Citation Nr: 1325774 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-47 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to March 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Chicago, Illinois. In November 2011, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript (Transcript) is of record. The Veteran's claim was remanded by the Board for further development in February 2012. That development having been completed, the issue is now properly before the Board for review. FINDINGS OF FACT 1. The evidence of record does not demonstrate that the Veteran stepped foot in Vietnam during his period of active service. 2. The evidence of record does not demonstrate that the Veteran was exposed to herbicide agents while stationed in Thailand during active service. 3. Prostate cancer was not manifest during service, was not manifest within one year of separation, and the Veteran's current diagnosis of prostate cancer is not attributable to service, to include exposure to herbicides. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein, and the presumption of service connection for a Veteran exposed to herbicides is not applicable.. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (the VCAA) With respect to the Veteran's claim decided herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Here, the appellant was provided general notice concerning the criteria for service connection, to include service connection due to herbicide exposure, in a June 2007 letter. In the letter, the RO advised the Veteran of the basic criteria for service connection and explained VA's duties to assist him in obtaining evidence relevant to the claim. He was advised to identify any evidence relevant to the claim and that VA could assist him in obtaining any relevant evidence. He was also advised generally of the way VA assigns disability ratings and effective dates should the underlying claim be granted. The Board also concludes VA's duty to assist has been satisfied. As noted, the Veteran set forth his contentions during the hearing in November 2011. In addition, the RO attempted to verify the Veteran's exposure to herbicides by requesting information, more than once, from the Joint Services Records Research Center (JSRRC), as well as the Air Force Historical Research Agency (AFHRA). However, a formal finding issued in April 2013 indicated that, following this exhaustive search, there was a lack of information to verify any exposure to herbicides. Finally, the Board notes pertinent, post-service medical records have been obtained from the Veteran's VA providers. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). A medical examination has not been performed or medical opinion obtained with respect to the Veteran's claims for service connection for prostate cancer. However, the Board finds that the evidence of record fails to show that he was treated for either claimed disability during service, and post-service medical evidence does not provide any link between either disorder and his military service, to include as the result of herbicide exposure. As such, a remand for an examination and/or opinion is not necessary to decide either claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of unsubstantiated lay allegations establishing the required association between this current disability and service.) 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 with respect to the issue addressed herein, the Board finds that any such failure is harmless. See Mayfield, supra. II. Service Connection The Veteran is claiming service connection for his diagnosed prostate cancer to include as due to exposure to Agent Orange while he was stationed in Thailand. He indicates that he was stationed at U-Tapao, Ubon and Korat as a communication repairman. He does not contend, however, that he stepped foot on land in Vietnam, or that he served in the rivers within its geographical boarders (brown water). See Transcript, p. 3. To prevail on the issue of service connection on the merits, there must be evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In addition, certain chronic diseases, such as cancer, may be presumed to have been incurred or aggravated during service if they became disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice. Rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With regard to his theory of entitlement, 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, 1974, 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 C.F.R. § 3.307(a)(6)(iii) (2012). Service in the Republic of Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313 (2012). If a veteran was exposed to a herbicide agent during active military, naval, or air service, diabetes mellitus shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease (emphases added). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309 (2012). Here, the Veteran's DD-214 reflects that he served in the Air Force. His decorations do not include the Vietnam Campaign Medal, though he did receive the Vietnam Service Medal. The Remarks section stated, "VIETNAM: NO." Instead, the Veteran indicated that he was stationed in Thailand during the Vietnam War, at U-Tapao, Ubon, and Korat, and worked as a communications repairman. See Transcript, p. 4. While the Veteran did not testify that he ever set foot in Vietnam, he indicated that the majority of the equipment he repaired was located on the perimeter of the bases, less than 50 feet from the perimeter fences. See Transcript, p. 4. He also testified that he didn't not know, conclusively, whether he was exposed to Agent Orange, but postulated that it was a possibility. He stated that he could see pesticide spray in the air, though he could not positively identify the type of pesticide used. See Transcript, p. 9. As noted above, the RO attempted to verify the Veteran's exposure to herbicides in Thailand by requesting information from the JSRRC and AFHRA. Although an April 2013 Formal Finding found that the evidence presented by the Veteran was insufficient to warrant a conclusive records search, a comprehensive records search was conducted nonetheless. In July 2012, the JSRRC was unable to document a 307th HSS located at U-Tapao Airfield, Thailand. The agency was able to document that the 307th Strategic Wing with assigned units, to include the 307th Avionic, Field Maintenance, and Organizational Maintenance Squadrons. As such, JSRRC researched historical reports submitted by the 307th Strategic Wing from July through September of 1971. The agency was unable to document or verify that personnel assigned to this station were exposed to herbicides. Further, available historical information did not document Agent Orange or any other tactical herbicide spraying, testing, or storage at U-Tapao, Thailand, during the 1971 timeframe. A second request to JSRRC in December 2012 elicited another negative response. The RO requested information regarding the Veteran's unit assignment in Ubon, Thailand, and whether the unit reported serving along the airfield's perimeter, and whether herbicides were utilized between 1972 and 1973. It was noted that unit histories and supporting documents were in the custody of the AFHRA. When contacted, the AFHRA added in March 2013 that Agent Orange was never used on any base perimeter fence in Thailand. Instead, the Ubon RTAFB was sprayed with non-tactical, commercial, off-the-shelf herbicides in June 1970, but that practice was stopped prior to the Veteran's arrival. It was also noted that locals were contracted to assist with the clearing. As there is no evidence of record to show that the Veteran set foot in the Republic of Vietnam, nor a record of herbicide agents at any base on which the Veteran was stationed during his tour of duty in Thailand, the presumption of exposure to Agent Orange in this case is not applicable. In this case, the Veteran underwent surgery for adenocarcinoma of the prostate in December 2006. As such, this disorder manifested decades following the Veteran's period of active service, and there is no evidence of record to suggest otherwise, to include the Veteran's own statements. Further, no provider has linked this disorder to his period of service, to include as the result of herbicide exposure. The Board has considered the Veteran's statements that he was exposed to herbicides, but does not find such reports competent to establish such exposure. In short, while the Board does not doubt that the Veteran was stationed on bases in Thailand whose perimeters were cleared with the aid of herbicide agents, information from appropriate record custodians has shown that these pesticides were of the over-the-counter variety, and were used in conjunction with help from locals. As such, the Veteran has not demonstrated any expertise to conclude that he was exposed to an herbicide agent, in the absence of official records confirming exposure or medical opinion confirming that exposure to herbicides was possible under the circumstances of the Veteran's service. The evidence does not indicate the Veteran had prostate cancer in service. There is no evidence of this disorder within one year of service separation. Rather, the evidence does not reveal a diagnosis of either until many decades after separation from service. Moreover, there is no competent or credible lay or medical evidence indicating that the Veteran's currently diagnosed prostate cancer is related to service, and the evidence of record does not support presumptive service connection based on herbicide exposure. For all the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim for service connection for prostate cancer, and therefore it must be denied. ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs