Citation Nr: 1328231	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO. 11-03 866	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to service connection for Type II diabetes mellitus, to include as the result of herbicide exposure.

2. Entitlement to service connection for prostate cancer, to include as the result of herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel



INTRODUCTION

The Veteran had active service from August 1965 to January 1969, to include service in Korea between February 1968 and July 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Lincoln, Nebraska, Regional Office (RO) which determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for Type II diabetes mellitus claimed as the result of herbicide exposure and denied service connection for prostate cancer claimed as the result of herbicide exposure. 

Per a February 2013 Board decision, the issues of entitlement to service connection for Type II diabetes mellitus and prostate cancer were reopened for reconsideration, based on the receipt of service treatment records under 38 C.F.R. § 3.156(c) (2012), and remanded for development. All development action ordered by the Board on remand has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

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 served in Korea, but did not serve along the Demilitarized Zone (DMZ) and was not exposed to herbicides in Korea or at any other time during active duty.

2. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus was incurred during active duty, is the result of an event or injury during active duty, to include exposure to herbicides, began during the first post-service year, or is otherwise etiologically related to service.

3. The preponderance of the evidence is against a finding that the Veteran's prostate cancer was incurred during active duty, is the result of an event or injury during active duty, to include exposure to herbicides, or is otherwise etiologically related to service.


CONCLUSIONS OF LAW

1. The criteria for service connection for Type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).

2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Here, VA sent the Veteran VCAA notice letters in October 2008, August 2011 and April 2013 that fully addressed all notice elements for service connection claims. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify.

VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment and personnel records, as well as post-service reports of VA and private treatment and examination. Specifically concerning private treatment, VA has obtained records from the treatment providers the Veteran has identified, including as directed in the February 2013 remand. See Stegall, 11 Vet. App. at 271. VA attempted to obtain Social Security records, but was informed in an April 2013 communication that the Veteran's Social Security records had been destroyed. 

Moreover, as will be discussed below, the adjudication of this claim turns in part on the question of whether or not the Veteran was exposed to Agent Orange or other herbicides in service. All possible efforts to determine whether the Veteran had such exposure in service have been exhausted. The RO has acknowledged the Veteran's service in Korea, and has obtained the service records showing the dates and locations of that service. In March 2009, VA made an inquiry to the Agent Orange Mailbox (VAVBAWAS/CO/211/AGENTORANGE) regarding the Veteran's potential herbicide exposure, and obtained a response in July 2009. In July 2009, VA submitted a request to the Joint Services Records Research Center (JSRRC) in a further attempt to verify the claim. In September 2009, VA received a response from the Center for Unit Records Research, addressing the Veteran's possible exposure. Thereafter, in November 2010, VA received a formal finding from the JSRRC that the Veteran's alleged exposure to Agent Orange in Korea could not be verified. 

The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c).


Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 

With chronic disease (as defined in 38 C.F.R. § 3.309(a)) shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including diabetes mellitus, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Diseases associated with exposure to certain herbicide agents used in support of military operations will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a compensable degree within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). The list of diseases associated with herbicide exposure for purposes of the presumption include, among others, Type II diabetes mellitus and prostate cancer. 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval or air service, served in a unit that the Department of Defense has determined operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during the period from April 1, 1968 until August 31, 1971, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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)(iv).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it 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. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Initially, the Board concedes that the Veteran has current diagnoses of both diabetes mellitus and prostate cancer. He was diagnosed with both diseases in November 2000. Thus, the Board finds that the first prong of service connection, i.e., the existence of a present disability, has been met for both diabetes mellitus and prostate cancer. See Holton, 557 F.3d at 1366.

The Veteran does not claim, and the evidence does not otherwise suggest, that either disability began during service. The Board notes that there is no notation in the service treatment records that would suggest the onset of the diseases, or any treatment thereof, during service, and there is no lay or medical evidence to the contrary. His medical treatment records show that the disabilities were not diagnosed until November 2000, and no medical professional has opined to a relationship between the diseases and any event or injury in service. Therefore, direct service connection is not warranted. 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366. 

Similarly, as the Veteran's diagnosis of diabetes did not occur until November 2000, over 30 years after his separation from service, the evidence does not support a finding that the Veteran's diabetes mellitus became manifest to a degree of 10 percent or more during the first post-service year. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The Veteran's claim ultimately relies on his assertion that he was exposed to herbicides while serving in Korea in 1968. During that time, the Veteran worked on the telephone lines, and he asserts that his job duties would take him into areas where herbicides were used. VA has record of the Veteran serving active duty at Kimpo, Suwon, and Osan Air Bases. The Veteran asserts that he also took care of communications on other Army and Special Forces bases, but he has not identified any other bases to which he traveled. He claims that it "would have been very likely [that he] came into contact with someone or something that had been in contact with [herbicides]." See July 2010 Notice of Disagreement. He also claimed to have been in contact with Republic of Korea soldiers. See August 2011 correspondence. In a later statement, he indicated that even if herbicides were only used near the DMZ, "the rains and animals and the people that did the spraying would have spread it over a larger area." See June 2013 statement.

As discussed above, the RO has attempted to develop the Veteran's claim that he was exposed to herbicides while in service; all possible efforts to determine whether the Veteran had such exposure in service have been exhausted. 

The Veteran served in the 30th and 31st Communications Squadrons of the Air Force. 

In February 2006, the RO received a negative PIES response regarding exposure to herbicides. 

In March 2009, the RO made an inquiry to the Agent Orange Mailbox (VAVBAWAS/CO/211/ AGENTORANGE) regarding the Veteran's potential herbicide exposure, inquiring whether herbicides were used in the locales where the Veteran served in Korea. In a July 2009, the Agent Orange Mailbox response indicated that after a review of available Department of Defense and VA records, the reviewer was unable to provide evidence to support the Veteran's claim that he was exposed to herbicides, The Agent Orange Mailbox response noted that the list of herbicide use and test sites outside of Vietnam, as maintained by the Department of Defense, identifies 71 sites within the United States and in foreign countries where herbicide use and/or testing has been acknowledged. The list does not contain any references to routine base maintenance activities such as range management, brush clearing, or weed killing, as the Department of Defense has indicated that such small-scale non-tactical herbicide applications were not recorded. The response indicated that in addition to the Department of Defense list, VA has acknowledged the use of herbicides on the Korean DMZ from April 1968 to July 1969, and that there is record of specific units recognized as being at or near the Korean DMZ during that time period. Regarding the Veteran, who served in a signal battalion, the response determined that VA does not have record of any signal battalion operating near the Korean DMZ during the requisite timeframe, and thus no evidence could be provided to support the Veteran's exposure claim. The response instructed the RO to contact the JSRRC to further attempt to verify the claim.

VA submitted a request to the JSRRC in July 2009, which attempted to clarify information regarding the Veteran's service in Korea. The JSRRC (then under the heading Center for Unit Records Research) responded in September 2009, indicating that it could not document or verify that the Veteran was exposed to herbicides while stationed in Korea. The response specifically considered the Veteran's service at Kimpo, Suwon, and Osan Air Bases, and considered a longer period of herbicide use in Korea than had the Agent Orange Mailbox: 1967 to 1969.  The response provided that chemical herbicides were used along the Southern Boundary of the DMZ during the period of 1967 to 1969 by Republic of Korea (ROK) Armed Forces as part of counter-infiltration operations. The ROK soldiers applying the herbicide were advised in the use of herbicides by United States Army Non-Commissioned Officers, but no United States Personnel are known to have been actually involved in the application. 

Thereafter, in November 2010, the JSRRC coordinator made a formal finding that there was a lack of information required to verify that the Veteran was exposed to Agent Orange in Korea. The memorandum noted review of the Veteran's claim, the February 2006 PIES request response, service treatment and personnel records, the Agent Orange Mailbox response, and the September 2009 JSRRC response, and determined that Agent Orange exposure could not be conceded based on the evidence of record. It is evident that the JSRRC considered the Veteran's entire time in Korea in formulating its response, and all possible sources of evidence of exposure. The Board thus finds that the September 2009 JSRCC finding is adequate. 

Other than the Veteran's claims, there is no evidence of exposure to herbicides while serving in Korea. The presumptions of 38 C.F.R. § 3.309(e) for diseases associated with exposure to certain herbicide agents only apply if the requirements of 38 C.F.R. § 3.307(a)(6) are met. Section 3.307(a)(6)(iv), which addresses service in Korea, requires that the Veteran served in a unit that the Department of Defense has determined to have operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period. Based on the evidence of record, such a presumption is not warranted.

The Veteran argues that the fact that he has prostate cancer and diabetes should constitute evidence that he was exposed to herbicides. In effect, he attributes the sole possible cause of his prostate cancer and diabetes to herbicide exposure. The Board understands the Veteran's argument, but the Veteran is not competent to make such an etiology finding concerning the diagnoses as these are complicated medical conditions requiring interpretation of pathology and laboratory testing and consideration of medical research and the individual risk factors. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). As he is not competent to make such findings, his opinion is not probative of the matter. Jandreau, 492 F.3d at 1376-77.

The Board takes note that while the Veteran competently and credibly has described his experiences in Korea, he has never identified being in a location where the spraying of herbicides was ongoing or having otherwise seen herbicides while stationed in Korea. His argument centers on his belief that it was likely that Agent Orange spread away from the DMZ, and that it was likely that the people he came in contact with had performed herbicide spraying. It is evident to the Board from these descriptions that, while the Veteran believes he must have been exposed to herbicides, he has offered no firm evidence to show that he actually was; his claims rely on speculation. As they are speculative, the Veteran's claims are heavily outweighed by the JSRRC findings of record.

The Board finds that the Veteran was not exposed to herbicides while stationed in Korea. Therefore, the presumptions of 38 C.F.R. §§ 3.307 and 3.309 are not applicable in the present case, and service connection on a presumptive basis is not warranted. 

The Board has considered direct service connection, as discussed above, but determines that service connection is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (1994) (holding that regulations governing presumptive service connection do not preclude a Veteran from establishing service connection with proof of actual direct causation).

In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57.


ORDER

Entitlement to service connection for Type II diabetes mellitus, to include as secondary to herbicide exposure, is denied.

Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure, is denied.



____________________________________________
HOLLY SEESEL
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs