Citation Nr: 1319359 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-49 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to herbicides or environmental hazards exposure. 2. Entitlement to service connection for diabetes mellitus, type II (DM), to include as due to herbicides or environmental hazards exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1962 to June 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the case was subsequently transferred to the RO in Atlanta, Georgia. 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 did not serve in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and he was not exposed to herbicides while serving on active duty. 2. Prostate cancer was not present within one year of the Veteran's separation from active service and is not etiologically related to the Veteran's active service. 3. DM was not present within one year of the Veteran's separation from active service and is not etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. DM was not incurred in or aggravated by active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in December 2008, before the initial adjudication of the claim, advising him of the elements required to establish entitlement to service connection, of the respective duties of VA and the claimant in obtaining evidence, and appropriate notice with respect to the disability-rating and effective-date elements of the claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file. VA treatment records are on file. The Veteran has not identified additional outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Veteran was not afforded a VA examination in response to his claim, nor was a VA medical opinion obtained in response to his claim. In this regard, the Board notes that neither medical examinations nor medical opinions are required if the appellant has not presented a prima facie case for the benefit claimed. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c) (4). See also Wells v. Principi, 326 F.3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). In this case, the Veteran has not established a prima facie case of entitlement to service connection for prostate cancer or DM. Therefore, the medical evidence of record is sufficient to decide the claim, and no medical examination or medical opinion is required. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. 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). Where a Veteran served 90 days or more during a period of war and diabetes mellitus becomes manifest to a degree of 10 percent or more within one year of termination of 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. 38 U.S.C.A. §§ 1101, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309(a). A Veteran who, during active military, naval, or air service served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish the Veteran was not exposed to an herbicide agent during such service. The last date on which the veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore or 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). If a Veteran was exposed to an herbicide agent during active service and manifests prostate cancer or diabetes mellitus to a compensable degree any time after such service, the disabilities will be service connected even though there is no record of such disease during service, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. §§ 3.307(a) (6) (ii), 3.309(e). 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. Analysis The Veteran asserts that his current diagnoses of prostate cancer and DM are the result of his active duty service, to include exposure to herbicides, lead paint, asbestos, and other chemicals while serving aboard three different vessels in the military, one of which was stationed in the waters off the coast of Vietnam. A review of the Veteran's SPRs shows that he was assigned to the USS Lorain County, USS General Daniel I, and USS Henrico. His military occupational specialty (MOS) was Field Radar Operator. The Veteran does not assert that he stepped foot in Vietnam. There is no evidence that the Veteran actually left any ship to be on the landmass of Vietnam, and SPRs are negative for any indication that the Veteran was exposed to herbicides, to specifically include Agent Orange, while on active duty. Additionally, the Board notes that the Veteran was not awarded any medals indicating service in Vietnam. Therefore, there is no evidence to suggest, nor has the Veteran definitely asserted, that he ever set foot in the Republic of Vietnam during his foreign service, or was otherwise exposed to herbicides in service. Accordingly, the Board concludes that service connection on the basis of exposure to herbicides in service is not in order. After careful consideration, the Board also finds that service connection is not warranted for prostate cancer or DM on any other basis. The Veteran's STRs are negative for any evidence of prostate cancer or DM. There was nothing on the Veteran's separation examination report in May 1966 indicating that he had prostate cancer or DM at the time of his separation from active service. Additionally, there was no notation made that he was ever exposed to herbicides, lead paint, asbestos, and other chemicals while on active duty. A review of the Veteran's VA treatment records on file shows that the Veteran has a current diagnosis of prostate cancer, to include status post prostatectomy, and DM. Despite the fact that the Veteran is currently receiving treatment for DM, there is no competent evidence which relates this disability to his active service. Additionally, there is no formal diagnosis of prostate cancer or DM of record until many years after the Veteran's separation from active duty. To this point, in his initial claim for service connection, the Veteran indicated that these disabilities began in 2002 or 2003, over 30 years after service. There is no medical or other corroborating evidence that the Veteran had prostate cancer or DM while he was on active duty or within one year of his separation from active service. Moreover, while the Board finds the Veteran to be sincere in his belief that his prostate cancer and DM are a result of his active service, to include as due to exposure to herbicides, asbestos, or other environmental hazards, there is no competent evidence of a nexus between the Veteran's prostate cancer or DM and his active service. In essence, the evidence of a nexus between the Veteran's prostate cancer and DM and his active service is limited to the Veteran's own statements. This is not competent evidence of the alleged nexus because the Veteran, as a layperson, is not competent to render an opinion concerning medical causation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Grover v. West, 12 Vet. App. 109, 112 (1999). Accordingly, the Board must conclude that the preponderance of the evidence is against these claims. ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs