-connected hypertension is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs