Citation Nr: 1327656 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-00 021A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides/Agent Orange. (The issue of whether the Veteran's income is excessive for the purpose of payment of nonservice-connected VA pension benefits is the subject of a separate decision.) REPRESENTATION Veteran represented by: Betty L.G. Jones, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1971 to March 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of April 2007 and October 2007 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Paul, Minnesota and Chicago, Illinois, respectively. In the April 2007 rating decision, the RO denied service connection for prostate cancer, to include as due to Agent Orange exposure. In the October 2007 rating decision, the RO denied service connection for hepatitis C. In September 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. The issue of service connection for hepatitis C is being REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran did not serve within the land borders, including the inland waters, of Vietnam during the Vietnam era and exposure to herbicides is not shown. 2. Prostate cancer was not manifested in service or to a compensable degree within one year following the date of the Veteran's separation from service in March 1973; his prostate cancer, first diagnosed after service is unrelated to an injury, disease, or event of service origin, including exposure to herbicides. CONCLUSION OF LAW Service connection for prostate cancer, including as due to exposure to herbicides/Agent Orange in service is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in May 2006. The Veteran was notified of the evidence needed to substantiate the claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, he was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. Furthermore, under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The Veteran was afforded a hearing before the undersigned in September 2012. The RO has obtained the Veteran's service treatment records and VA records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. 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) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the 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, during the Board hearing in September 2012, the undersigned indicated that the hearing would focus on the issue of service connection for prostate cancer, and discussed the elements of the claim that were lacking to substantiate the claim. The Veteran was assisted at the hearing by an accredited representative. The representative and the undersigned asked questions to ascertain the etiology of the prostate cancer. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked and that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim, particularly the pathway or means by which the Veteran felt he was exposed to Agent Orange during service, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. VA has not provided the Veteran an examination in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). However, further development is not required because there is no record of prostate cancer or complaints relative to a prostate disability during service or for many years after service. Nor does the Veteran claim that he had prostate cancer during service or in the years immediately after service. The Veteran testified that he was treated for a urinary tract infection during service, and his service treatment records do show complaints of a genitourinary nature that were diagnosed as nonspecific urethritis and treated with antibiotics for a bacterial infection. Nevertheless, there is no indication of involvement of the Veteran's prostate. Additionally, the record does not show, and the Veteran has not claimed, that his active service included service in the Republic of Vietnam, where exposure to Agent Orange is presumed. Nevertheless, the Veteran has argued that he was exposed to Agent Orange through his duties as a mechanic when he served a tour of duty in Japan. As will be discussed at length in the decision herein below, the evidence does not indicate that the disability may be associated with service, and therefore a medical examination or medical opinion is not required to decide the claim under 38 C.F.R. § 3.159(c)(4). It is not in dispute that in January 2006 the Veteran underwent a prostatectomy related to a diagnosis of prostate cancer. However, what this case turns on is whether the Veteran's service in Japan during the Vietnam era constitutes service in Vietnam under the regulations for purposes of establishing his exposure to herbicides. If such can be established, then the Veteran's claim for service connection is substantiated, as prostate cancer is presumed to be related to his period of service. Therefore, as competent medical evidence is on file to decide the claim, a medical examination or medical opinion is not required under the duty to assist. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including malignant tumors such as prostate cancer, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including a herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). If a veteran was exposed to certain herbicides during active service, prostate cancer will be presumed to have been incurred in service if manifest to a compensable degree, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(1), (b); 38 C.F.R. §§ 3.307(a)(6) , 3.309(e). If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2 ,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2,105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Facts and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran claims that he has prostate cancer that is attributable to his period of service, particularly to exposure to herbicides (Agent Orange). He has testified that while stationed in Japan (he has never asserted actual service in Vietnam) he worked in the motor pool as a mechanic, repairing trucks, with a transportation company. He believes that it was during the course of his duties that he came into contact with Agent Orange, as the trucks and its equipment and supplies were being shipped in and out of Vietnam where they had been contaminated with herbicides. The Veteran served on active duty from March 1971 to March 1973. His service personnel records show that his military occupational specialty was as a clerk typist. He had foreign and/or sea service of 1 year, 3 months, and 9 days, and his awards included the National Defense Service Medal. His DD Form 214, Report of Transfer or Discharge, specifically notes that his service did not include service in the Republic of Vietnam, Indochina, or Korea. Service treatment records do not show any complaint, finding, history, diagnosis, or treatment for a prostate disorder including cancer. After service, the Veteran signed an agreement in January 2004 to participate in a VA research study that aimed to determine whether certain vitamin supplements could prevent or reduce the occurrence of prostate cancer. The contract provided that the treatment would be stopped should his prostate cancer become worse, among other things. Thus, it appears that from at least January 2004, the Veteran was recognized as having prostate cancer; there are no medical records prior to this time that document a diagnosis of prostate cancer. VA records, beginning in 2005, show that on a CT of the pelvis, the Veteran was shown to have prostatic enlargement secondary to known malignancy. On VA outpatient records, "malignant neoplasm of the prostate" appears on the Veteran's active problem list, with a beginning date of November 2005. In January 2006, he underwent a radical perineal prostatectomy. Thereafter, he has experienced genitourinary symptoms associated with the surgery. In other words, the evidence of diagnosis and treatment for prostate cancer comes more than 30 years after his discharge from service in March 1973. Based on the service treatment records, prostate cancer did not have its onset in service, and the Veteran has not argued that prostate cancer was present during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Given that there is no competent evidence either contemporaneous with or after service that prostate cancer was noted, that is, observed, during service, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. For this reason, service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b) is not established. After service, the earliest record showing the presence of prostate cancer was 2004, which is well beyond the one-year presumptive period following separation from service in 1973 (for prostate cancer as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307(a)(3), 3.309(a)). As for service connection based on a postservice initial diagnosis under 38 C.F.R. § 3.303(d) after service, except for the allegation of exposure to herbicides, which is addressed separately, there is no competent evidence that the Veteran's prostate cancer, first documented after service beyond the one-year presumptive period, pertaining to a chronic disease, is otherwise related to an injury, disease, or event of service origin. 38 C.F.R. § 3.304(d). Regarding exposure to herbicides, the Veteran asserts that his prostate cancer is attributable to exposure to herbicides during his period of service in Japan, while he repaired trucks containing equipment and supplies that traveled to and from Vietnam. The Veteran does not assert that he set foot within the land borders of Vietnam, but instead in statements and testimony he emphasized that he worked in close proximity to vehicles and equipment that had been in Vietnam. His allegations of Agent Orange exposure thus appear to stem from his belief that trucks and their contents, which originated in Vietnam, contained herbicide residue. As noted above, 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, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525) (upholding VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption). As previously noted, there is no documentation that the Veteran's service involved duty or visitation in Republic of Vietnam. As it is not shown that the Veteran had service in the Republic of Vietnam, the presumption of exposure to herbicides does not apply to the Veteran's claim of service connection for prostate cancer. 38 U.S.C.A. § 1116(f). Further, as he is not presumed to have been exposed to herbicides, the presumption of service connection for prostate cancer under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) also does not apply. The Veteran may still establish service connection by evidence of actual exposure to herbicides and by evidence that such exposure caused the disability. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As for his assertion that Agent Orange residue from Vietnam on the trucks (and the equipment and supplies they carried) that he worked on while based in Japan constituted exposure to herbicide for purposes of establishing presumptive service connection, there are no records to document the presence of herbicides on the trucks and equipment that the Veteran came into contact with during the course of his duties as a mechanic in Japan, and there is no competent evidence of record to substantiate such a claim. Moreover, in his testimony, it was the Veteran's feeling that he "may have come in contact with something that way which may have affected" him (Transcript, p. 3), but he offered no details beyond his general feeling that trucks (forklift, flatbed truck, deuce and a half), and the equipment and supplies they carried, had Agent Orange on them. There is no evidence that such non-specific information could be used to verify exposure to herbicides. Further, the Veteran is not competent to state that he was exposed to herbicides from his duties as a mechanic, repairing trucks; such would require both knowledge that the specific vehicles he serviced were employed in using herbicides/Agent Oranges and some expertise regarding the properties of the herbicides/their ability to attach to the serviced vehicles. The Veteran has not proffered any proof (nor has he alleged) that he has such expertise . His allegations of such exposure are mere speculations on his part. It should also be emphasized that service connection may not be based on resort to speculation or remote possibility. For this reason, the Board finds that the Veteran was not exposed to herbicides during service in Japan. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). As the Board finds that exposure to herbicides has not been established, the Board does not need to address the question of medical causation, that is, evidence that prostate cancer was actually caused by exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As for the Veteran's statements attributing his prostate cancer to herbicide exposure during service while serving as a mechanic in Japan, although he is competent to describe symptoms of prostate cancer, the claimed disability is not a condition under case law where lay observation has been found to be competent. The determinations as to the diagnosis and causation of the Veteran's prostate cancer are medical in nature, that is, beyond the capability of lay observation. Where, as here, the questions involve a medical diagnosis not capable of lay observation, and of medical causation, competent medical evidence is required to substantiate the claim because the Veteran as a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. For these reasons, the Board rejects the Veteran's statements as competent evidence to substantiate that his prostate cancer is related to his period of service. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the record does not show, nor is it alleged that the Veteran visited or served within the land borders or internal waterways of Vietnam. Therefore, exposure to herbicides is not presumed. There is also no evidence of record to show that the Veteran was actually exposed to herbicides in service. Finally, there is no competent evidence of record linking the prostate cancer, first shown decades after active duty, to any incident of service. In view of the foregoing, the preponderance of the evidence is against the claim for service connection for prostate cancer, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for prostate cancer, to include as due to exposure to herbicides/Agent Orange, is denied. REMAND Regarding the claim of service connection for hepatitis C, under VA's duty to assist additional evidentiary development, including to secure a medical opinion, is needed. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record indicates that the Veteran currently has hepatitis C, as documented in an April 2001 VA outpatient record reflecting that he had tested positive for hepatitis C and by subsequent VA outpatient records noting that hepatitis C was on his problem list. Further, in May 2007 the Veteran in a questionnaire regarding hepatitis C risk factors endorsed some of the risk factors, to include high-risk sexual activity during service. The Veteran has not been afforded a VA examination to address whether his hepatitis C is in fact etiologically related to his period of service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to obtain an opinion concerning the etiology of his hepatitis C. After a review of the record and related medical and scientific literature, the examiner should provide an opinion on whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed hepatitis C is related to his period of service from March 1971 to March 1973. In providing an opinion, the examiner is asked to list all risk factors, including intravenous drug use, intranasal cocaine use, and high-risk sexual activity noted in the record, and discuss the Veteran's reported history of risk factors since service discharge. A complete rationale should be given for any opinion provided. 2. After the above development is completed, review the record and readjudicate the claim. If the benefit sought remains denied, issue an appropriate supplemental statement of the case, and afford the Veteran and his agent the opportunity to respond. Thereafter, if in order, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs