Citation Nr: 1325155 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-18 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos. 4. Entitlement to service connection for sleep apnea, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia (RO). The claims file is in the jurisdiction of the VA RO in Cleveland, Ohio. In December 2010, the Veteran presented testimony before the undersigned at a videoconference hearing. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for COPD and entitlement to service connection for sleep apnea are addressed in the REMAND portion of the decision below, and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran had certified active duty service from August 1960 to July 1963. 2. The Veteran also had service with the Merchant Marine from April 1966 to December 1966, from January 1967 to March 1967, and from April 1967 to November 1967. This service does not constitute active military service. 3. The evidence does not reflect that the Veteran served in the Republic of Vietnam during his active duty service. 4. Prostate cancer has not been objectively shown to have originated during active duty service or for many years thereafter. 5. The competent and probative evidence of record does not show that erectile dysfunction is related to military service or to a service-connected disability. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by active military service and may not be presumed to have been so incurred, to include as due to exposure to Agent Orange during military service. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Erectile dysfunction was not incurred in or aggravated by active military service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims for entitlement to service connection for prostate cancer and entitlement to service connection for erectile dysfunction, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to the initial adjudication of the Veteran's claims, a November 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The Veteran's service treatment records, service personnel records, and identified private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA did not provide the Veteran with VA examinations with regard to his claims. However, VA examinations were not warranted in this case, as there is no evidence that the Veteran was exposed to Agent Orange during his active military service, there is no evidence of prostate cancer or erectile dysfunction during military service, and there is no evidence suggesting a link between the Veteran's prostate cancer and his active duty service or his erectile dysfunction and a service-connected disability or active duty service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, VA examinations were not warranted in this case. There is no indication in the record that any other additional evidence relevant to the issues decided herein is available and not part of the claims file. 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). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). I. Prostate Cancer The Veteran contends that he was exposed to Agent Orange during active duty service, and that his prostate cancer is the result of such exposure. In his November 2007 claim form, the Veteran reported that he was exposed to Agent Orange during service in the U.S. Merchant Marine. He reported Vietnam service from February 21, 1967 to March 3, 1967, during his service with the Merchant Marine. In a December 2007 statement, the Veteran indicated that he served in Vietnam with the Merchant Marine in 1967. He reported that his mission was to provide supplies to U.S. Navy personnel. In an April 2010 substantive appeal, the Veteran stated that, during his service with the Merchant Marine from January 1967 to March 1967 on the Coeur D'Alene Victory, he provided support services in Danang, Vietnam to military branches. He stated that he believed that he contracted prostate cancer due to exposure to Agent Orange while serving in the Merchant Marine, and that he also believed that, since his service with the Merchant Marine in Danang, Vietnam was in support of military operations, that any related illnesses should be covered by VA. During a December 2010 hearing before the Board, the Veteran stated that he was in Danang Harbor in 1965, and that his duties required him to leave his ship. He also noted that he left the ship for leave. VA regulations provide that if a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; diabetes mellitus, type 2; 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; 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 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia, other than chronic lymphocytic leukemia (CLL); abnormal sperm parameters and infertility; Parkinson's Disease and Parkinsonism; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; AL amyloidosis (also referred to as primary amyloidosis); endometriosis; adverse effects on thyroid homeostasis; and, any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed. Reg. 59232 (November 2, 1999). 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 that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although prostate cancer is among the diseases or disorders eligible for presumptive service connection based on exposure to Agent Orange, the evidence does not demonstrate that the Veteran had active duty service in Vietnam during the Vietnam era. The Veteran's service treatment records during his period of active duty service from August 1960 to July 1963 are negative for any complaints of or treatment for a prostate disability. They are also silent as to any indication that he served in the Republic of Vietnam or that he was otherwise exposed to Agent Orange. Similarly, his service personnel records do not show that he had service in the Republic of Vietnam, or that he served onboard a ship which was located in the waters off the coast of Vietnam. His service personnel records show that his only foreign service was at the U.S. Naval Station in Argentina, Newfoundland. In support of his claim, the Veteran submitted documentation showing that, during service with the Merchant Marine, he served onboard the Coeur D'Alene Victory from January 23, 1967 to March 20, 1967 as a wiper. The documents reflect that the Veteran was onboard during a foreign voyage, and that his employer at the time was Victory Carriers, Inc. He also provided a copy of the Coeur D'Alene Victory's logbook from January 30, 1967 to March 20, 1967, which shows that the Coeur D'Alene Victory voyaged to Danang, Vietnam during that time. The medical evidence of record reflects that, in September 2004, prostate cancer was diagnosed. In October 2004, the Veteran elected to undergo hormonal manipulation to downsize his prostate. He tolerated the hormonal therapy without difficulty. In February 2005, he had an I-125 seed implant performed. Follow-up treatment records reflect that the Veteran experienced some subacute side effects of radiotherapy, but that he had no recurrent, residual, or metastatic disease. Active military, naval, and air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(21) (West 2002); 38 C.F.R. § 3.6(a) (2012). Members of the American Merchant Marine in oceangoing service between December 7, 1941, and August 15, 1945, are considered to have performed active military, naval, or air service. 38 C.F.R. § 3.7(x)(15) (2012). The Veteran has certified active military service with the U.S. Navy from August 1960 to July 1963. He has indicated that he subsequently served with the Merchant Marine onboard the Coeur D'Alene Victory from January 1967 to March 1967. The evidence demonstrates that the Coeur D'Alene Victory sailed to the Republic of Vietnam and its waters during that time. However, such Merchant Marine service does not constitute active military service. 38 C.F.R. § 3.7(x)(15) (2012). Generally, VA is prohibited from finding on any basis other than an accurate and authentic service department document or service department verification that a particular individual served in the U.S. Armed Forces. See Soria v. Brown, 118 F.3d 747, 749 (Fed.Cir.1997) (concluding that in matters requiring service department certification "VA has long treated the service department's decision on such matters as conclusive and binding on . . . VA"); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) ("VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces."). There is no service department documentation of any active military service beyond the Veteran's single period of active naval service. Although the Veteran indicated during his December 2010 hearing before the Board that he served on a ship in Danang Harbor in 1965 and that his duties brought him to shore several times, the Veteran did not have active duty service in 1965, and his personnel records show that his only foreign service during active military service was to Argentina, Newfoundland. Moreover, all of the Veteran's other statements of record reflect his allegations that he was exposed to Agent Orange in Vietnam during service in the Merchant Marine. Thus, the Board does not find the Veteran's statements that he went ashore in Vietnam during active military service to be credible. As previously noted, the Veteran's post-service Merchant Marine voyage to Vietnam does not constitute active military service. Therefore, the Board concludes that the Veteran's active military service consists solely of his certified active naval service from August 1960 to July 1963, and any post-service exposure to Agent Orange during service with the Merchant Marine did not occur during active military service. Accordingly, the evidence does not show that the Veteran had active duty service in Vietnam during the Vietnam era, and he is not presumed to have been exposed to Agent Orange during his active duty service. Thus, service connection for prostate cancer is not warranted on a presumptive basis. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). Unfortunately, none of the remaining evidence of record discusses the etiology of the Veteran's prostate cancer, and there is no competent medical evidence of record to suggest that prostate cancer is directly related to service. In this regard, there is nothing in the Veteran's service treatment records that would indicate that prostate cancer began during service, and there is no evidence linking the Veteran's current prostate cancer directly to service. The Board must rely on competent medical evidence in making its determination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment). In the present case, the first medical evidence of record of prostate cancer was in September 2004, over 41 years after the Veteran's discharge from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). There is no evidence of record, lay or medical, linking the Veteran's prostate cancer directly to service. Thus, the evidence does not show that the Veteran's prostate cancer is directly related to service. Although the Veteran may have been exposed to Agent Orange during his service with the Merchant Marine, such service does not qualify as active military service. As there is no evidence showing that the Veteran was exposed to Agent Orange during his active military service, service connection for prostate cancer cannot be awarded on a presumptive basis. Moreover, as there is no evidence of record suggesting that the Veteran's prostate cancer is directly related to his active military service, the preponderance of the evidence is against service connection on a direct basis. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for prostate cancer is not warranted. II. Erectile Dysfunction The Veteran contends that he currently has erectile dysfunction, and that it was caused by his prostate cancer. During a December 2010 hearing before the Board, the Veteran reported that he developed symptoms of erectile dysfunction after his prostate cancer treatment, and that he believed that his erectile dysfunction was due to his prostate cancer. The Veteran's service treatment records are negative for any complaints of or treatment for erectile dysfunction. The Veteran's first complaints of erectile dysfunction symptoms were in June 2006. The June 2006 record shows that the Veteran was being evaluated for follow-up treatment following his radioactive seed implant for prostate cancer. The physician noted that the Veteran was having a difficult time obtaining and maintaining erections. A January 2007 treatment record notes that the Veteran's physician provided him with a sample and prescription for Viagra. An October 2007 private treatment record reveals the Veteran's reports that he was able to have erections, but that they were usually not firm enough for intercourse, and that he used Viagra as needed. The Board finds that the evidence of record does not support service connection for erectile dysfunction. Although the evidence does not demonstrate that erectile dysfunction has been diagnosed by a medical professional, lay evidence may establish a diagnosis of a simple medical condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson, 581 F.3d at 1316. In this case, with consideration of the medical evidence documenting the Veteran's reported symptoms of erectile dysfunction and that he was prescribed Viagra for those symptoms, the Board finds that the Veteran's lay statements are sufficient to establish a diagnosis of a simple medical condition, such as erectile dysfunction. Accordingly, there is evidence of a current diagnosis of erectile dysfunction. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, there is no evidence that the Veteran's erectile dysfunction is related to a service-connected disorder. Although the Veteran contends that his erectile dysfunction is secondary to his prostate cancer, as discussed above, service connection is not in effect for prostate cancer. 38 C.F.R. § 3.310; see Allen, 7 Vet. App. 439 (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Accordingly, as there is no evidence that the Veteran's erectile dysfunction is proximately due to or the result of a service-connected disease or injury, service connection for erectile dysfunction is not warranted on a secondary basis. The medical evidence of record also does not support direct service connection for erectile dysfunction. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment for erectile dysfunction, and the Veteran does not allege that he had symptoms of erectile dysfunction during service. Moreover, there is no medical or lay evidence of record suggesting that the Veteran's erectile dysfunction is directly related to service. In addition, the first medical evidence of erectile dysfunction was in June 2006, over 42 years after service discharge. Mense, 1 Vet. App. at 356. Accordingly, direct service connection for erectile dysfunction is not warranted. Because the medical evidence of record does not relate the Veteran's erectile dysfunction to his military service, or to a service-connected disorder, the preponderance of the evidence is against his claim. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 56. ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for erectile dysfunction is denied. REMAND The Veteran alleges that he has COPD and sleep apnea due to his active duty service. In particular, he contends that his COPD and sleep apnea are the result of exposure to asbestos during service. During his December 2010 hearing before the Board, the Veteran reported that he worked in a crash tube during service, that his duties involved scraping and painting boats, and that he developed breathing problems from breathing in the paint dust. His military occupational specialty was water transport, and the Veteran reported that he was a "boats mate." The record does not demonstrate that the Veteran's claims have been sufficiently developed. First, the RO should attempt to confirm the Veteran's assertions that he may have been exposed to asbestos during service. Second, it does not appear that all of the Veteran's relevant post-service treatment records have been obtained. The medical evidence of record shows numerous diagnoses of COPD; however, it is unclear whether sleep apnea has been diagnosed. Nevertheless, an August 2005 private treatment record reflects that N. Ali, M.D. suspected that the Veteran had obstructive sleep apnea, and indicates that a sleep study was completed, but not read. A copy of the sleep study has not been associated with the Veteran's claims file. The sleep study was performed at Fulton County Medical Center I (Wauseon). Accordingly, the RO should attempt to obtain copies of the sleep study and any additional private treatment records reflecting diagnoses of and treatment for COPD and sleep apnea. Last, the Veteran's service treatment records reflect diagnoses of and treatment for asthma during service. Accordingly, after performing the development discussed above, the Veteran should be provided with a VA examination to determine the etiology of any currently diagnosed respiratory disorder, including COPD and sleep apnea. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for COPD and sleep apnea. The RO must then obtain copies of the related medical records that are not already in the claims file, to include all available treatment records from Dr. Ali, The Toledo Clinic, and the Fulton County Medical Center I (Wauseon). All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that it is ultimately his responsibility to provide the records. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must contact the Department of the Navy Medical Liaison office and request verification of the Veteran's alleged in-service exposure to asbestos. The RO must enclose a copy of the Veteran's service personnel records, as well as a copy of all of the Veteran's statements of record in which he describes the ways by which he was allegedly exposed to asbestos. The Liaison Office must be requested to verify the alleged sources of exposure, and must be asked to indicate whether it was likely that the Veteran was exposed to asbestos in the course of his assigned duties. If no such opinion can be given, the service department must so state, and give the reason why. 3. Thereafter, the RO must make arrangements to provide the Veteran with a VA examination to determine the current existence and etiology of any respiratory disorder, to include COPD and sleep apnea. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Thereafter, based upon review of the service and post-service medical records, as well as the Veteran's lay statements, the examiner must provide an opinion as to whether any respiratory disorder found, including COPD and sleep apnea, is related to the Veteran's active duty military service, to include asbestos exposure. A complete rationale for all opinions must be provided. If such a determination cannot be made without resort to speculation, the examiner must specifically state this and provide explanation and rationale for why an opinion would require speculation. 4. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If either of the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs