Citation Nr: 1024253 Decision Date: 06/29/10 Archive Date: 07/08/10 DOCKET NO. 06-21 796A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for prostate cancer, to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active military service from October 1955 to July 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran did not have service, or other duty or visitation, in the Republic of Vietnam. 2. There is insufficient evidence to show that the Veteran had exposure to Agent Orange or other herbicide agents during his military service. 3. There is no evidence of prostate cancer or a prostate disorder in service or within one year after the Veteran's separation from service, and no competent evidence of a nexus between the Veteran's current prostate cancer and his period of active service, to include his alleged exposure to herbicides. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by service and may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a), 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in February 2005 and April 2008. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also addressed the specific requirements for herbicide-related claims. Furthermore, the April 2008 letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice. With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini II, 18 Vet. App. at 120 (2004). In the present case, the Board sees the RO did not provide the Veteran with all VCAA notice prior to the May 2005 adverse determination on appeal. But in Pelegrini II, the U.S. Court of Appeals for Veterans Claims (Court) also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Id. Rather, VA need only ensure the Veteran receives (or since has received) content- complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the timing error was cured. After providing the additional, complete VCAA notice in April 2008, the RO again went back and readjudicated the claim in the most recent October 2009 SSOC. So each time after providing the required notice, the RO reconsidered the claim - including to address any additional evidence received in response to the notice. So the timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376. Stated another way, VA's issuance of a SSOC in October 2009 following the VCAA notice letters cured the timing error. As such, the Board concludes prejudicial error in the timing or content of VCAA notice has not been established as any error was not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). With respect to the duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records (SPRs), VA treatment records, and responses from the National Personnel Records Center (NPRC) and Joint Services Records Research Center (JSRRC), formally known as the U.S. Armed Services Center for Unit Records Research (USASCURR). The Veteran has submitted personal statements, Internet records, additional SPRs, copies of another rating decision and Board decision for another Veteran, and naval ship histories. There is no indication in the claims folder that he identified and authorized VA to obtain any private records. The RO's attempt to secure Social Security Administration (SSA) records yielded a negative reply in September 2009. The Board notes that no medical examination has been conducted or medical opinion obtained with respect to the Veteran's prostate cancer claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). However, the standards of McLendon are not met in this case. The evidence does not reflect treatment for a prostate injury or condition in service. Although prostate cancer is a presumptive herbicide disease, the Veteran did not serve in Vietnam for purposes of applying the presumption. Further, there is insufficient evidence that prostate cancer is linked to service. Nor is there any lay or medical evidence of continuity of symptomatology of a prostate disorder since service. As service and post-service treatment records provide no basis to grant the claim, and in fact provide evidence against the claim, the Board finds no basis for a VA examination or medical opinion to be obtained. Thus, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service), 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some chronic diseases, such as malignant tumors, are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In addition, as to presumptive service connection, certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Prostate cancer is one of the diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 3.309(e). To warrant service connection, this particular cancer may manifest at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). In fact, the Federal Circuit recently issued its decision in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), where it confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A Veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange / herbicide exposure. Haas, 525 F.3d at 1193- 1194. See also VAOPGCPREC 7-93 (holding that 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); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196. In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. §§ 1154(a) (West 2002). With regard to lay evidence, the Federal Circuit Court recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. See also Savage, 10 Vet. App. at 498. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that his prostate cancer is due to exposure to Agent Orange or other toxic herbicide agent during his military service, and in particular while stationed aboard the USS Intrepid in the coastal waters off Vietnam in 1968. He asserts that herbicides were carried onto his aircraft carrier by naval aircraft contaminated with Agent Orange from the Vietnam landmass and airspace. He also contends that he was exposed to herbicides on land in Vinh, Vietnam near the DMZ. He adds that at one point he thinks he disembarked from the USS Intrepid onto the Vietnamese landmass in Saigon, Vietnam. He has stated that he had three "tours" in Vietnam. He also believes he was exposed to herbicides while stationed in Guam and Okinawa, Japan. See February 2005 claim; August 2005 Notice of Disagreement (NOD); July 2006 Substantive Appeal; personal statements dated in October 2005, April 2006, and March 2008. As mentioned, the first and perhaps most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Concerning this, VA treatment records dated in January and May of 2005 reveal a current diagnosis for prostate cancer and residuals thereof. Therefore, the evidence clearly shows prostate cancer with residuals. Consequently, the determinative issue is whether this disorder is somehow attributable to the Veteran's military service, including his alleged exposure to Agent Orange or other herbicide in Vietnam and other locations. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In this vein, the Board acknowledges that the Veteran's prostate cancer is a disease associated with herbicide exposure for purposes of the presumption. 38 C.F.R. § 3.309(e). Furthermore, VA treatment records dated from 2005 to 2009 confirm that his prostate cancer was manifest to a degree of 10 percent or more after service. 38 C.F.R. § 3.307(a)(6)(ii). The remaining question is whether there is sufficient evidence to demonstrate that the Veteran had "service in Vietnam," such that exposure to herbicides may be presumed, or whether there is sufficient evidence the Veteran was exposed to herbicides in other locations. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Upon review of the evidence, the Board finds that the Veteran does not have "service in Vietnam," such that exposure to herbicides may not be presumed. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). The Veteran's SPRs list his military occupational specialties (MOS) in aviation ordinance and police work. Although the Veteran's DD Form 214 verifies he was awarded the VSM, Vietnam Armed Forces Medal, and Vietnam Gallantry Cross, these awards and citations do not prove actual "service in the Republic of Vietnam" for purposes of the regulations. Haas, 525 F.3d at 1193-1194. His SPRs and JSRRC (in August 2005) indicate that he served aboard the USS Intrepid in Attack Squadron 66 from roughly around June 1968 to November 1968 in the official waters of Vietnam. But the JSRRC in August 2005 specifically found that there is no indication that the USS Intrepid was ever in port in Vietnam. His SPRs are silent as to whether the Veteran ever set foot on Vietnamese soil. A March 2005 response from the NPRC found they were unable to determine whether the Veteran had in-country service in Vietnam. The NPRC did acknowledge, however, that his unit "could have" been assigned to a ship or shore. However, the JSRRC did not corroborate this. In addition, for Department of Defense purposes, his unit was credited with Vietnam service from July to November of 1968, but this is not equivalent to proof of the Veteran physically being in-country. That is, there is insufficient evidence or allegation that the Veteran had duty or visitation in Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). See also VAOPGCPREC 27-97 (holding that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam). Further, there is no evidence or allegation to confirm that the USS Intrepid visited the inland waters of Vietnam. Haas, 525 F.3d at 1187-1190. Therefore, it cannot be presumed that he was exposed to a herbicide agent during his service. The Board adds that the Veteran has provided unclear and at times inconsistent statements as to whether he set foot onto the Vietnam landmass. In his August 2005 NOD, he says he was in Vinh, Vietnam near the DMZ. This is not supported by any other evidence of record. In fact, the Veteran never alleges it again, and he never provides details regarding the date or circumstances of this alleged exposure. In his April 2006 statement he says he was "catapulted" of the USS Intrepid and landed in Saigon, Vietnam, but there is no official record of this ever happening, including in the ship histories submitted by the Veteran. In contrast, in a long October 2005 statement, he never states that he set foot in Vietnam, but rather that "blue water" sailors by were in Vietnam "by proxy." He also alleges "tours" in Vietnam on several other naval vessels, but his SPRs do not support his assertions. The Veteran's lack of clarity and inconsistencies in describing specifically how and when and under what circumstances he set foot in Vietnam do not assist his claim. Since the Board has determined that the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related disease under 38 C.F.R. § 3.309(e) to be applicable. However, the Board finds insufficient evidence to support a finding of actual exposure to herbicides in service to include his alleged service in Guam and Okinawa, Japan. The Veteran argues that herbicides were carried onto his aircraft carrier by naval aircraft contaminated with Agent Orange, returning from Vietnam. Since he worked directly with aircraft due to his MOS in aviation ordinance, he believes he was thereby exposed to Agent Orange. But the Board does not see any specific competent evidence in the claims file confirming that aircraft contaminated with Agent Orange or other herbicide were carried onto US naval vessels off the coastal waters of Vietnam. The Veteran is not competent to assert that naval aircraft were contaminated with Agent Orange particles, absent testimony that he actually saw the substance. He has made no such allegation. There is no probative or confirmatory evidence he was exposed to Agent Orange or other herbicide in such manner. Another threshold question is whether there is sufficient evidence that the Veteran was exposed to herbicides in Guam or Okinawa, Japan. If the Veteran was so exposed, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases would apply, since the Veteran has been diagnosed with recent prostate cancer. Initially, his SPRs do not reveal the Veteran ever being stationed in Guam or Japan. However, even assuming he was, here, there is little in the record, other than his vague statements, that the Veteran was exposed to any toxins or herbicide while stationed in these locations. He has submitted Internet articles detailing how certain Veterans were awarded service connection for Agent Orange exposure in Guam and Japan in the early 1960s in particular circumstances. He also has submitted a rating decision from the RO and a Board decision of the Board of other Veterans who were awarded service connection based on herbicide exposure in Guam and Japan in particular circumstances. However, unlike the Veterans discussed in the Internet records or the rating decision from the RO or the Board decision of the Board, the Veteran in the present case failed to discuss the specific circumstances of how he was exposed to Agent Orange in these locations. He also failed to discuss how his particular MOS would have caused him to be in contact with Agent Orange in these locations. Even if he did indeed visit these locations, this would not automatically mean he was exposed to Agent Orange. No presumption of exposure is available for these locations. His SPRs are also negative for any herbicide exposure in these locations. In short, there is insufficient evidence of the Veteran's alleged exposure to Agent Orange in Guam or Japan. As such, the Board finds the evidence is insufficient to demonstrate exposure to herbicides during his military service, and the Veteran is therefore not entitled to service connection for prostate cancer on a presumptive basis as discussed in 38 C.F.R. § 3.309(e). This does not, however, preclude the Veteran from establishing his entitlement to service connection for prostate cancer with proof of actual direct causation. Combee, 34 F.3d at 1043. The Court has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). However, the Board finds that service connection for prostate cancer on a direct basis is not warranted. STRs are negative for any complaint, treatment, or diagnosis of a prostate disorder during service. Post-service, the first mention in the claims file of complaints or treatment for prostate cancer is from 1995, nearly 20 years after the Veteran's discharge from service. In this regard, in an April 2006 statement, the Veteran states he was first treated for a slightly enlarged prostate in 1995. In fact, the Veteran has never alleged earlier prostate-related symptoms. The Federal Circuit Court has held that such a lengthy lapse of time between the alleged events in service and the initial manifestation of relevant symptoms after service is a factor for consideration in deciding a service-connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). It follows that there is no medical or lay basis to award service connection for his prostate cancer based on chronicity in service or continuous symptoms thereafter. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-97. In addition, the presumption of in-service incurrence for chronic diseases, in this case a malignant tumor, is not for application. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Finally, there is no competent evidence of a nexus between his prostate cancer and his military service decades earlier, to include his alleged exposure to herbicides at that time. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). The Board acknowledges the Veteran is competent to report purported symptoms of prostate cancer and any related problems. See 38 C.F.R. § 3.159(a)(2). However, neither he nor his representative, without evidence showing that either has medical training or expertise, is competent to render an opinion as to the medical etiology of the prostate cancer. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's prostate cancer claim on either a direct or presumptive basis. So there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for prostate cancer, to include as due to herbicide (Agent Orange) exposure, is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs