Citation Nr: 1241751 Decision Date: 12/06/12 Archive Date: 12/13/12 DOCKET NO. 10-05 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for prostate cancer, status post prostatectomy, to include as due to alleged exposure to herbicides and to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to August 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in February 2011, when it was remanded for additional development. The Board finds that there has been substantial compliance with the directives of the Board's February 2011 remand. In accordance with the remand directives, the RO/AMC (Appeals Management Center) submitted an appropriate request to the Joint Service Records Research Center (JSRRC) for any information that might corroborate the Veteran's alleged herbicide exposure in Guam; after appropriate response and follow-up, the RO/AMC produced a formal memorandum in June 2012 documenting efforts to develop information concerning the alleged herbicide exposure. In this case, the Board has reviewed both the Veteran's physical claims file and the Veteran's electronic file through the "Virtual VA" system to ensure a complete review of the evidence. The Board notes that the Veteran's recent September 2012 written statement appears to refer to a claim of entitlement to service connection for urinary incontinence. No such issue has been perfected for appellate review, and this matter is not currently before the Board. The issue of entitlement to service connection for urinary incontinence is hereby referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is not shown to have served in the Republic of Vietnam during his active service, and is not otherwise shown to have been exposed to herbicide agents during service. 2. Prostate cancer was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise related to the Veteran's active duty service (to include the Veteran's exposure to ionizing radiation during service). 3. Service connection for prostate cancer is not in effect, thus the Veteran's claim for service connection for erectile dysfunction on a secondary basis must be denied as a matter of law. 4. Erectile dysfunction was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). 2. Erectile dysfunction was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to be incurred in such service. Neither has erectile dysfunction been caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in January, February, and March 2007. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records have been obtained, and the Veteran has not contended otherwise. VA has assisted the Veteran in obtaining private medical evidence, obtained service department information concerning the Veteran's allegations of herbicide exposure during service in Guam, and referred the claim to the Under Secretary for Benefits to obtain an appropriate opinion regarding the Veteran's in-service exposure to ionizing radiation (in accordance with 38 C.F.R. § 3.311(b)(5)). With regard to service connection issues being decided herein, the Board finds that VA medical examinations (with nexus opinion) are not required in order to make a final adjudication with regard to the service connection claims on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), states, that in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board finds that the standards set forth in McLendon are not met with regard to the issues on appeal in this case. There is no credible evidence of an event, injury, or disease during service or within a presumptive period to satisfy the second McLendon requirement. As discussed below, the evidence in this case establishes that the Veteran is not shown to have been exposed to pertinent herbicide agents during service, the evidence shows that the Veteran's exposure to ionizing radiation during service was not of a sufficient dose to be reasonably linked to causing prostate cancer, and the Veteran is not shown to have had any pertinent manifestations of any claimed disability during service or for many years thereafter (the Veteran does not contend that any claimed disability manifested prior to 1994). Finally, no further development is necessary with regard to the Veteran's claim that his erectile dysfunction is secondary to his prostate cancer; service connection may not be granted on this basis in view of the fact that service connection for prostate cancer is denied. As such, VA examinations are not necessary. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The Veteran claims entitlement to service connection for prostate cancer, claimed as a result of alleged exposure to herbicide agents or a result of exposure to ionizing radiation during military service in Guam. The Veteran also claims entitlement to service connection for erectile dysfunction, which he claims as secondary to prostate cancer. The issue before the Board involves claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cancer, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A Veteran who served in the Republic of Vietnam during the Vietnam era 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 U.S.C.A. § 1116(f). Diseases associated with such exposure include prostate cancer. 38 C.F.R. § 3.309(e). This shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Service personnel records are negative for findings that the Veteran served in Vietnam. The Veteran does not contend otherwise. The presumption of exposure to herbicides therefore does not apply. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309. Since the Veteran cannot be presumed to have been exposed to herbicides during his military service, such exposure cannot be found to have occurred without affirmative evidence demonstrating such exposure. Failure to establish presumptive service connection based on herbicide exposure does not preclude the Veteran, however, from establishing direct service connection. In Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam and elsewhere, but must also determine whether his current disability is the result of active service under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). In this case, service treatment records are negative for complaints, treatment, or diagnosis of prostate cancer. The evidence of record, and specifically the Veteran's own description of this disability in his original filing of this claim in December 2006, indicates a diagnostic onset date in 1994 for prostate cancer, approximately 14 years after the Veteran's active duty service. This significant gap weighs heavily against the Veteran's claim. See Maxson v. West, 12 Vet.App. 453, 459 (1999). The Veteran does not argue to the contrary. Again, he asserts that his prostate cancer is the result of his alleged exposure to herbicides or his exposure to ionizing radiation while being stationed in Guam. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Claimed Herbicide Exposure The Board finds that the evidence of record does not demonstrate that the Veteran was exposed to Agent Orange or other pertinent tactical herbicide agents. The Veteran's personnel records indicate that he served in Guam during the war in Vietnam. However, the Department of Defense has not established that Agent Orange was used in Guam during the period of the Veteran's service. VA requested additional records relating to possible herbicide exposure from the National Personnel Records Center (NPRC) in January 2007 but none were found. Indeed, the NPRC specifically noted "No records of exposure to herbicide." VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's updated Adjudication Procedure Manual, M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n) directs that a detailed statement of the veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the Department of Defense's ("DoD") inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. The specified procedures have now been completed in this case, and the preponderance of the probative evidence is against finding confirmed exposure to a pertinent herbicide agent during this Veteran's military service. In this case, a memorandum was obtained from the C&P Service in September 2008 which did not verify exposure; the September 2008 memorandum describes a review of listings of herbicide use and test sites outside Vietnam from the DoD, as well as other sources of information including official DoD monographs describing in detail the use, testing, and storage of herbicides at various locations. The memorandum explains that the DoD list does not show any use, testing, or storage of tactical herbicides, such as Agent Orange, on Guam during the 1960s. The memorandum additionally notes that the DoD monographs do not identify Guam as being associated with tactical herbicides in the 1960s. The memorandum advises that the Veteran may be referring to some small-scale brush or weed clearing activity around the base and airfield for which there is no record of activity with DoD and "no way to know the chemical content of any such non-tactical herbicide use." The Board observes, in passing, that non-tactical herbicides with unknown chemical content are not covered by 38 CFR § 3.309(a)(6)(i). Following the Board's February 2011 remand, the RO/AMC took further significant steps to attempt to verify the Veteran's alleged in-service exposure to tactical herbicides. As summarized in a June 2012 memorandum, in May 2011 a detailed description of the Veteran's alleged exposure was sent via email to Compensation Service's Agent Orange Mailbox to request a review of DoD's inventory of herbicide operations to determine whether herbicides were used in Guam as alleged by the Veteran. The response received stated, "the DoD information provided to VA does not contain any herbicide test, storage, or use sites on Guam." The Board further notes that the response acknowledges that Andersen Air Force Base has been listed by the Environmental Protection Agency (EPA) as a toxic site, but explains that "VA cannot locate any EPA report, or any other competent and credible expert report, that identifies dioxin as one of the potential significant toxins on Guam." The report quotes an April 2010 statement from the Guam Program Manager of the Pacific Islands Office of the EPA (holding that position since 1997) asserting that although Guam sites have been contaminated with toxic chemicals: "I am not familiar with any tactical use of pesticides on Guam, nor have I ever seen any reports identifying the presence of agent orange anywhere on Guam." As summarized in the June 2012 memorandum, in February 2012 JSRRC was requested to verify if anyone associated with the Veteran's assigned location at the pertinent times would have been exposed to herbicides. The JSRRC's negative response indicated that review of the DoD listing of tactical herbicide spray areas and test sites outside of the Republic of Vietnam indicates that Agent Orange and other tactical herbicides were not used, tested, disposed of, or stored on the Island of Guam, including the Naval Magazine, Fuel Farm, and the USAF Fuel Farm, bases and air fields listed on Guam during the period described by the Veteran. The JSRRC referred further inquiry concerning other toxic substances (other than tactical herbicides) to the Navy and Marine Corps Public Health Center in Portsmouth, VA. In March 2012, a request was sent to the identified Public Health Center for any and all information concerning the presence of toxic substances other than tactical herbicides in Guam during the pertinent period; the response received in March 2012 stated that their command has no documents responsive to the request. The RO/AMC's June 2012 memorandum contains a formal finding that all procedures and efforts to obtain information corroborating the Veteran's alleged exposure to tactical herbicides have been exhausted, and any further attempts would be futile. Further consideration has also been given to the documents submitted by the Veteran in support of his claim. The Board has reviewed the submitted photographs of unlabeled barrels and dead vegetation from Andersen AFB, but is unable to find probative evidence of the Veteran's exposure to Agent Orange from these. The Board also acknowledges the Veteran's own statements that he witnessed and/or was made aware of the use of tactical herbicides near his location or locations in Guam, but the objective evidence of record does not support such a conclusion. The Veteran has also testified that that he was involved in washing aircraft and dealing hands on with equipment that was covered in tactical herbicides, but the basis of the Veteran's determination of the presence of tactical herbicides are not made persuasively clear, and the objective evidence of record does not support the Veteran's conclusion. Further, it has not been shown that the Veteran's statements or any other referenced first-hand accounts of tactical herbicide use are informed by the professional expertise necessary to precisely identify the particular chemicals that constitute pertinent tactical herbicides. The Board must find that the official service department records showing no presence of tactical herbicides on Guam during or around the Veteran's service are most probative. The Veteran has also submitted a packet of assorted articles and narratives concerning contamination findings associated with Guam and Andersen Air Force Base. The documents submitted by the Veteran clearly reflect findings of toxic contamination in Guam, particularly as detected in relatively recent years. The package of documents also clearly reflects that certain individuals believe that Agent Orange and/or other tactical herbicides were released on Guam during the Vietnam War. However, these documents do not demonstrate that the Veteran was exposed to a pertinent tactical herbicide during his service. Much of the evidence is anecdotal or lacking in citation to objective authority of a nature matching the probative value of official and contemporaneous service department records and EPA statements concerning the issue. In reviewing the totality of the evidence in this case, the Board must find that the official service department records showing no use or storage of pertinent tactical herbicide where the Veteran served during the time he served in Guam are highly probative. The Board finds that the statement of the Guam Program Manager of the Pacific Islands Office of the EPA indicating that the known toxic contamination of Guam does not include any indication of the presence of tactical pesticides or Agent Orange anywhere on Guam is highly probative and contradicts the evidence suggesting that Agent Orange has been credibly detected on Guam. The Board finds that the evidence supporting the Veteran's claim through indications of observed tactical herbicides on Guam and detection of tactical herbicide contamination of Guam is not as probative as the evidence which contradicts those indications. The Board notes that many of the documents submitted to demonstrate toxic findings concerning Guam and Andersen AFB do not reference any herbicide agents identified in 38 C.F.R. § 3.307(a)(6). To the extent that multiple documents discuss toxic contamination in Guam, they are pertinent to the specific issues in this case only to the extent that such findings may be considered to suggest that the Veteran was exposed to a pertinent herbicide agent during service; indications that Guam may now be contaminated with various other toxic substances are not sufficient to establish that the Veteran was exposed to a pertinent herbicide agent during service. To the extent that some of documents, such that those featuring the findings of Dr. Szyfres, suggest that tactical herbicides were used or stored in locations on Guam, the Board finds that these assertions are less probative than the official military service department records (showing that the military did not use or store tactical herbicides on Guam during the time pertinent to this appeal) and the statement of the EPA manager on the question (showing that the EPA's identification of toxic contamination of Guam does not include any suggestion of tactical herbicides on the island). None of the evidence adequately shows that the Veteran was exposed to a pertinent herbicide agent during service, and the evidence supportive of the Veteran's claim is contradicted by more persuasive probative evidence from multiple reliable official sources in this case. The Board also observes, as is discussed in documents presented by the Veteran, that over a period of several years there has been increased attention directed by U.S. agencies and lawmakers towards the question of alleged tactical herbicide use in Guam during the Vietnam War. However, to date, even with such official scrutiny of the question, there remains no official documented indication of such tactical herbicide use in Guam. Nor has Guam been added to the list of locations for which exposure to such herbicide agents may be presumed. The Board observes that the Veteran's submitted documentation indicates increased attention paid to investigating whether Guam should be designated as a site of pertinent herbicide agents during the Vietnam War, including information about other veterans' allegations and an inquiry by Congressman Lane Evans seeking further investigation of such allegations. No information available to the Board indicates that Guam has been designated by the Department of Defense as a site of pertinent herbicide agent exposure during the Vietnam War. Indeed, a September 2003 Department of Defense reply to Congressman Evans' inquiry is of record and expressly indicates "we have no record of long-term storage or use of these herbicides on Guam" other than brief storage in 1952. The preponderance of the evidence is against finding that the Veteran was actually exposed to a pertinent herbicide agent during military service. The Board understands the Veteran's contentions and recognizes that the documents he has submitted indicate significant interest in investigating the possibility of pertinent herbicide agent use in Guam during the Vietnam War. However, the increased attention paid to some suspicions of pertinent herbicide agent use in Guam has not resulted in any evidence that would permit the Board to find that the Veteran is shown to have been actually exposed to pertinent herbicides. Service connection may not be based on a resort to speculation or mere possibility. See 38 C.F.R. § 3.102. The Board also acknowledges the Veteran's contention that at least one other Veteran has been service-connected for a disease or disability as a result of herbicide exposure in Guam. However, since Board decisions are non-precedential, previous decisions have no bearing on the outcome of this case. See 38 C.F.R. § 19.5 (listing the criteria governing the disposition of Board decisions). Therefore, the Board may only rely on the applicable law and the facts and circumstances of this particular case. In sum, the Board finds that the evidence does not show that the Veteran was exposed to pertinent herbicide agents during service. Therefore, service connection for prostate cancer cannot be awarded on the basis of such alleged exposure. Claimed Radiation Exposure The Veteran also contends that his prostate cancer may be the result of occupational exposure to ionizing radiation during his military service in Guam. Claims based upon exposure to ionizing radiation are governed by separate regulations and each provides a separate distinct basis for establishing service connection based on exposure to ionizing radiation. See 38 C.F.R. §§ 3.309, 3.311. First, there are diseases that are presumptively service connected in radiation-exposed Veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. 38 C.F.R. § 3.309(d) A disease associated with exposure to radiation listed in 38 C.F.R. § 3.309(d) will be considered to have been incurred in service by a radiation-exposed Veteran under the circumstances outlined in that section. Specifically, if a Veteran, while on active duty, active duty for training, or inactive duty training, participated in a "radiation-risk activity," then the diseases listed under 38 C.F.R. § 3.309(d) shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. The listed diseases are: Leukemia (other than chronic lymphocytic leukemia); cancers of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland and urinary tract; multiple myeloma; lymphomas (except Hodgkin's disease); and primary liver cancer (except if cirrhosis or hepatitis B is indicated). 38 C.F.R. § 3.309(d). Effective March 26, 2002, cancers of the bone, brain, colon, lung, and ovary were added to the list of diseases specific to radiation-exposed Veterans set forth at 38 C.F.R. § 3.309(d). See 67 Fed. Reg. 3612-16 (Jan. 25, 2002). The term "radiation-exposed Veteran" includes a Veteran who while serving on active duty participated in a "radiation-risk activity." 38 U.S.C.A. § 1112; 38 C.F.R. § 3.309(d). A "radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(ii). In this case, it is not shown or contended that the Veteran participated in a radiation risk activity; as such, the provisions of 38 C.F.R. § 3.309(d) do no not apply in this case. The Veteran's statements, including his February 2007 written explanation of his contended radiation exposure, do not assert that he participated in any specified "radiation risk activity" as defined by 38 C.F.R. § 3.309(d)(3)(ii). As such, the provisions of 38 C.F.R. § 3.309(d) do no not apply in this case. 38 C.F.R. § 3.311 Service connection may also be considered based on exposure to ionizing radiation under the provisions of 38 C.F.R. § 3.311. To consider service connection under Section 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations. 38 U.S.C.A. § 501; 38 C.F.R. § 3.311(b). For cancer, the disease must have manifested five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these three requirements are met, the claim must be referred to the Under Secretary for Benefits for further consideration. This section does not provide presumptive service connection for radiogenic diseases, but only outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. For the purposes of 38 C.F.R. § 3.311, radiogenic disease means a disease that may be induced by ionizing radiation and shall include the following: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; cancer of the thyroid, breast, lung, bone, liver, skin, esophagus, stomach, colon, pancreas, kidney, urinary bladder, salivary gland, and ovary; multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer; and any other cancer. 38 C.F.R. § 3.311(b)(2) . Prostate cancer (amongst all cancers) is included in the list of "radiogenic" diseases at 38 C.F.R. § 3.311(b). Again, this regulation does not create a presumption of service connection, but merely accords the claimant special processing of the claim. Such processing "still requires a case-by-case determination of service connection for each claim based on one of the listed diseases." See Ramey v. Brown, 120 F.3d at 1245. The Veteran, including in his February 2007 written statement on this subject, has asserted that his in-service responsibilities included work as an Explosive Ordinance Disposal Technician (EOD) during assignment in Guam. The Veteran recalls that his duties on several bases brought him to locations where "Nuclear Weapons" were located, and the Veteran recalls that he was in physical contact with weapons that had a "back[g]round radiation source reading," and the Veteran was "required to wear film badges and dosimeters" which "indicated we had been exposed." The Veteran's service personnel records do reflect that the Veteran was exposed to ionizing radiation during active duty service. The Veteran's records from service include a report (DD Form 1141) documenting exposure to ionizing radiation from November 1964 to May 1977, with an accumulated total lifetime dose of 0.057 rem during service. The post service evidence reflects a diagnosis of prostate cancer in or about May 1994. The facts as presented above mandating such action under 38 C.F.R. § 3.311(b), this information was summarized by the office of the VA Director of the Compensation and Pension Service in an October 2007 request to the VA Under Secretary for Health. The request mandated a dose estimate and opinion as to whether the Veteran's prostate cancer was the result of ionizing radiation. The October 2007 request included details of the Veteran's military service, his May 1994 diagnosis of prostate cancer, the absence of reported post-service radiation exposure, the absence of a smoking history, and the presence of a family history of colon cancer. Thereafter, in response to the October 2007 inquiry, the VA Chief Public Health and Environmental Hazards Officer completed an opinion in October 2007 that "it is unlikely that the veteran's prostate cancer can be attributed to occupational exposure to ionizing radiation in service." The opinion is documented to have been based on the Veteran's service records (including the DD 1141 forms) showing occupational exposure to a dose of "0.057 rep, rad, or r" of ionizing radiation during military service. The opinion cites that the sensitivity of the prostate to radiation carcinogenesis appears to be relatively low and not clearly established, referencing specific medical literature on this point. The opinion explains that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was utilized to estimate the likelihood that exposure to ionizing radiation was responsible for the prostate cancer; in accordance with guidance on utilizing the NIOSH IREP, the cancer model for all male genetalia was used and the computer software calculated a 99th percentile value for the probability of causation of 0.04%. The October 2007 opinion includes attached pages detailing the probability determination. In October 2007, the Director of Compensation and Pension Service issued an advisory opinion essentially adopting the conclusions and analysis of the VA Chief Public Health and Environmental Hazards Officer's report. Given the official finding above obtained pursuant to the required special processing of claims involving radiogenic diseases such as the prostate cancer at issue, the Board finds that service connection for prostate cancer is not warranted with application of the provisions of 38 C.F.R. § 3.311 alone. See Ramey, supra. The October 2007 formal opinion of the VA Chief Public Health and Environmental Hazards Officer, obtained in the manner prescribed by 38 C.F.R. § 3.311, finds that the Veteran was not exposed to a sufficient level of radiation during service to be reasonably medically linked to causing prostate cancer. This evidence is highly probative, weighs against the claim, and is uncontradicted by any other competent evidence on the point. In short therefore, service connection for prostate cancer cannot be granted under 38 C.F.R. § 3.311. Direct Service Connection under 38 C.F.R. §§ 3.303, 3.309(a) As stated above, under Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to herbicides or ionizing radiation under the regulatory presumptions of 38 C.F.R. §§ 3.307, 3.309 and 3.311, but also must determine whether the disability was otherwise the result of active service. The Board notes initially that because the Veteran's prostate cancer was first indentified many years after service in or about 1994, entitlement to service connection with application of the presumptions with regard to "chronic" disabilities under 3.309(a) is not warranted. Under these presumptions, service connection for cancer may be granted if demonstrated to a compensable degree within one year of service. In this case, the prostate cancer at issue is not shown clinically prior to 14 years after service; the Veteran himself asserted in his December 2006 filing of this claim on appeal that his prostate cancer began in 1994. With respect to entitlement to service connection for prostate cancer without the application of any statutory or regulatory presumption, the lengthy period following service prior to any shown manifestation of prostate cancer weighs against a direct theory of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board recognizes the contentions and oral testimony of the Veteran, and acknowledges the Veteran's own belief that his prostate cancer is causally connected with his time in service. However, while the Veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board has considered the Veteran's testimony regarding lay-observable events, but finds that the most probative evidence concerning the decisive questions in this case is against the Veteran's claim, and that linking prostate cancer to service requires a medical determination beyond the expertise of a lay person such as the Veteran. Espiritu, supra. In summary, the Veteran's service treatment records, to include the reports from the June 1980 separation examination and medical history collected at that time, make no suggestion of any problems related to prostate cancer, and the prostate cancer at issue was not diagnosed for many years after service. No medical evidence appears in the record to suggest that the Veteran suffered from prostate cancer during service or within one year after service. Therefore, the Veteran's prostate cancer was not manifested during the Veteran's active service or for many years thereafter, nor is this prostate cancer shown to be otherwise related to such service. The Board has considered and addressed each of the Veteran's reasonably specified theories of service connection on the basis of exposure to tactical herbicides and to ionizing radiation; the Veteran has not raised any other reasonably specified theories of entitlement in his reference to "various" other toxic chemicals found in Guam. In short, therefore, the Board finds that a preponderance of the evidence is against the claim of entitlement to service for prostate cancer based on all theories of entitlement. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Erectile Dysfunction The Veteran claims entitlement to service connection for erectile dysfunction, contending that this disability is a result of the prostate cancer for which he was also sought to establish service connection. The Veteran's claim of entitlement to service connection for erectile dysfunction essentially features the theory that his erectile dysfunction is a consequence of prostate cancer. However, service connection for prostate cancer is not warranted in this case. The Veteran himself acknowledges, in his filing of this claim in December 2006, that his erectile dysfunction first manifested in 1994 and not during military service or for many years thereafter. The Veteran's service treatment records reveal no suggestion of erectile dysfunction; in this regard, the Veteran's June 1980 separation examination report shows no symptoms or pathologies pertinent to this claim were present when the Veteran's period of service concluded. Therefore, the Board finds that the evidence does not support any basis for granting service connection for erectile dysfunction. The preponderance of the evidence is against finding any etiological link to service for erectile dysfunction. The Veteran's primary theory of entitlement to service connection for erectile dysfunction in this case features his contention that his erectile dysfunction is due to prostate cancer which, in turn, is due to Agent Orange exposure. Above, the Board has determined that service connection is not warranted for prostate cancer. Thus, service-connection for the claimed erectile dysfunction secondary to prostate cancer is barred as a matter of law. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet.App. 426 (1994). Conclusion The Board observes that the Veteran has recently asserted (in a September 2012 statement) that "various" and "numerous" other toxic chemicals were involved in U.S. military activities surrounding his service on Guam, and the Veteran generally suggests that the presence of such toxicity supports his claims. The Board acknowledges that there is evidence indicating that significant toxic contamination may have occurred on Guam in connection with military activity. However, the Veteran's contention that such toxic contamination on the island broadly serves as a basis for a grant of service connection for prostate cancer lacks sufficient specificity in that the Veteran does not reasonably identify a particular exposure (aside from the alleged tactical herbicide and ionizing radiation exposure discussed above) that may have caused his prostate cancer. The Board can only meaningfully address reasonably specified contentions (such as the Veteran's identification of tactical herbicides and ionizing radiation as alleged causes of his prostate cancer). The Board is unable to engage in a meaningful analysis, or direct reasonable development, concerning a vague assertion that "various" other toxic chemicals found in Guam caused the Veteran's prostate cancer. Aside from what the Board has discussed in this decision, the Veteran has not otherwise reasonably articulated any alleged exposure to a possible cause of prostate cancer during his military service. In this regard, submitted evidence showing that Guam has been contaminated with numerous toxic chemicals does not articulate a reasonably discernible theory of service connection for the Veteran's prostate cancer. To the extent that the Veteran has advanced a general contention regarding "various" toxic chemicals, the Board finds that there is no competent evidence to show that the Veteran was exposed to any identified chemical shown to be a possible cause of prostate cancer in this case. (The Veteran may always present new and material evidence in the future to reopen this claim by showing that he was exposed to an identified chemical or chemicals which may have caused his prostate cancer.) Having determined that the Veteran is not shown to have been exposed to pertinent herbicide agents, and having determined that the Veteran was not exposed to a sufficient level of radiation during service to be medically linked to causing prostate cancer, no such alleged exposure may serve as a basis upon which service connection for prostate cancer may be granted in this case. The Veteran has not otherwise articulated any alleged exposure to another possible cause of prostate cancer during his military service. Neither any evidence nor the Veteran's contentions in this case suggest that prostate cancer manifested during service, within a year following service, or is otherwise causally related to service other than through the theories involving alleged herbicide exposure or radiation exposure. The Board acknowledges the Veteran's strong belief that he was exposed to Agent Orange in Guam and that he was exposed to sufficient radiation during service to cause his prostate cancer. The evidence submitted by the Veteran in this regard has been carefully reviewed and considered. However, the pertinent evidence from official sources appears to be based on more accurate first-hand knowledge and research into the possible use of herbicides in Guam, and the pertinent evidence indicates that the dose of the Veteran's in-service radiation exposure was not sufficient to be reasonably linked to causing his prostate cancer. In conclusion, service connection is not warranted on any basis for prostate cancer and for erectile dysfunction. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides, including Agent Orange, during his active duty service. The preponderance of the evidence is against a finding that the Veteran's prostate cancer is causally linked to his particular dosage of exposure to radiation during service. Further, a preponderance of the evidence is against a finding that the Veteran's prostate cancer and his erectile dysfunction on appeal are otherwise related to his active duty service. As such, the benefit-of-the-doubt rule does not apply and service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). ORDER The appeal is denied as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs