Citation Nr: 1320284	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  12-33 157	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for prostate cancer, to include as due to in-service exposure to herbicides.

3.  Entitlement to service connection for diabetes mellitus, to include as due to in-service exposure to herbicides. 


REPRESENTATION

Appellant represented by:	Nevada Office of Veterans' Services


WITNESSES AT HEARING ON APPEAL

Appellant and son


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran had active service from January 1954 to March 1974. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Reno, Nevada, that, in part, denied service connection for bilateral hearing loss and for prostate cancer and diabetes mellitus, to include as due to in-service exposure to herbicides. 

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

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.  A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested to a compensable degree in the first post service year; and, the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to his service, or to any event or injury therein. 

2. The Veteran is currently diagnosed with prostate cancer.

3. The Veteran is currently diagnosed with diabetes mellitus.

3. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides while serving in Thailand from October 1967 to July 1968.

3. The evidence does not show that the Veteran set foot in the Republic of Vietnam during his period of service.

4.  The Veteran's prostate cancer and/or diabetes mellitus cannot be presumed to be due to exposure to herbicides in service, is not otherwise related to his service, and indeed was not manifested until many years after his active service.


CONCLUSIONS OF LAW

1.  The criteria for an award of service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.385 (2012). 

2.  The criteria for an award of service connection for prostate cancer have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

3.  The criteria for an award of service connection for diabetes mellitus have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The notice requirements were met in this case by letter sent to the Veteran in September 2010.  The letter advised the Veteran of the information necessary to substantiate his claims, and of his and VA's respective obligations for obtaining specified different types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  The letter also advised the Veteran of how disability ratings and effective dates are determined.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  That was done in this case in the letter sent to the Veteran.  The content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices.

The Board concludes that VA's duty to assist has been satisfied.  The Board further finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Indeed, during the course of the appeal, the RO has requested that the Veteran identify any outstanding records, VA or private, and there is no suggestion there are additional records that need to be obtained, which are obtainable.

Additionally, there is a duty to provide a VA examination for a medical nexus opinion concerning etiology when the record lacks evidence needed to decide the Veteran's claim but there is evidence of: (1) a current disability (including persistent or recurrent symptoms of disability), (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (I); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A (d) (2), the law requires competent evidence of disability or persistent or recurrent symptoms of disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274  (Fed. Cir. 2010).

Here, VA examination was provided in January 2011 with respect to the Veteran's bilateral hearing loss.  In this regard, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination and opinion obtained in this case is more than adequate, as it is predicated on a full reading of the medical records in the Veteran's claims file.  It considered all of the pertinent evidence of record, and the statements of the Veteran and others and provides a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2012).

The Veteran was not afforded a VA examination regarding his claims of service connection for prostate cancer or diabetes mellitus and no medical opinion has otherwise been obtained.  However, as discussed below, there is no competent evidence showing that he was exposed to herbicides during active service and there is no contention concerning a continuity of prostate cancer or for diabetes mellitus symptomatology from service to his medical diagnoses of prostate cancer and/or diabetes mellitus approximately in 2009, 36 years later.  As the evidence does not indicate that the claimed diseases may be related to service, an examination is not necessary.  See McLendon, 20 Vet. App. at 83.

Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim[s]." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Thus, the Board finds that the duty to assist the Veteran with his claims has also been met. 38 U.S.C.A. § 5103A.

Further regarding the duty to assist, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issues on appeal during the hearing.  Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor has either identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  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).

Law and Regulations

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  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 claims. 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).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  Moreover, the provisions of 38 C.F.R. § 3.303(b) apply only to chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the showing of 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection for certain chronic diseases, such as sensorineural hearing loss and diabetes mellitus, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).  In fact, a claimant may establish direct service connection for a hearing disability which initially manifests itself several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.  Hensley v. Brown, 5 Vet. App. 155, 164 (1993).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181   (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

a.  Bilateral hearing loss

The Veteran asserts that he has a bilateral hearing loss disorder due to exposure to acoustic trauma during his period of active service.  The Veteran served in the Air Force as a defensive fire control systems mechanic.  He alleges his bilateral hearing loss was caused by loud noises from aircraft while working on the flight line.  

Service treatment records include an April 1958 complaint of difficulty hearing which lasted for a few seconds only.  An audiogram revealed normal hearing.

Several audiological evaluations were performed during service as follows;

March 1960 initial flight examination pure tone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
10
-
-
LEFT
10
10
5
-
-

February 1961 annual examination report pure tone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
-10
-10
-10
LEFT
0
0
0
-10
-5
February 1962 annual examination report pure tone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
0
15
0
LEFT
5
-5
-5
0
5

November 1963 hearing conservation audiogram, was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

June 1968 periodic examination report pure tone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
20
10
25
30
LEFT
10
10
5
0
10

May 1970 periodic examination report pure tone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
20
15
30
30
LEFT
10
10
15
10
15

March 1971 hearing conservation audiogram report was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
5
15
15
LEFT
20
5
5
5
10

June 1972 MEB examination report pure tone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
0
5
0
LEFT
10
0
0
0
5

March 1973 hearing conservation audiogram report was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
10
5
20
25
LEFT
15
10
5
5
5

April 1973 retirement examination report pure tone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
10
10
LEFT
15
10
5
5
5

In a January 2011 VA examination the Veteran reported serving in the Air Force from 1954 to 1974.  He reported noise exposure as a fire control system technician and as a tail gunner.  He denied civilian noise exposure and recreational noise exposure.  He worked in auto painting, masonry, and in a bakery.  He denied head injuries; trauma; ear disease; chronic sinus problems or allergies.  

Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
75
65
55
65
65
LEFT
65
65
75
75
65

Average pure tone thresholds, in decibels (dB), were 62.5 dB for the right ear and 70 dB for the left ear.  Speech audiometry revealed 64 percent speech discrimination in the right ear and 72 percent in the left ear.  The diagnosis was moderately severe to profound sensorineural hearing loss, right ear and moderate to profound sensorineural hearing loss, left ear.  

The examiner noted that there would be significant effects on occupational activities due to hearing difficulties.  The Veteran also reported difficulty with activities of daily living as he could not hear his television and had difficulties with communicating with his family members.  The examiner noted that the Veteran's hearing loss was consistent with noise exposure and with presbycusis.  He noted that the service records did not include the service entrance examination.  The first examination was in April 1958 and revealed normal bilateral hearing.  Additionally, the retirement examination in April 1973 was also normal.  Therefore the Veteran's hearing loss was less likely as not caused by or as a result of military noise exposure.  

Analysis

Having carefully considered the claims in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against an award of service connection for a bilateral hearing loss disorder.

As noted above, the Veteran's service treatment records are extensive and are contained in the claims file.  He has reported acoustic trauma during service.  However there is no evidence of complaints or treatment for acoustic trauma during service.  Hearing examinations from April 1958 through the Veteran's retirement examination April 1973 reveal hearing within normal range.  The Board notes that on a few occasions, such as in June 1968 and May 1970, audiological examination the right ear appeared to have exhibited some clinical hearing loss per Hensley.  However, subsequent audiological examinations dated in March 1971, June 1972 and on separation in April 1973 revealed entirely normal hearing.  Thus, the preponderance of the evidence is against a finding of any clinically significant permanent decrease in auditory acuity during service.  At best, the objective findings suggest transitory decrease in hearing that resolved by the time of subsequent audiometric testing.

The Veteran testified that he was treated for hearing loss in 1977 (4 years after service).  The medical records associated with this treatment are not of record and have not been identified by the Veteran.  The Board notes that he filed his initial claim for service connection for hearing loss in September 1977.  This claim was not processed at that time by the RO, and this claim has remained open to the present time.  In that claim the Veteran noted that he had not been evaluated for any hearing loss condition.  Thus, his statements as to treatment are contradictory and thus are not credible.  Accordingly, they lack probative value.

The Veteran's allegation to the contrary, hearing loss has not been documented following service in 1973 until approximately May 2010, or 37 years after service.  

It is not until August 2010, when the Veteran filed a new claim of service connection for hearing loss, that the RO determined the claim had remained open since September 1977.  However, there have been no medical records identified by the Veteran in that time period relating to his bilateral hearing loss. 

The Veteran reported being exposed to noise from aircraft noise during service.  He reports working as a fire control systems mechanic on B52 aircraft on the flight line.  His service personnel records confirm that his military occupational specialty was as a fire control systems mechanic, which is consistent with his reported duties in service. 38 U.S.C.A. § 1154(a).  In this instance, the Board accepts the Veteran's account that he was exposed to acoustic trauma in service.  
However, to be entitled to service connection, the evidence must show that the current hearing loss is due to such in-service noise exposure.  In this case, the service treatment records are available and fail to show hearing loss during service; there also is no evidence of hearing loss for approximately 37 years after service.  In addition, competent evidence linking the claimed bilateral hearing loss to service is absent from the claims folder. 

Thus, in this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since service, can be considered as evidence against a claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Board recognizes the Veteran's contentions that he has had symptoms associated with his hearing loss since his period of active service.  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In this case, the Veteran's statements as to a history of symptomatology dating back to service are not deemed credible.   He did file a claim for hearing loss in September 1977, and thus it is reasonable to conclude that he was experiencing symptoms at that time.  However, given the absence of complaints at discharge, and the normal objective findings at that time, the preponderance of the evidence is against a finding that he was experiencing hearing loss all the way back to active duty.  Thus, while longstanding, there is no demonstration here of hearing loss symptoms being continuous since service.   

For the above reasons, the record fails to establish continuity of symptomatology, either by way of the clinical record or the Veteran's own statements.

Moreover, the medical evidence of record fails to link any current hearing loss disability to active service.  Rather, a VA examiner in January 2011 noted that the Veteran's hearing loss was consistent with both noise exposure and with presbycusis.  He noted an April 1958 hearing examination was within normal limits as was the April 1973 retirement examination.  Based on a review of the claims file and service medical records the examiner opined that hearing loss was less likely as not caused by or as a result of military noise exposure.  
The Board finds probative the opinions of the VA examiner concluding that she was unable to relate the Veteran's hearing loss to service based on the evidence of record.  The opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, service medical records, his lay statements, and supported by detailed rationale.  Accordingly, the VA examiner's opinion is found to carry significant weight.  Moreover, although the examiner did not expressly reference the occasional in-service audiometric results suggestive of a decrease in auditory acuity, this is deemed harmless error here, because, as previously explained, the totality of the evidence indicates that any decrease was transitory. 

Among the 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. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

The evidence of record also fails to show that the Veteran was diagnosed with bilateral hearing loss within one year following his separation from service.  As such, service connection based upon a legal presumption under 38 C.F.R. § 3.307 is not warranted.

Given the medical evidence against the claim, for the Board to conclude that the Veteran has a bilateral hearing loss disorder as a result of service would involve speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility.  38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993).

For the reasons and bases provided above, the evidence in this case weighs against the claims of service connection for a bilateral hearing loss disorder. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations.  See 38 U.S.C.A. §5107 (West 2002).

b.  Service connection for prostate cancer and diabetes mellitus as secondary to herbicide exposure.

Here, the Veteran contends that his prostate cancer and diabetes mellitus is related to exposure to herbicides in service.  Specifically, he has argued that he was exposed to herbicides while stationed in Thailand from October 1967 to July 1968.  

The Board notes that, 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, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease.  38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a) (6), 3.307(d) (1), 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. § 1116(f).

Diseases associated with such exposure include: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) Note 1; 75 Fed. Reg. 53,202 (August 31, 2010).  For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 75 Fed. Reg. 53,202 (August 31, 2010) (to be codified as Note 3 in 38 C.F.R. § 3.309(e)). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341 -346 (1994).  See also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996).  A list of specific conditions not having a positive association was recently published by the Secretary.  See Notice, 75 Fed. Reg. 81,332 (December 27, 2010).

For presumptive service connection to be warranted, the herbicide-related disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a) (6) (ii).  The last date on which such a 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 Vietnam era. "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). VA General Counsel  has determined that the regulatory definition of "service in the Republic of Vietnam" in 38 C.F.R. § 3.307(a) (6) (iii) , requires that an individual actually have been present within the boundaries of the Republic of Vietnam to be considered to have served there, through inclusion of the requirement for duty or visitation in the Republic of Vietnam. VAOPGCPREC 27-97. 

In the present case, the Veteran's service personnel records show that he served in Thailand during the Vietnam War.  He had no demonstrated service in Vietnam, nor did he otherwise claim.  

As there is no probative evidence that demonstrates the Veteran was actually in Vietnam, he is not entitled to the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a) (6) (iii). Therefore, although VA has recognized a relationship between prostate cancer and diabetes mellitus and exposure to herbicides, the preponderance of the evidence is against finding that service connection under the presumption of exposure to herbicides while serving in the Republic of Vietnam is warranted for his currently diagnosed prostate cancer and diabetes mellitus.

Consequently, in order to be entitled to presumptive service connection for his prostate cancer and diabetes mellitus as related to herbicide exposure, the Veteran must establish actual exposure to herbicides while serving in Thailand.  The Veteran testified at his March 2013 Board hearing that he was stationed from 1967 to 1968 at the Korat Airfield.  Although his primary duties as a fire systems mechanic took place in the central part of the air field, he was a senior member of his unit and was responsible for going to the towers in the defoliated areas of the airfield.  It was noted that "this was very occasional but it did put him in the proximity at one point or the other of the defoliated area."  He also stated that he encountered blowing trash that would be blown back on the airfield.  In addition the Veteran noted that he took smoke breaks behind the blast areas away from the fuel and out in the dirt.  He alleged that these were defoliated areas.

VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases.  This allows for presumptive service connection of the diseases associated with herbicide exposure. 

The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. 

Pertinent provisions of the VA Adjudication Manual set forth procedures that VA must follow to verify reported herbicide exposure in Thailand.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n), (p), and (q).  Specifically, the M21-1MR provides that several items of development should be performed, including considering the Memorandum on "Herbicide Use in Thailand during the Vietnam Era;" notifying the Veteran appropriately concerning Thailand herbicide exposure; and if necessary, requesting verification of herbicide exposure from the United States Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides.  See id; see also VBA Fast Letter 09-20, "Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era" (May 6, 2009). 

The Veteran was notified appropriately concerning Thailand herbicide exposure, and his communications after that notification demonstrate that he understood what evidence he needed to substantiate his claim of exposure in Thailand.  His  service personnel records are associated with the claims file.  Moreover, the JSRRC was contacted and asked to conduct a search to confirm the Veteran's assignment to Korat Air Force Base and any duties that placed him on the perimeter of the air base.  It responded that there was no evidence to substantiate the Veteran's claim of exposure to Agent Orange in Thailand.  All procedures to obtain information from the Veteran had been properly followed, and all efforts to obtain needed information had been exhausted.  Such development was unable to document or otherwise verify that the Veteran was exposed to Agent Orange or other tactical herbicides at Korat Air Force Base, Thailand, or that his duties required him to be on or near the perimeter of the base.  Consequently, the Board finds that all development necessary to the claim has been conducted. 

The Veteran served in Thailand from October 1967 to July 1968.  His service treatment records show no complaints, diagnoses, or treatment of prostate cancer or diabetes during his service.  At his separation examination in April 1973, he neither reported a history of any prostate cancer or diabetes nor was prostate cancer or diabetes found on examination.

Post-service medical evidence does not show precisely when the Veteran was diagnosed to have prostate cancer or diabetes.  However, on a VA new patient interview in September 2010, it was noted that the Veteran was diagnosed with prostate cancer the previous year.  It also noted that he had been diagnosed with diabetes mellitus.  A private medical summary dated January 2010 also noted diabetes mellitus.  

The VA Compensation and Pension Service (Service) has reviewed a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense (DoD), as well as other relevant documents. The Service explained in a Memorandum for the Record that the DoD list indicates only that limited testing of tactical herbicides was conducted in Thailand from April 2nd through September 8th of 1964 at the Pranburi Military Reservation near Pranburi, Thailand.  The Report of these tests noted that five civilian and five military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research.  This location was not near any U.S. military installation or Royal Thai Air Force Base. The Service also concluded that tactical herbicides, such as Agent Orange (as distinct from commercial herbicides), were used and stored in Vietnam, not Thailand. 

Furthermore, there are no records of tactical herbicide spraying by Operation RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. The Service determined that there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from August 30th through September 16th of 1963 and from October 14th through 17th of 1966.  The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes." The Service determined that these facts are not sufficient to establish tactical herbicide exposure for any veteran based solely on service in Thailand. 

Finally, while the Thailand CHECO Report did not report the use of tactical herbicides on allied bases in Thailand, it did indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters.  Therefore, if a veteran's MOS or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides.  Security police units were known to have walked the perimeters, especially dog handlers. The Service stated that such information should be considered in evaluating a veteran's claim. 

The Board finds that the Veteran is competent to report what he did and observed while serving in Thailand.  He is also competent to report that he was exposed to some type of chemical during such service.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a) (2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but 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.).  He is not, however, competent to report that he was exposed to tactical herbicides such as Agent Orange during his service in Thailand.  In fact, the Veteran acknowledges that he does not know for certain that he was exposed to Agent Orange or other tactical herbicides. 

The Veteran is competent to testify that his work in Thailand required him to occasionally perform duties which took him to the perimeter of the airfield or to various other defoliated areas around the airfield.  However, the JSRRC was unable to verify that his duties required him to be on or near the perimeter of any military base in Thailand.  Consequently, there is no credible evidence to corroborate the Veteran's report of having been on or near the perimeter of any Thailand military base.  His own statements, to the extent that they are at odds with his official duties, are deemed insufficient to substantiate this aspect of the claim.  Again, there is no other evidence, such as statements from other servicemembers, tending to corroborate his contentions.  The absence of such corroboration, coupled with the negative response from the JSRRC leads the Board to find against the claim.

The Board further finds that the information in the Memorandum is more probative than the assertions contained in the Veteran's statements and testimony.  The basis for the Board's findings is that the Service obtained its information from DoD, which has more comprehensive and accurate official records regarding its own use of herbicides and defoliants than do authors and organizations providing conflicting accounts.  See, e.g., Soria v. Brown, 118 F.3d 747, 748 (Fed.Cir.1997); Duro v. Derwinski, 2 Vet. App. 530 (1992) (the service department's decisions on matters within its provenance are conclusive and binding on VA). 

Consequently, as the evidence fails to demonstrate that the Veteran had actual exposure to herbicides while serving in Thailand, entitlement to service connection for his prostate cancer and/or diabetes mellitus is not warranted based upon the presumption in 38 C.F.R. §§ 3.307 and 3.309(e) it is related to herbicides. 

Furthermore, the evidence fails to demonstrate any direct link between the Veteran's military service and his prostate cancer and/or diabetes mellitus.  His service treatment records are silent with regard to any prostate cancer and/or diabetes mellitus or symptoms related thereto.  Furthermore, available post-service evidence shows that he was not diagnosed with prostate cancer and/or diabetes mellitus until approximately 2009, 36 years after his discharge from service.  Consequently, the absence of any evidence of prostate cancer and/or diabetes mellitus in service or for many years after service speaks against finding that service connection is warranted.  See Maxson v. West, 12 Vet. App. 453   (1999), aff'd, 230 F.3d 1330 (Fed.Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); see also McManaway v. West, 13 Vet. App. 60, 66-67 (1999).  

Finally, the Veteran is not entitled to presumptive service connection based on the finding of a chronic disease because the evidence of record shows that the Veteran's prostate cancer and/or diabetes mellitus did not manifest to a compensable degree within one year after his discharge from service in 1973.  38 C.F.R. §§ 3.307(a) and 3.309(a). 

For the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that service connection for prostate cancer and/or diabetes mellitus is warranted.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).  As such, the Veteran's claims are denied.  The Board acknowledges the sincerity of the Veteran's belief that his prostate cancer and/or diabetes mellitus is related to his service.  If additional information which differs from the information currently known is presented-to include, for example, medical studies disclosing a link between such duties as the Veteran had in Thailand and later development of prostate cancer and/or diabetes mellitus, the Veteran is invited to again submit his claims, but the current state of medical knowledge and known use of herbicides does not support a grant of service connection, or place the evidence in equipoise, at this time. 

 


ORDER

Service connection for a bilateral hearing loss is denied.

Service connection for prostate cancer, to include as due to in-service exposure to  herbicides, is denied.

Service connection for diabetes mellitus, to include as due to in-service exposure to herbicides, is denied.




___________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs