Citation Nr: 1328493	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  12-18 875	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUE

Entitlement to service connection for prostate cancer, to 
include as secondary to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

A. VanValkenburg, Associate Counsel






INTRODUCTION

The Veteran served on active duty with the United States 
Navy from June 1971 to May 1975 and was transferred into the 
Army Reserves.  His awards include a Combat Action Ribbon.

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from the July 2010 decision by the New 
Orleans, Louisiana, Regional Office (RO) of the United 
States Department of Veteran Affairs (VA).

The Board has not only reviewed the Veteran's physical 
claims file but also the electronic records maintained in 
the Virtual VA system to ensure complete review of the 
evidence of record.  
 

FINDING OF FACT

Prostate cancer was not first manifested during active duty 
or within one year of the Veteran's separation from service 
and the preponderance of the evidence is against a finding 
that the current disability is related to military service, 
to include alleged herbicide exposure therein.


CONCLUSION OF LAW

Prostate cancer was not incurred in or aggravated by 
service, and may not be presumed to have been incurred 
therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist 

VA has met all statutory and regulatory notice and duty to 
assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326 (2012).  A February 2010 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).  The letter also notified the Veteran of regulations 
pertinent to the establishment of an effective date and of 
the disability rating.  Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006).

VA has also met its duty to assist the Veteran in the 
development of the claims.  All relevant records have been 
obtained and associated with the claims file.  The Board has 
been given guidance for when an examination is warranted.  
Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in 
disability compensation claims, 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 manifesting 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 Secretary to make a decision on the claim.  

Simply stated, VA examinations under the standards of 
McLendon are not warranted in this case.  While the record 
reflects current diagnoses of prostate cancer, treatment 
records do not show that the Veteran was first diagnosed 
with or treated for the disorder until many years after his 
discharge from service.  The Veteran asserts that his 
diagnosed disorder is etiologically related to his alleged 
in-service exposure to Agent Orange.  However, his reports 
that he was exposed to Agent Orange during service are not 
supported by the record.  As explained further below, the 
Veteran is not entitled to presumptive exposure to 
herbicides, and there is no credible evidence of record that 
shows the Veteran was otherwise exposed to herbicides.  

The Board finds that any new medical opinion obtained today 
that purports to link the current diagnoses to service would 
be speculative at best, as there is no showing of element 
(2) from the McLendon analysis above - any evidence 
establishing that an event, injury, or disease occurred in 
service, or establishing certain diseases manifesting during 
an applicable presumptive period for which the claimant 
qualifies.  A new examination today would not provide a 
reasonable possibility of substantiating the Veteran's 
claims, and VA has no further duty to assist in this regard.  
38 U.S.C.A. § 5103A(a)(2).  

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably 
affects the outcome of the case, the Board finds that any 
such failure is harmless.  See Mayfield v. Nicholson, 20 
Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 
at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 
(2009). 

Service Connection Requirement and Applicable Law

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 
3.303.  Service connection may be granted for any disease 
initially diagnosed after service, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection on a direct basis, 
the record must contain: (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.  Shedden v. Principi, 381 F.3d 
1163, 1167 (Fed. Cir. 2004).  In the absence of proof of a 
present disability there can be no valid claim.  Brammer v. 
Derwinski, 3 Vet. App. 223, 225 (1992).  

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is 
shown as such in service, subsequent manifestations of the 
same chronic disease are generally service connected.  If a 
chronic disease is noted in service but chronicity in 
service is not adequately supported, a showing of continuity 
of symptomatology after separation is required.  Entitlement 
to service connection based on chronicity or continuity of 
symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only 
when the disability for which the Veteran is claiming 
compensation is due to a disease enumerated on the list of 
chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 
3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 
2013).

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.  Presumptive periods are not intended 
to limit service connection to diseases so diagnosed when 
the evidence warrants direct service connection. See Combee 
v. Brown, 34 F.3d 1039 (1994).  The presumptive provisions 
of the statute and VA regulations implementing them are 
intended as liberalizations applicable when the evidence 
would not warrant service connection without their aid.  38 
C.F.R. § 3.303(d).

Certain diseases, to include malignant tumors, may be 
presumed to have been incurred in service when manifest to a 
compensable degree within one year of discharge from active 
duty.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 
3.309(a).

The laws and regulations pertaining to Agent Orange exposure 
provide for a presumption of service connection due to 
exposure to herbicide agents for Veterans who have any of 
several diseases and served on active duty in Vietnam during 
the Vietnam Era.  38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. 
§§ 3.307(a)(6), 3.309(e) (2012).  A disease associated with 
exposure to certain herbicide agents listed in 38 C.F.R. § 
3.309(e) will be considered to have been incurred in service 
under the circumstances outlined in that section, even 
though there is no evidence of such disease during the 
period of service.  Generally, the regulation applies where 
an enumerated disease becomes manifest to a degree of 10 
percent or more at any time after service, except that 
chloracne or other acneform disease consistent with 
chloracne, porphyria cutanea tarda, and acute and subacute 
peripheral neuropathy shall have become manifest to a degree 
of 10 percent or more within a year after the last date on 
which the veteran was exposed to an herbicide agent during 
active military, naval, or air service.  38 C.F.R. § 3.307 
(a) (6) (ii).  

A veteran who, during active military, naval, or air 
service, served in the Republic of Vietnam during the 
Vietnam era, 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)(iii) (2012).  
Furthermore, even if a veteran does not have a disease 
listed at 38 C.F.R. § 3.309(e), he or she is presumed to 
have been exposed to herbicides if he or she served in 
Vietnam between January 9, 1962, and May 7, 1975, 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) (West 2002).

"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.  38 C.F.R. § 3.307(a)(6)(iii).  VA 
interprets 38 C.F.R. § 3.307(a)(6)(iii) as requiring a 
service member's presence at some point on the landmass or 
inland waters of Vietnam in order to benefit from the 
regulation's presumption, and that interpretation has been 
upheld by the Federal Circuit Court of Appeals.  Haas v. 
Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. 
Ct. (2008).  The VA General Counsel has determined that the 
regulatory definition (which permits certain personnel not 
actually stationed within the borders of the Republic of 
Vietnam to be considered to have served in that Republic) 
requires that an individual actually have been present 
within the boundaries of the Republic.  See VAOPGCPREC 27-
97. Specifically, the General Counsel has concluded that in 
order to establish qualifying "service in Vietnam," a 
veteran must demonstrate actual duty or visitation in the 
Republic of Vietnam.

Service on a deep water naval vessel in waters off the shore 
of the Republic of Vietnam, without proof of actual duty or 
visitation in the Republic of Vietnam, does not constitute 
service in the Republic of Vietnam for purposes of 38 
U.S.C.A. 
§ 101(29)(A) (establishing that the term "Vietnam era" means 
the period beginning on February 28, 1961, and ending on May 
7, 1975 in the case of a veteran who served in the Republic 
of Vietnam during that period).  See VAOPGCPREC 27-97.

"Inland waterways " are not defined in VA regulations; 
however, the Board may refer to the VA Adjudication 
Procedure Manual for interpretive guidance.  Inland 
waterways include rivers, canals, estuaries, and delta 
areas, such as those on which the Vietnam "brown water" Navy 
operated.  VA Adjudication Procedure Manual M21-1MR (M21-
1MR), M21-MR, pt. IV, subpt. ii, §1, ch. H, 28, "Considering 
Claims Based on Service Aboard Ships Offshore the RVN." As 
an appendix to that paragraph of the M21-1MR, VA maintains a 
list of ships which operated primarily or exclusively on 
Vietnam's inland waterways, ships which operated temporarily 
on Vietnam's inland waterways or docking to the shore, and 
ships which operated on Vietnam's close coastal waters for 
extended periods with evidence that crew members went ashore 
or that smaller vessels from the ship went ashore regularly 
with supplies or personnel.  Service aboard a ship that 
anchored in an open deep-water harbor, such as Da Nang, Vung 
Tau, or Cam Ranh Bay, along the Vietnam coast, does not 
constitute inland waterway service or qualify as docking to 
the shore.  

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; 38 C.F.R. § 
3.102; 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), citing Gilbert, 1 Vet. App. at 54.



Factual Background and Analysis

The Veteran asserts that he currently has prostate cancer 
due to exposure to herbicide agents during service.  The 
Veteran asserts he had two incidences of exposure while 
within one hundred yards of the Vietnam shore in the summer 
of 1972.  The Veteran included a map of Vietnam to 
supplement his descriptions.  He explained he never 
"disembarked" or "set foot" on land in Vietnam but is 
entitled to the presumption of exposure due to the following 
experiences.  Specifically, the Veteran asserts that during 
service aboard the U.S.S. Sarsfield (DD-837) in the Mekong 
Delta Region of Vietnam he traveled in "brown waters" by 
entering the mouth of a river south of Vung Tau to deliver 
ammunition to river patrol boats.  He asserts the destroyer 
ship was traveling in the same "brown water" as the river 
patrol boats, referred to as speedboats at the time.  

Alternatively, the Veteran asserts the destroyer came "very 
close to the shore" while dropping off emergency supplies 
offshore the Republic of Vietnam between Danang and the 
demilitarized zone close to the Hue.  He explained the ship, 
including a sailor, was close enough to shore to be hit by 
machine gun fire and also, to be exposed to Agent Orange.  
In support, he provided pictures of bullet damage to the 
ship and a bandaged solider next to the bullet holes.  The 
Veteran provided another statement that his ship operated in 
many of Vietnam's rivers and beach heads in support of 
missions.  He further contends that Agent Orange was sprayed 
by airplanes it into the air and his ship was very close to 
the spraying.  He has consistently described not setting 
foot on shore but asserts exposure based on proximity to 
shore, the handling of boats and supplies in and around the 
waters off the coast of Vietnam and inhaling air containing 
Agent Orange. 

Turning first to the Veteran's allegation of in-service 
exposure to Agent Orange, the record does not show that the 
Veteran had "service in Vietnam," and exposure to Agent 
Orange or other herbicides may not be presumed.  38 U.S.C.A. 
§ 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).   The 
Veteran asserts exposure to Agent Orange was secondary to 
being in close proximity to Vietnam while dropping off 
emergency supplies, through breathing air containing Agent 
Orange after airplanes sprayed chemicals and handling 
supplies in and around the waters of Vietnam, as discussed 
above.  Here, the Veteran is not alleging he was exposed to 
herbicide as a result of physical presence on the ground in 
Vietnam.  The Veteran's statements of being close proximity 
to shore are competent; however, being in close proximity to 
the shore does not result in a presumption to in-service 
exposure without physical presence in Vietnam.  His 
statements asserting inhalation of Agent Orange and exposure 
through handling boats and supplies off the Coast of Vietnam 
are not probative.  The statements are speculative at best, 
as there is no showing of any evidence establishing 
exposure, as discussed below.  The Veteran is not qualified 
to identify Agent Orange compounds or to opine that such 
were on the supplies he handled or were sprayed into the air 
by airplanes near his ship, and there is no competent 
evidence establishing these assertions.  An award of VA 
benefits may not be based on resort to speculation or remote 
possibility.  See 38 C.F.R. § 3.102.  The Board finds 
entitlement to presumptive service connection for prostate 
cancer requires actual physical presence in Vietnam and 
being in close proximity does not equate to having a 
physical presence in Vietnam under VA laws and regulations.  
Thus, there is no presumption of in-service exposure to 
herbicides.  See 38 U.S.C. § 1116(a)(1)(A) and 38 C.F.R. § 
3.307(a)(6)(iii), Haas, 525 F.3d 1168.

The Veteran also asserts his destroyer ship operated on 
inland waterways of Vietnam which he refers to as "brown 
water" in his complaint.  The U.S.S. Sarsfield is not on the 
VA maintained list of ships that operated on Vietnam's 
inland waterways.  Requests to the NPRC showed no evidence 
to substantiate the Veteran's service in the Republic of 
Vietnam.  The NPRC records show the U.S.S. Sarsfield (DD-
837) was in the waters off Vietnam during the summer of 1972 
as asserted by the Veteran but the record provides no 
credible evidence of in-country service.  The Veteran's DD-
214 shows a Vietnam Service Medal (VSM).  The medal is 
commendable, but not indicative of actual service on the 
landmass of Vietnam or inland waterways.  See Haas, Supra.  
In addition, the STRs are devoid of any notations of service 
in Vietnam.  The Veteran has not established actual exposure 
to herbicides.    

As noted, the Veteran asserts that he traveled in "brown 
waters" by entering the mouth of a river south of Vung Tau 
to deliver ammunition to river patrol boats.  However, as 
explained, although the term "Inland waterways " are not 
defined in VA regulations, the VA Adjudication Procedure 
Manual provides interpretive guidance.  These provisions 
indicate that inland waterways include rivers, canals, 
estuaries, and delta areas, such as those on which the 
Vietnam "brown water" Navy operated.  VA Adjudication 
Procedure Manual M21-1MR (M21-1MR), M21-MR, pt. IV, subpt. 
ii, §1, ch. H, 28, "Considering Claims Based on Service 
Aboard Ships Offshore the RVN."  Service aboard a ship that 
anchored in an open deep-water harbor, such as Vung Tau, as 
alleged by the Veteran, does not constitute inland waterway 
service or qualify as docking to the shore.

The Board recognizes that the Veteran provided a Wikipedia 
description of the U.S.S. Sarsfield with a service history 
in support of his claims.  The Board notes that Wikipedia is 
an open-source website where submissions may be made on any 
topic and are subject to ongoing subjective peer revision 
and editing without restriction by any party with access to 
the website throughout the world.  In any event, the 
highlighted portion states that in the summer of 1972 the 
destroyer piled the waters of the Gulf of Tonkin as a plane 
guard then patrolled off Hainan Island and participated in 
shore bombardment missions.  This information does not show 
the Veteran was in inland waterways.  

Upon review of the evidence of record, the Board finds that 
the Veteran's assertions of service on inland waterways are 
not credible and not supported by contemporaneous service 
records.  As a finder of fact, the Board, when considering 
whether lay evidence is satisfactory, may also properly 
consider internal inconsistency of the statements, facial 
plausibility, consistency of other evidence submitted on 
behalf of the Veteran.  See Dalton v. Nicholson, 21 Vet. 
App. 23, 38 (2007).  The STRs and DD-214 are silent as to 
any missions or stops in Vietnam.  The U.S.S. Sarsfield is 
not included on the VA's list of Agent Orange affected ships 
and the NPRC request revealed no evidence to substantiate 
the alleged service in Vietnam.  As discussed, the Veteran 
description of entering the mouth of the river south of Vung 
Tau is not consistent with service in the inland waterways 
of Vietnam as interpreted by VA.  Therefore, the Board finds 
that there is no credible evidence that the Veteran served 
in Vietnam to warrant presumptive service connection for 
prostate cancer based on herbicide exposure therein.  See 38 
C.F.R. § 3.309 (e). 

Although the Veteran has not been shown to warrant a 
regulatory presumption of service connection for his claimed 
disability as a result of in-service herbicide exposure, his 
claim must still be reviewed to determine if service 
connection can be established on a direct basis or based on 
applicable presumptions established for chronic diseases 
under 38 C.F.R. § 3.309 (a).  See Combee v. Brown, Supra.  

The Veterans assertions of in-service exposure to Agent 
Orange are not supported by the evidence.  Accordingly, his 
statements regarding in-service exposure to herbicides have 
no probative value.  As a result, the Board will review the 
Veteran's claims to determine whether service connection may 
be awarded based on direct service connection.

In this case, there is no question that the Veteran has a 
history of prostate cancer.  The private medical records 
submitted show the Veteran had a significant history of 
Prostate-Specific Antigens (PSA) and prostate cancer in 
January 2010.  A letter written and submitted in February 
2010 from his private physician also confirmed his diagnosis 
of prostate cancer.

A review of the STRs shows no diagnosis, complaints or 
treatment of a chronic prostate-related disability, and 
there is no medical or lay evidence suggesting that the 
Veteran's prostate cancer existed during service.  See 38 
C.F.R. § 3.303.   In addition, the evidence does not show 
that the disorder was diagnosed during one year presumptive 
period for chronic diseases.  See 38 C.F.R. §§ 3.307, 3.309.  

The nearly 30 year evidentiary gap between the Veteran's 
active service and the earliest medical evidence of prostate 
cancer weighs heavily against the Veteran's claims on a 
direct basis.  A lengthy period without treatment is 
evidence against a finding of continuity of symptomatology, 
and it weighs heavily against the claims.  See Maxson v. 
West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. 
Cir. 2000) (service incurrence may be rebutted by the 
absence of medical treatment of the claimed condition for 
many years after service).

The Veteran's assertion that his prostate cancer is 
etiologically related to his service is not competent and 
persuasive evidence.  See Routen v. Brown, 10 Vet. App. 183, 
186 (1997) (a layman is generally not capable of opining on 
matters requiring medical knowledge).  The Board again notes 
the Veteran's assertion that he was exposed to herbicides 
while in-service through being in close proximity to the 
shores of Vietnam to deliver emergency items, by traveling 
south of Vung Tau to deliver ammunition to river patrol 
boats, by operating in many of Vietnam's rivers and beach 
heads in support of his missions, inhaling Agent Orange 
after airplanes sprayed chemicals and handling boats and 
supplies in and around the waters off the coast of Vietnam.  
The assertions regarding exposure to Agent Orange through 
inhalation, close proximity to shore and residuals through 
handling supplies, the Board finds that such assertions are 
so speculative on their face as to not constitute credible 
evidence of in-service exposure to herbicides.  The 
assertions regarding traveling inland waterways in "brown 
water" have not been supported by any credible evidence of 
record, as discussed above.  

To the extent the Veteran himself may otherwise believe that 
his diagnosed disorders are related to his period of active 
service, the Board acknowledges the Court's holding in 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in 
which it held a lay person may speak as to etiology in some 
limited circumstances in which nexus is obvious merely 
through lay observation, such as a fall leading to a broken 
leg.  Here, the question of causation of the Veteran's 
prostate cancer extends beyond an immediately observable 
cause-and-effect relationship and, as such, the Veteran is 
not competent to address etiology in the present case.

In sum, the record does not support the Veteran's assertions 
regarding any actual exposure to herbicide, and service 
connection on a presumptive basis is not warranted.  
Additionally, the evidence of record does not show prostate 
cancer during service or for years thereafter, nor does it 
show that the Veteran's current prostate cancer is otherwise 
related to his period of service.  The evidence of record is 
not in relative equipoise.  Accordingly, as the 
preponderance of the evidence is against the claim for 
entitlement to service connection for prostate cancer, the 
appeal must be denied.  38 U.S.C.A. § 5107(b); Ortiz v. 
Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55-57 (1990).  


ORDER

Service connection for prostate cancer is denied.


__________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs