Citation Nr: 1236349 Decision Date: 10/19/12 Archive Date: 11/05/12 DOCKET NO. 12-18 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active military service from June 1954 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which in pertinent part denied entitlement to service connection for prostate cancer claimed as a result of exposure to herbicides. FINDINGS OF FACT 1. The Veteran did not set foot on the landmass of Vietnam during the Vietnam era. 2. The most probative evidence does not establish that the Veteran was exposed to herbicides during active service. 3. Competent evidence of record reflects that prostate cancer was first diagnosed in December 2009, more than 32 years after separation from service, and there is no competent evidence suggesting that such is related to service. CONCLUSION OF LAW The requirements for establishing service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, December 2009, February 2010, and September 2010 letters provided the Veteran with notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The February 2010 letter requested additional information and evidence regarding the claimed exposure to herbicides at the Utapao Air Force Base (AFB) in Thailand. The letters also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The case was last adjudicated in June 2012. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment and personnel records, Air Force documents regarding accidents and casualties, post-service private and VA treatment records, articles and prior Board decisions, and lay statements. The Veteran was not provided with a VA examination to assess his claim for service connection for prostate cancer. However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2011); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the evidence does not suggest and the Veteran does not contend that prostate cancer manifested during service or within the year following discharge, or that it is related to service for reasons other than claimed Agent Orange exposure. Moreover, there is no competent or credible evidence that the Veteran was, in fact, exposed to herbicides as alleged. Therefore, a VA examination is not warranted. The Board also acknowledges that a November 2010 inquiry to the Social Security Administration (SSA) revealed that the Veteran has been receiving benefits since 1998. However, this inquiry reflects that he is receiving benefits based on age, not disability. Accordingly, remand to obtain SSA records would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991), 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). As discussed above, the Veteran was aware of the evidence needed to substantiate the claim based on exposure to herbicides, and he was notified and aware of the avenues through which he might obtain such evidence as well as the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the claims file and electronic Virtual VA record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; competent evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). 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, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). "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. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). Recently, 38 C.F.R. § 3.307 was amended to include service between April 1, 1968, and August 31,1971 in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. 76 Fed. Reg. 4245-01 (Jan. 15, 2011) (to be codified at 3.307(a)(6)(iv)). The Veteran does not contend that he served in Korea at any time during this period. When a Veteran exposed to an herbicide agent during the Vietnam era develops prostate cancer to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2011). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he was exposed to Agent Orange (herbicides) in 1966, 1967, and 1968. Service treatment records were entirely silent for any complaints, findings, or treatment for prostate problems. A March 1977 retirement examination report indicated that prostate examination was normal and occult blood was negative. The records included treatment at the Andersen Air Force Base (AFB) in Guam in October and November 1966 and March 1967, and at the Kadena AFB in Okinawa, Japan in March 1968. Service personnel records indicate that the Veteran's foreign service included a temporary duty assignment (TDY) that began in September 1966 for 182 days and a TDY from February to April 1968. His duty title between 1966 and 1968 was combat crew gunner. The September 1966 TDY order identified the purpose of the TDY as an operational deployment of the unit to the Andersen AFB in Guam for approximately 179 days with variations authorized in support of project Arc Light. An evaluation report for the period from March 1966 to March 1967 described the Veteran's performance during "Arc Light" operations. An evaluation report for the period from March 1967 to March 1968 indicated that the Veteran was currently engaged in flying missions in support of Southeast Asian operations and was responsible for assisting in emergency bombing problems. Evaluations for the period from March 1966 to March 1967 listed his current duty as defensive fire control system technician. His service personnel records include a description of combat involving "44 aerial missions, Southeast Asia, September 1966 to March 1967, out of country combat missions; and one combat mission, 4.5 hours flight time, B52D, Vietnam; 22 combat mission." Awards included the Vietnam Service Medal (VSM) and Air Medals for contributing to the mission of the United States Air Force in Southeast Asia between September 1966 and February 1967. He was also presented with membership in the B-52 2000 Hour Club for outstanding airmanship. In a post-service November 1999 VA biopsychosocial history questionnaire, the Veteran identified combat experience to include two tours in Vietnam and his military occupation as B-52 tailgunner/aircraft maintenance officer. In a November 2000 VA psychiatry note, the Veteran reported having two tours in Vietnam doing low-level combat flying. In his November 2000 claim for service connection for posttraumatic stress disorder (PTSD), he claimed that he had PTSD due to stressors associated with his Air Force service while assigned as a B-52 tail gunner at Guam and Thailand. He stated that he flew in excess of one hundred sorties of combat missions over Vietnam during his two tours of duty. In a November 2000 stressor statement, he described events during the period from April 1958 through July 1968 when he served as a B-52 tail gunner in locations that included the Andersen AFB in Guam; the Kadena AFB in Okinawa, Japan; the Utapao AFB in Thailand; and "over Vietnam" and the China Sea. He reported that he was assigned to combat in September 1966, and he was aware that he would be flying bombing missions from the Andersen, Kadena, and Utapao AFBs. He described some bombing missions to Vietnam. During a September 2003 VA PTSD examination, the Veteran indicated he was a B-52 gunner for ten years; and he "did it in Vietnam," but was based in Thailand, Guam, etc. In May 2008, the Veteran claimed entitlement to service connection for a growth on his lung, which he believed was due to Agent Orange. He stated that he was in Vietnam, Guam, and Thailand in 1966, 1967, and 1968. In a June 2008 buddy statement, another Air Force gunner, C. W., stated that he and the Veteran were both flying combat missions out of the Royal Thai Air Force Base (RTAFB) at Utapao, Thailand in 1968 and that they "were exposed to Agent Orange used to defoliate the perimeter of the base." In July 2008 correspondence, the Veteran stated that he spent many hours on the flight line at Utapao AFB preparing for combat missions. On a July 2008 VA Authorization and Consent to Release Information (VA Form 21-4142), the Veteran commented that he had "two combat tours [sic] Vietnam." A March 2009 rating decision issued by the RO in pertinent part denied entitlement to service connection for a lung nodule, to include as a result of exposure to herbicides. The Veteran's claim for service connection for prostate cancer was received in December 2009. Private treatment records reflect that prostate cancer was also diagnosed in December 2009. In January 2010, the Veteran clarified that he was claiming prostate cancer based on his service in Southeast Asia in 1966, 1967, and 1968, adding that Agent Orange was sprayed on the surrounding foliage at Utapao AFB. In a February 2010 letter, the RO requested additional information about any service in Vietnam and about when, where, and how he was exposed to herbicides outside of Vietnam. A VA Memorandum for the Record regarding herbicide use in Thailand during the Vietnam Era was associated with the claims file in February 2010. The Veteran replied in February 2010, stating that he flew combat missions to Vietnam from Andersen AFB in Guam with TDYs to Kadena and Utapao AFBs in Okinawa and Utapao, Thailand, respectively, before continuing on to Vietnam. He enclosed another buddy statement from C. W., who indicated that he flew combat missions from Utapao RTAFB in 1968 with the Veteran. He stated that the base was one of three locations that launched B-52 aircraft to fly bombing missions to Vietnam. He reported that the Veteran also flew missions from Kadena and Andersen AFBs. The Veteran also enclosed "evidence of Agent Orange used [in] Guam" in 1966 and in Okinawa and Thailand. The evidence included an article entitled "Agent Orange on Guam Confirmed" with three prior Board decisions involving claims for service connection based on herbicide exposure in Guam, Thailand, and Okinawa. The RO asked the National Personnel Records Center (NPRC) for any documents showing the Veteran's exposure to herbicide agents. However, it responded in March 2010 that there was no record of exposure to herbicides for the Veteran. In correspondence dated in September 2010, the Veteran reiterated his contention that he was exposed to Agent Orange while serving in three areas, Thailand, Guam, and Okinawa, which sprayed the perimeter of the flight line to remove foliage. He added that he was submitting a "Thailand Veteran Claim" entitled "Thailand Air Base Veterans" to support his claim. The enclosed article, published by www.bluewaternavy.org, advised readers that VA had granted a claim for "direct exposure to Agent Orange for an airman on a Thai Air Base who could prove he walked the perimeter as a guard." The article further noted that supporting documentation in the relevant claim included information from the service record showing that the airman had duty as a perimeter guard, which requires walking on the perimeter, and photographs. In his June 2011 notice of disagreement, the Veteran asserted that the aircraft at Utapao AFB were always parked at the perimeter of the base, and as a flight crew member, he was "in constant vicinity of the perimeter during preflights and post flights." He stated that Agent Orange is not stable and will "ride the wind or breeze, exposing personnel to its effects." He also declared that the statement conceding exposure to Agent Orange in Thailand only among security police "is not valid." A June 2012 memorandum detailed efforts to prove the Veteran's claim of herbicide exposure and made a formal finding on the negative response received by the NPRC on the unavailability of documents to support showing exposure to herbicides. The Board has considered the Veteran's claim for service connection for prostate cancer, to include as due to herbicide exposure, but finds that service connection for this disability is not warranted. As noted above, the medical evidence of record contains no objective findings of prostate cancer until December 2009, more than 32 years after separation from service. The passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record also does not include any medical opinion suggesting his prostate cancer arose during service or is related to service, nor does the Veteran contend such. Therefore, the Veteran's claim for service connection for prostate cancer must be denied on a direct basis, in addition to on a presumptive basis pursuant to 38 C.F.R. § 3.309(a). Instead, the issue in this case is whether the Veteran's prostate cancer is due to his claimed exposure to herbicides. The Veteran does not contend and the evidence does not show that he served in Korea. Regarding his combat missions to Vietnam as a B-52 gunner, the Board notes that the mere receipt of the VSM is insufficient to show that the Veteran had service in Vietnam. See Haas v. Peake, 525 F.3d 1168 (Fed.Cir.2008) (only veterans present on the landmass or inland waters of Vietnam are entitled to the presumption of service connection based on herbicide exposure, regardless of whether they were awarded the VSM). Moreover, the Veteran has consistently described flying B-52 combat missions to Vietnam, but has never stated that he was present on the landmass of Vietnam. Thus, the presumption of herbicide exposure for Vietnam service does not apply to his service. He contends that he was exposed to herbicides in Guam, Thailand, and Okinawa between 1966 and 1968. Regarding his service at Utapao AFB in Thailand, the Board initially notes that while his claimed service in Thailand is not documented in his service personnel or treatment records. His records do reflect a TDY to Guam in September 1966 with variations authorized, and his service treatment records document that he was in Okinawa. VA's Adjudication Procedural Manual, M21-1MR, notes that VA has determined special consideration should be extended to veterans who claim herbicide exposure in Thailand. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q). The M21-1MR directs adjudicators to concede herbicide exposure on a direct/facts-found basis for veterans who served in the U.S. Air Force in Thailand during the Vietnam Era, served at one of the RTAFBs, including Utapao, and performed duties that placed them on or near the perimeters of the base, such as security policeman, security patrol dog handler, or security police squadron. Thus, even if, arguendo, he did serve at Utapao, his duties were not ones which required walking the perimeter such as is performed by those noted above. The Board acknowledges that the Veteran is competent to report on his duties and activities during his service between 1966 and 1968 in Utapao, Guam, and Okinawa. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He has described those activities in statements provided from 2000 forward. Specific to herbicide exposure, he originally asserted in May 2008 that Agent Orange caused a lung growth, and in July 2008 he described spending many hours on the flight line. His buddy, C. W., relayed his general knowledge that Agent Orange was used to defoliate the perimeter of the Utapao AFB. In January 2010, the Veteran repeated the same general statement that the surrounding jungle foliage was sprayed at Utapao AFB. In September 2010, he submitted information regarding a service connection claim that was granted for an airman whose service record documented his duty as a perimeter guard at a Thai air base that was corroborated by photographs; at the same time, the Veteran again stated that Agent Orange was sprayed to remove foliage in Thailand, Guam, and Okinawa. Finally, in June 2011, he indicated that while in Thailand, the aircraft were always parked at the perimeter of the base and that he was "in constant vicinity of the perimeter during preflights and post flights." The June 2011 account eventually connecting the Veteran to the perimeter of the Utapao AFB in Thailand appears to constitute a change calculated to support the claim. Previously, he described his activities and duties on various bases, but did not explain specifically where or how he believed he was exposed to herbicides. The Board finds that the changing nature of the Veteran's claimed exposure during the course of his claim from merely being present at particular air bases to being in constant vicinity of the perimeter diminishes the credibility of his contentions. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In summary, neither the Veteran's June 2011 assertion that he was in the "constant vicinity of the perimeter" and that Agent Orange will "ride the wind," nor his military occupational specialty as a combat crew gunner between 1966 and 1968, including service records describing his duties, provides competent and credible evidence placing him in contact with or near the base perimeter at Utapao. Therefore, exposure to herbicides at Utapao AFB is not conceded because such exposure is unsupported by the record. In addition, the Department of Defense (DoD) has compiled a list containing 71 sites within the U.S. and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored. DoD records reveal no evidence of tactical herbicides being used, stored, or tested on Okinawa or Guam. Such evidence is more probative than the Veteran's lay assertion that he was exposed to Agent Orange in those locations while working on the flight line before or after combat missions to Vietnam. The Veteran has submitted copies of prior Board decisions in which a Veterans Law Judge determined that the veteran in that case was exposed to Agent Orange on Okinawa and Guam. However, Board decisions in appeals are not binding to the appeals of other individuals. 38 C.F.R. § 20.1303 (2011). Indeed, the facts of the other cases submitted are not identical to the Veteran's case, and the weight assigned to evidence by one judge in a different case does not factually establish the presence of herbicide use in Okinawa for purposes of this Veteran's claim. Indeed, the January 1998 Board decision appears to have assigned significant weight to unsubstantiated lay assertions of Agent Orange use in Okinawa, which DoD documentation now suggests were inaccurate. Similarly, the October 2005 Board decision seemed to rely on articles submitted by the veteran indicating that Agent Orange may have been stored or used on Guam from 1955 to the late 1960s and articles reflecting that in the 1990s the Environmental Protection Agency listed Andersen AFB as a toxic site with dioxin contaminated soil. The Board is cognizant of a 2003 DoD report on DoD testing and use of herbicides in areas in addition to Vietnam. The report covered activity in the 1940s through 1970s, and indicated the periods during which herbicides were used, tested, stored, or disposed in locations in the continental United States, Hawaii, Puerto Rico, Canada, Guam, Thailand, Cambodia, and Laos. However, Guam is not currently listed by DoD as a location where Agent Orange was used, tested, or stored. Therefore, while the Board has considered the prior decisions in other veterans' cases, those decisions are not binding and do not control the outcome of this appeal; rather, the facts of this particular case must be the determining factor. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's contention that he was exposed to herbicides during his Vietnam era service. As herbicide exposure is not established, his subsequent prostate cancer is not presumed to be related to herbicide exposure. Additionally, his prostate cancer was not shown in service or for many years thereafter. Accordingly, there is no basis upon which to establish service connection for prostate cancer, and the claim is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs