Citation Nr: 1036331 Decision Date: 09/27/10 Archive Date: 09/30/10 DOCKET NO. 07-00 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from October 1970 to October 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2006-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that in pertinent part denied service connection for prostate cancer. This appeal also arises from an August 2006-issued rating decision that in pertinent part denied service connection for hepatitis C. The June 2006 rating decision also denied an increased rating for bilateral hearing loss disability. Although the Veteran submitted a timely notice of disagreement with this issue, he excluded the hearing loss claim from his VA Form 9 or 1-9, Appeal to the Board of Veterans' Appeals. Thus, the Board lacks jurisdiction to address the hearing loss claim. Since issuance of the most recent (September 2009) supplemental statement of the case, new evidence has been received. Although the RO has not had opportunity to review this evidence, the Veteran, through his representative, has waived this right. Thus, a remand will not be necessary for this procedural safeguard. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Service connection for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's military personnel file reflects that he served in the Marine Corps as a rifleman assigned to the USS New Orleans, which operated in the waters of the Republic of Vietnam from July 15-16, August 13-14, and September 5-6, 1971; he earned the Vietnam Service Medal for such service. 2. The Veteran alleges that he twice set foot in the Republic of Vietnam; once to guard the payroll and once more during a training exercise aboard a landing craft. 3. Official documents do not reflect that the Veteran was present in the Republic of Vietnam. CONCLUSION OF LAW Prostate cancer may not be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.13 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA must 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Adequate notice was provided in March 2006 and in January 2007. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the notices provided in March 2006 and January 2007 address the rating criteria and effective date provisions that are pertinent to the claim. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining 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. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA records and official military records. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for Prostate Cancer Claimed Due to Agent Orange Service connection may be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "Direct" service connection may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. "Direct" service connection may be granted for any disease not diagnosed until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Each disabling condition shown by service treatment reports, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, 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 containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). VA regulations contain further provisions for a presumption of service connection for those exposed to herbicides duing active service. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2009). The specified diseases for which presumptive service connection is available include prostate cancer. 38 C.F.R. § 3.309(e) (2009). An April 2005 VA out-patient treatment report documents that prostate cancer was confirmed by biopsy. The claim raises the question of whether the Veteran was exposed to herbicide agents during active service. As set forth below, VA regulations presume such exposure if the Veteran served in Vietnam during the requisite time frame. The Veteran maintains that he was present in the Republic of Vietnam during the requisite time frame; however, his presence there is not documented. The Veteran's DD-214 reflects that he earned the Vietnam Service Medal and that he had over 9 months of foreign or sea duty. As previously provided in VA Adjudication Procedure Manual M21-1, Part III, 4.08(k)(1)-(2) (Nov. 1991), "In the absence of contradictory evidence, 'service in Vietnam' will be conceded if the records shows [sic] that the Veteran received the Vietnam Service Medal." While action was taken by VA in February 2002 to rescind and amend this version of the M21-1 (as amended in July 1995-M21-1, Part III, 4.24(g)(1)-(2)), this action was set aside because VA did not comply with the notice and comment requirements of the Administrative Procedures Act (APA) regarding the promulgation and rescission of substantive rules. See M21-1, Part III, 4.24(e)(1)-(2). Consequently, the Court found that the M21-1 provision in effect prior to the February 2002 rescission were binding on VA. Haas v Nicholson, 20 Vet. App. 257, 275-78 (2006). In reviewing this Haas decision, the Federal Circuit held that the phrase "served in the Republic of Vietnam" in 38 U.S.C.A. § 1116 is ambiguous and further held that the Secretary's requirement that a Veteran have been present within the land borders of Vietnam at some point in the course of his or her duty constitutes a permissible interpretation of the statute and its implementing regulation. Haas v. Peake, 525 F.3d at 1183, 1187- 95 (Fed. Cir. 2009). The Federal Circuit concluded that the pertinent pre-2002 version of the M 21-1 was an interpretative statement, not a substantive rule that could be amended only by APA notice-and-comment rulemaking. Id. at 1196. The Federal Circuit, therefore, reversed this Court's judgment. Thus, an award of the Vietnam Service Medal is not conclusive evidence of having been present in Vietnam. The Veteran's official military personnel file reflects that he served in the Marine Corps as a rifleman. He was assigned to the FMF (Fleet Marine Forces) from May 8, 1971, to May 31, 1972, and his assigned station was the USS New Orleans (LPH-11). Research by the Board reflects that the United States Fleet Marine Forces (FMF) are combined general and special purpose forces within the United States Department of the Navy that are designed in engaging offensive amphibious or expeditionary warfare and defensive maritime employment. From May 8, 1971, to May 31, 1972, the Veteran was assigned to Company E, 2nd Bn (Battalion), 9th Marine Regiment, 3rd Marine Division. The unit's zip code was FPO SF 96602. Research by the Board reflects that this zip code was assigned to the Armed Forces-Pacific and thus does not conclusively establish that the Veteran's assigned unit was in the Republic of Vietnam. In June 2009, a service department research facility known as USASCRUR reported that the USS New Orleans embarked on a Western Pacific deployment on May 1, 1971, and conducted amphibious training and exercises in the WESTPAC and did not operate in the Vietnam theatre of combat operations. USASCRUR specifically reported that the deck logs do not document that the USS New Orleans operated in Vietnam territorial waters during the period July-September 1971. The Board finds this report inherently incredible, as the Veteran's receipt of the Vietnam Service Medal controverts such information, and, in May 2010, the National Personnel Records Center confirmed that the USS New Orleans "was in the official waters of the Republic of Vietnam" from July 15- 16, 1971, August 13-14, 1971, and September 5-6, 1971. 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. 38 C.F.R. § 3.307(a)(6)(iii) (2003); see also 38 C.F.R. § 3.13. In March 2006, the Veteran reported that he was assigned to the USS New Orleans from roughly February to August 1971. He reported that he was assigned various duties aboard the vessel, including painting and cleaning helicopters used for spraying Agent Orange. He also reported that he twice set foot in the Republic of Vietnam, once to retrieve mail, and once more during a training exercise aboard a landing craft. He felt that this training exercise might be reflected in the ship's logs. In his January 2007 substantive appeal, the Veteran reported that he twice entered Vietnam; once for training maneuvers and once more as a guard for the ship's payroll. He asserted that his ship "handled and loaded planes for Agent Orange." He stated, "...we were covered with the stuff." The Veteran's claimed presence in Vietnam has not been documented and his claim appears implausible. He has reported that he participated in a training maneuver that involved reaching the shore of Vietnam. Official documents reflect that his ship deployed to the Western Pacific, undertook training maneuvers there, and that it entered the "official waters of the Republic of Vietnam." He has reported that he went to Vietnam another time to serve as a guard for the payroll. Consistent with this assertion are records that reflect that he was a Marine Corps rifleman assigned to ship duty. Although the Veteran appears credible, his assertions are not supported by any official document. He is competent to report his presence in Vietnam, because no special training is necessary to competently claim that one has visited a certain geographic location. 38 C.F.R. § 3.159. Thus, although credible and competent lay evidence supporting the claim has been submitted, his claimed presence in Vietnam remains undocumented. See Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (lay evidence alone may be sufficient to place the evidence in equipoise and thus, under 38 U.S.C. § 5107(b), establish entitlement to benefits). After considering all the evidence of record, including the testimony, the Board finds that the preponderance of the evidence is against the claim. The benefit of the doubt doctrine is therefore not applicable. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for prostate cancer will therefore be denied. ORDER Service connection for prostate cancer is denied. REMAND Although the VA and private medical reports adequately document hepatitis C, VA has not attempted to obtain a medical opinion addressing the etiology and/or approximate date of onset of such. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court discussed the steps to be taken in determining whether a medical examination or opinion is necessary prior to final adjudication of a claim. In disability compensation claims, VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i). The Court observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran asserts that numerous vaccinations and inoculations during active service were risk-factors for hepatitis C, a disease which was not yet recognized by medical science when he separated from active military service. Therefore, VA should attempt to obtain an opinion to determine the etiology of hepatitis C or other hepatic disorder. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should schedule the Veteran for an appropriate examination. The AMC should then forward the claims file to an appropriate specialist for review. The physician is asked to review the claims file, elicit a history of hepatitis C risk factors and relevant symptoms from the Veteran, examine him, and then address the following: I. Comment on the clinical significance of any symptoms and findings as they relate to any current hepatitis diagnosis. II. Address whether it is at least as likely as not (50 percent or greater probability) that any hepatic disorder arose during or is otherwise related to active military service. The physician should offer a rationale for any conclusion in a legible report. If any question cannot be answered, the physician should state the reason. 2. Following the above, the AMC should review all the relevant evidence and re- adjudicate the claim. If the desired benefits are not granted, an appropriate SSOC should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for examination without good cause may have adverse consequences on the claim. 38 C.F.R. § 3.655(b) (2009). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs