Citation Nr: 1302091 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 11-20 583 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from October 1964 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and March 2010 decisions by the RO which denied service connection for diabetes mellitus and prostate cancer, respectively. A hearing at the RO before the undersigned was held in July 2012. FINDINGS OF FACT 1. The Veteran does not allege, nor do the service records show that he served in Vietnam, and the evidence does not establish that he was exposed to Agent Orange in service. 2. The Veteran's diabetes mellitus and prostate cancer were not present in service or until many years thereafter, and there is no competent evidence of a causal connection between the claimed disabilities and military service or any incident therein, to include any exposure to herbicide agents. CONCLUSION OF LAW Diabetes mellitus and prostate were not incurred in or aggravated by active duty, may not be so presumed, nor may the claimed disabilities be presumed to have been incurred as a result of herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in April 2008 (diabetes mellitus) and December 2009 (prostate cancer). See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All service treatment records (STRs) and VA medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran testified before the undersigned at a hearing at the RO in July 2012. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the Board concludes that an examination is not needed because there is no probative evidence establishing an in-service event, injury or disease which would support incurrence of a disability in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Concerning the July 2012 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, while the undersigned VLJ did not discuss the bases of the prior RO determinations, he asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claims. Accordingly, the Veteran is not shown to be prejudiced on this basis. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and diabetes mellitus or a malignant tumor is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at section 3.309(e) shall be presumed to have been exposed during such service to a 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)(6)(iii) (2012). Diabetes mellitus type II and prostate cancer are among the diseases listed in 38 C.F.R. § 3.309(e). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The recent Federal Circuit decision, Haas v. Peake, 525 F.3rd 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009), held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to the presumption of herbicide exposure and service connection constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). The applicable criteria provide that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than ones listed in 38 C.F.R. § 3.309(a), however, will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 2002); 38 C.F.R. § 3.307(a) (2012). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background & Analysis The Veteran contends that service connection should be established for diabetes mellitus and prostate cancer based on exposure to herbicides in service. The Veteran does not allege that he served in the Republic of Vietnam, but that he was nonetheless, exposed to herbicides while serving aboard the USS Kitty Hawk in the waters off the coast of Vietnam. The Veteran testified that he believed that he could have been exposed to herbicides when his ship sailed in close proximity to the coastline, when they converted salt water to drinking water through the evaporators or from monsoons and the general weather conditions that could have carried the herbicides sprayed on land off shore. With respect to the Veteran's contention that, due to his close proximity to the Vietnam coast, he was exposed to Agent Orange through the air or through the ship's drinking water, he is, in essence, attempting to expand the statutory presumption of herbicide exposure to waters offshore Vietnam. This matter has been finally settled by Haas. Indeed, in upholding VA's requirement that a veteran must have been present within the land borders of Vietnam, the Federal Circuit essentially reaffirmed the VA's discretion to maintain a "bright line" rule against those claiming presumptive exposure to herbicides via runoff into the sea or spray drift in the air off the coast. Accordingly, the Board rejects the Veteran's argument that alleged exposure to herbicides via wind or sea water off the coast of Vietnam should be presumed. In a related matter, the Board notes VA's Compensation and Pension Service has identified a number of "blue water" Navy vessels that conducted operations on the inland "brown water" rivers and delta areas of Vietnam and certain other vessel types that operated primarily or exclusively on the inland waterways, which are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309. However, the USS Kitty Hawk is not one of the vessels recognized as having conducted "brown water" operations in Vietnam. Given the nature of its mission, its size and draft, and the absence of any indication in the ship's deck logs that it conducted brown water operations, there is no reason to believe that the Kitty Hawk would have operated in the rivers, delta areas, or inland waterways of Vietnam. Thus, consideration of exposure under the theory that his ship operated in close proximity to the shoreline, and therefore should be recognized as a "brown water" vessel, is not appropriate to the facts in this case. The presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 are specifically limited to those individuals who were actually physically present in the boundaries of the Republic of Vietnam at some point during service. In this case, the Veteran does not claim nor do the records demonstrate that he physically visited or had duty in the Republic of Vietnam. Because the Veteran does not meet the criteria of having "service in the Republic of Vietnam" for purposes of 38 C.F.R. § 3.307(a)(6)(iii), his claim must fail on the basis of the presumptive regulations. Notwithstanding the foregoing presumption provisions, the 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 Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In this regard, the Veteran does not claim to have had any problems or pertinent abnormalities referable to the disabilities at issue on appeal during service. Likewise, the service treatment records are completely silent for any treatment, abnormalities or diagnosis referable to diabetes or any prostate problems. Private medical records showed that the Veteran had an elevated PSA level and was glucose intolerant in September 2003, and was encouraged to lose weight, exercise and watch his diet to decrease his risk of developing diabetes mellitus down the road. A private treatment note, dated in October 2005, showed that the Veteran reported that he had a negative prostate biopsy two years earlier and that a repeat PSA level a year ago was normal. A VA treatment note, dated in October 2009 showed that a prostate biopsy in September 2009 was positive for prostate cancer in 5 percent of the right base and 10 percent of the right apex. The report also indicated that the Veteran had type II diabetes mellitus. Under the circumstances, the Board finds that the Veteran's belief that his diabetes mellitus and prostate cancer are related to herbicide exposure in service is of limited probative value. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); see also, Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). Accordingly, the Board finds that the Veteran's opinion is of no probative value and declines to assign it any evidentiary weight. The Board commends the Veteran for his service, but as there is no credible medical evidence of record suggesting a connection between any claimed in-service exposure to herbicides and his type II diabetes or prostate cancer, and no evidence of any manifestations or symptoms attributable to any such disorder until some 35 years or more after his release from active service, the Board finds no basis for a favorable disposition of his appeal. Accordingly, the appeal is denied. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for diabetes mellitus is denied. Service connection for prostate cancer is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs