Citation Nr: 1323877 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 12-20 788A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to February 1979. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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 have service in the Republic of Vietnam. 2. The Veteran's duties at U-Tapao air base did not place him on or near the perimeter of the base. 3. The Veteran does not have prostate cancer as a result of his service. CONCLUSION OF LAW Prostate cancer was not incurred as a result of the Veteran's service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran asserts that he has prostate cancer as a result of his service, specifically, as a result of exposure to Agent Orange. He asserts that he was exposed to Agent Orange during three periods of duty at U-Tapao airbase in Thailand. In particular, he asserts that the areas around the tents that were used as living quarters during his first two periods of duty were sprayed with defoliants. He further states that he flew over the base perimeter as a pilot, and that during his third period of duty he was tasked with monitoring all areas of base activities, to include guard posts, which were sprayed with defoliants (he concedes he does not know if Agent Orange- as opposed to some other defoliant- was used). He states that he was stationed in Thailand between November 1966 and January 1967, between January 1969 and March 1969, and between September 1970 and August 1971. Finally, he asserts that in April 1971, he remained overnight at Tan Son Nhut airbase in Vietnam while awaiting a flight for Hawaii. See e.g., Veteran's letters, dated or received in May and December of 2011. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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. 38 C.F.R. § 3.303(d). Service connection may also be granted for malignant tumors, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. The law provides a presumption of service connection for certain diseases, including prostate cancer, which become manifest after separation from service in veterans who served in the Republic of Vietnam during the period from January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e), see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service in the Republic of Vietnam for the purpose of the application of the presumption 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). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld VA's interpretation of § 3.307(a)(6)(iii) to require a servicemember's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. VA has extend the presumption of exposure to Agent Orange and the presumption of service connection for prostate cancer to a Vietnam-era veteran, who served in Thailand at certain designated bases, to include U-Tapao, and whose duties placed him or her on or near the perimeter of the base, where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10. q. The Veteran's service reports show that he was at U-Tapao airbase with the following duties, during the following times: wing flying safety officer, between September 1970 and May 1971, and a "Wing, ch Safety Off," between May and August of 1971. The reports also indicate that the Veteran had flying missions over Vietnam between November 1966 and January 1967. Evaluation reports (AF Forms 77a and 707) dated during the time periods that the Veteran states that he served at U-Tapao, i.e., specified months during 1966-1971, indicate duties as an aircraft commander/pilot, instructor, and safety indoctrination training. The Veteran's discharge (DD Form 214) shows that his MOS was "X01435C Air Operations Officer, Pilot, KC-135, Safety." His secondary MOS was "1061C - Pilot, Tanker, KC-135." His awards include the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. The Veteran's service treatment reports do not show treatment for, or a diagnosis of, prostate cancer. The Veteran's separation examination report, dated in December 1978, shows that his G-U (genitourinary) system was clinically evaluated as normal. The relevant post-service medical evidence consists of VA and non-VA reports, dated between 2003 and 2009. This evidence shows treatment for prostate cancer beginning in 2003. In a report, dated in May 2011, the National Personnel Records Center (NPRC) stated that there were no records of the Veteran's exposure to herbicides. In a memorandum, dated in August 2011, the U.S. Army and Joint Services Records Research Center (JSRRC) stated that the information required to corroborate exposure to Agent Orange as described by the Veteran is insufficient to send to the U.S. Army and Joint Services Records Research Center and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The JSRRC detailed its efforts to verify the Veteran's claimed exposure to Agent Orange, and stated that all efforts to obtain the needed information have been exhausted and that further attempts are futile. In a memorandum, dated in July 2012, the JSRRC stated that they had determined that the information required to corroborate in-country Vietnam service or exposure in Thailand described by the Veteran is Veteran is insufficient to send to the U.S. Army and Joint Services Records Research Center and/or insufficient to allow for meaningful research of Marine Corps or NARA records. The JSRRC detailed its efforts to verify the Veteran's claimed exposure to Agent Orange, to include his claim of duty/visitation in Vietnam, and stated that all efforts to obtain the needed information have been exhausted and that further attempts are futile. In both memorandums, the JSRRC determined: There is no evidence in service treatment record or personnel record of in-country service in Vietnam. The PIES (Personnel Information Exchange System) 036 is negative for exposure to Agent Orange. The Veteran claims exposure while stationed in Thailand. The presumption of exposure to Agent Orange is given to service members in Thailand whose MOS (military occupation specialty) is one that regularly put them in contact with the base perimeter such as security police, or dog handlers. The Veteran's MOS was pilot. There is no presumption of secondary exposure based on being near or working on aircraft that flew over Vietnam. The Veteran claims exposure while TDY (temporary duty) in Ton Son Nhut. There are no TDY orders of record showing visitation to Ton Son Nhut. Therefore, there is insufficient evidence of record to corroborate exposure to Agent Orange in Thailand. As an initial matter, the Board finds that service in Vietnam is not shown. Although the Board has considered the Veteran's statements, for the reasons discussed infra, they are afforded reduced probative value. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). At the time that the Veteran filed his claim in March 2011, he confined his arguments to exposure during service in Thailand. In May 2001, he was notified of the criteria for exposure to Agent Orange. See duty-to-assist letters (two), dated in May 6th and 9th of 2011. His first assertion of visitation in Vietnam (for an overnight stay while enroute to Hawaii) was received about seven months after he filed his claim, in December 2011. See Veteran's statement (VA Form 21-4138), received in December 2011 (dated in May 2011); Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). The Veteran is attempting to recall an event from a single day over 40 years ago, and there is nothing in his service records to show that he was ever in Vietnam. In this regard, on two occasions, VA has attempted to verify service/visitation in Vietnam with the JSRRC, and in May 2012, the RO specifically requested the Veteran's records, "to include TDY (temporary duty) orders, performance evaluations, and any other evidence of temporary duty/visitation to Vietnam." See May 2012 duty to assist request. However, in each case, the JSRRC has stated that it could not verify service in Vietnam. In summary, service in Vietnam is not shown by the Veteran's service records, or any other objective evidence, and participation in flights over Vietnamese airspace is insufficient to show exposure to Agent Orange. Hass. Finally, to the extent that the Veteran received the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal, the criteria for receipt of these awards did not require duty or visitation in the Republic of Vietnam. See Department of Defense Manual of Military Decorations & Awards, DoD 1348.33-M, C6.5 at 48 (September 2006). Accordingly, the Veteran's assertions have been afforded reduced probative value, and when they are weighed together with the other evidence of record, the Board finds that the Veteran is not shown to have service involving duty or visitation in the Republic of Vietnam. See VAOPGCPREC 27-97, 62 Fed. Reg. 63604 (1997). With regard to the Veteran's claim of exposure to Agent Orange while at U-Tapao airbase in Thailand, the Board finds that the evidence is insufficient to establish exposure to Agent Orange. The Veteran's service records indicate that his primary duty was as a pilot, and they indicate that he had other training and safety instruction duties. His evaluation reports do not mention U-Tapao by name, let alone indicate that his duties placed him on or near the perimeter of the base. To the extent that he flew over the perimeter, this is insufficient to show such exposure, as the Veteran was clearly not in physical contact with the perimeter, nor was he in sufficiently close and unprotected proximity to it. See Haas. On two separate occasions, the JSRRC has attempted to verify the claimed duties near the U-Tapao base perimeter, and exposure to Agent Orange. However, in each case, the JSRRC was unable to do so. The NRPC was also unable to verify exposure to Agent Orange. In summary, the Veteran is not shown to have had duties that placed him on or near the perimeter of the U-Tapao air base, or to have been exposed to Agent Orange, and exposure to Agent Orange is not shown. Therefore, service connection for a disability based on exposure to Agent Orange is foreclosed as a matter of law, and the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). With regard to the possibility of a grant of the claim on a basis other than exposure to Agent Orange, prostate cancer is not shown during service, nor is there any evidence to show that prostate cancer was manifested to a compensable degree within one year of separation from service. Prostate cancer is not shown until 2003, which is about 23 years after separation from service, and there is no competent evidence to show that prostate cancer is related to the Veteran's service. Accordingly, service connection is not warranted on this basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. To the extent the Veteran asserts that he has prostate cancer due to his service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether or not the Veteran has prostate cancer that is related to service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran's service treatment reports and post-service medical records have been discussed. There is no competent opinion of record in support of the claim, and the Board has determined that exposure to Agent Orange is not shown. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating the disorder in issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Given the foregoing, the Board finds that the service personnel reports, and service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that prostate cancer was caused by his service. II. Veterans Claims Assistance Act of 2000 (VCAA) 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). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in May 2011. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 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); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has not been afforded an examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports do not show any relevant complaints, treatment, or findings, providing evidence against the claim, and there is nothing to show that a malignant tumor was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). These claims are based on the theory of exposure to Agent Orange during service, and the Board has determined that such exposure is not shown. Therefore, the second McLendon criterion is not satisfied. With regard to the third McLendon criterion, the earliest medical evidence of prostate cancer is dated no earlier than 2003, which is about 23 years after separation from service, and there is no competent evidence to show that prostate cancer is related to service. Therefore, an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs