Citation Nr: 1309540 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-22 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for prostate cancer, to include as secondary to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1973, September 1990 to July 1991, and February 2003 to March 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of a April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled to appear at a Travel Board hearing in June 2012, but failed to appear. He did not offer a reason for his failure to appear, nor did he request that his hearing be rescheduled. As such, the Board deems his hearing request withdrawn. In addition to a paper claims file, the Veteran also has an electronic claims file known as a Virtual VA file. The Board has reviewed the relevant records in both the paper and electronic files prior to reaching this decision. FINDINGS OF FACT 1. Service personnel records do not show that the Veteran served in or visited the Republic of Vietnam; therefore, exposure to herbicides may not be presumed. 2. Prostate cancer was not manifest in service or within one year of separation, and is not attributable to service to include any claimed exposure to herbicides in service. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by service and cannot be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in January 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. 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. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran's claims file was forwarded to a VHA specialist to obtain an opinion as to his prostate cancer. The specialist considered the Veteran's complaints, the service treatment records, and post-service treatment records. Based on the foregoing, the examiner concluded that the Veteran's prostate cancer was not due to or aggravated by an event, disease, or injury incurred during active service. Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion provided is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). Service connection may be granted on a presumptive basis for certain chronic diseases, including malignant tumors, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2012), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Prostate cancer is listed under 38 C.F.R. § 3.309(e) as a disease associated with herbicide exposure. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2012). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. 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 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). "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) (2012). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. (2008), the Federal Circuit held that VA's interpretation of the phrase "served in the Republic of Vietnam," to the effect that a veteran must set foot on Vietnamese soil, was entitled to deference by the courts. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran essentially contends that he currently has prostate cancer either directly related to service, or due to exposure to herbicide agents during service. Specifically, he contends that he served on a "classified mission" for 6 months in Republic of Vietnam in 1972. The Veteran's MOS during his first period of service was Military Policeman. Initially, the Board observes that the Veteran is competent to report visitation to the Republic of Vietnam. However, he did not provide any verifiable details of his alleged visitation to Vietnam, and requests to the National Personnel Records Center (NPRC) showed no evidence to substantiate the Veteran's service in the Republic of Vietnam. The Board notes that when he filed his claim, the Veteran reported serving in country in Vietnam, but indicated that he was part of a classified mission in Vietnam. He further asserted that any records that would show his service in Vietnam were destroyed in the 1973 fire at the records center in St. Louis, and all of his personal documents/pictures showing the claimed service were destroyed in a house fire in 1997. With respect to the Veteran's assertion that his service records were destroyed in a fire while housed at the NPRC, the Board observes that copies of the Veteran's service treatment records are currently associated with the claims folder. The Board observes that the Veteran remained on active duty through December 1973; however, the fire occurred at the NPRC on July 12, 1973 several months prior to his release from active duty. Treatment records from his first period of service which predate the fire are currently of record. The fact that the Veteran was on active duty at the time of the fire and treatment record that predate the fire are currently of record strongly suggest that his service records were not affected by the fire. With respect to the Veteran's contention that he served in Vietnam during active service, a review of his DD Form 214 from his first period of service (December 1971 to December 1973) specifically shows "VN service: No." In addition, his service personnel records are also devoid of any notations of service in Vietnam. In April 2006, the Veteran was afforded VA examination for his claimed posttraumatic stress disorder (PTSD), but did not report any service in Vietnam. It appears that he first mentioned serving in Vietnam in a September 2006 statement. Upon review of the evidence of record, the Board finds that his assertions are not credible and not supported by contemporaneous service records. As a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The record includes the Veteran's Form DD 214 and his personnel file is silent as to any missions or stops in Vietnam. Again, a 2008 request from the NPRC revealed no evidence to substantiate the Veteran's alleged service in Vietnam, and the Board's review of the service personnel records shows similar findings. Therefore, the Board finds that there is no credible evidence that the Veteran served in Vietnam to warrant presumptive service connection for prostate cancer based on herbicide exposure therein. See 38 C.F.R. § 3.309(e) (2012). Although the Veteran has not been shown to warrant a regulatory presumption of service connection for his claimed disabilities as a result of in-service herbicide exposure, his claim must still be reviewed to determine if service connection can be established on a direct basis or based on applicable presumptions established for chronic disease under 38 C.F.R. § 3.309(a). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). With this in mind, the Board observes that, to the extent that the Veteran has asserted that he was exposed to Agent Orange, such contentions are not supported by his service records. Accordingly, his statements regarding in-service exposure to herbicides have no probative value. As a result, the Board will review the Veteran's claims to determine whether service connection may be awarded based on direct service connection. In this case, there is no question that the Veteran has a history of prostate cancer. Indeed, he was diagnosed as having prostate cancer in 2007. A review of the Veteran's STRs shows no diagnosis of a chronic prostate-related disability. He had normal digital rectal examinations (for National Guard purposes) in February 2002 and April 2002. A November 2003 report of medical examination noted normal digital rectal and prostate examinations. Stool Guiac/Hemoccult testing was positive. He was noted to have a history of elevated PSA. In December 2003, however, his PSA levels were high, and the treating professional discussed PSA and the risk of prostate cancer. The Veteran declined a prostate needle biopsy at that time. On repeat PSA testing a few days later, the Veteran's PSA was normal. The treating professional indicated that if his PSA remains normal, then no further evaluation is needed. The Veteran was discharged from active duty in March 2004. In October 2004, the Veteran was noted to have benign prostatic hypertrophy (BPH). In July 2007, the Veteran was diagnosed as having adenocarcinoma of the prostate and was subsequently treating with radiation. The Veteran was afforded a VA genitourinary examination in March 2011, at which time his history of prostate cancer was confirmed. No opinion regarding the etiology of his prostate cancer was provided. The Veteran has also undergone private treatment for his genitourinary complaints, but these records do not reflect any notations by treating professionals that the Veteran's prostate cancer is attributable to his periods of active duty. In October 2012, the Board requested that the claims file be transferred to a urologist for a specialist's opinion regarding the Veteran's prostate cancer. The urologist was specifically asked to reconcile the high PSA readings during the Veteran's final period of active duty and his current prostate cancer. In November 2012, the VHA report was submitted and the VA urologist indicated that he reviewed the Veteran's records prior to reaching his opinion. The urologist described the general significance of elevated PSA levels, which could be caused by BPH, prostatitis, or prostate cancer. He noted that the Veteran's elevated PSA levels coincided with what was thought to be a urinary tract infection, prostatitis, or undetermined causes. Noted was that military treating personnel offered the Veteran to have a prostate biopsy at that time, and he declined. Subsequently, his PSA levels then dropped (in December 2003) to a normal level. The urologist indicated that the Veteran did not have any indication for a transrectal ultrasonography biopsy during service, and was diagnosed as having prostate cancer over 3 years following discharge from active duty. The specialist noted that during active service there was no clinical suspicion for active prostate cancer. For the reasons stated above, the urologist opined that the Veteran's prostate cancer did not have its onset during service, nor is it related to his active duty service. The Board finds the VHA report to be highly probative evidence, as it is based on a thorough review of the Veteran's medical records and cites to relevant medical principles. The opinions are also consistent with the other evidence of record and are supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). The Veteran has submitted no competent medical nexus evidence contrary to the November 2012 VHA opinion. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claims; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Indeed, there is no medical evidence of record showing that the Veteran's prostate cancer was incurred in or aggravated by his military service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, in this case, assertions as to whether the Veteran's claimed prostate cancer is related to service are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render medical opinions regarding the etiology of his prostate cancer. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Although the Veteran is competent to report what he observed and he experienced during service, he is not competent to ascertain the etiology of his current disability, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more weight and credence to the November 2012 VA specialist's opinion which was rendered by a licensed urologist rather than a lay person, and the urologist's opinion was based on medical principles that were set forth in his report. To the extent that the Veteran may be contending a continuity of symptoms since service, the Board observes that such a finding is not supported by the record and therefore not credible. In this regard, the examination report at service discharge is pertinently negative for any findings related to a prostate disability, including prostate cancer. Furthermore, there is a three year period of time during which the Veteran did not complain of any of these disabilities. The first post-service evidence of any complaint, treatment, or diagnosis of a chronic prostate disability was not until 2007, 3 years after his discharge from active duty. Supporting medical evidence is required to establish service connection based on a continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (finding that there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Therefore, to the extent that the Veteran may assert that he has had his disabilities since service, those statements are not credible. In sum, the evidence of record does not show that the Veteran's prostate cancer was incurred in or related to his active duty military service, nor was it shown within his first post-service year or presumed to be related to in-service exposure to herbicides. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for prostate cancer is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs