Citation Nr: 1333174 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-38 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for prostate cancer. ATTORNEY FOR THE BOARD R. Hagen, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to December 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The Veteran did not have active service in the Republic of Vietnam during the Vietnam era or in the Republic of Korea Demilitarized Zone (DMZ) between April 1, 1968, and August 31, 1971, and is not otherwise shown to have been exposed to herbicides during service. 2. Prostate cancer did not have onset during active service, was not caused by active service, and did not manifest within one year of active service. CONCLUSION OF LAW The criteria for service connection for prostate cancer are not met. 38 U.S.C.A. §§ 1110, 1113, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided adequate notice in letters sent to the Veteran in April 2007 and August 2008, prior to the initial adjudication of his claim by the RO. VA has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In April 2007, VA requested the Veteran's service records from the Personnel Information Exchange System (PIES). PIES indicated the requested records had been sent. However, the records were never received by the RO. VA sent a letter to the Veteran in March 2008 requesting copies of his service medical records (SMRs). VA then sent two emails, one in March 2008 and one in May 2008, to the Records Management Center (RMC) requesting the Veteran's records. In June 2008, the RMC replied stating that there were no records. The Veteran did not respond to the March 2008 letter. The Board finds that it is reasonably certain that further effort to obtain the Veteran's records would be futile. 38 U.S.C.A. § 5103A(c)(2) (West 2002). As part of the duty to assist, sometimes a VA examination is necessary prior to final adjudication of a claim. That occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 veteran 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) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's medical records document a diagnosis of prostate cancer. However, the Board finds that the evidence does not show any event, injury, or disease in service, to include exposure to herbicides. Moreover, the Veteran's statements do not demonstrate that his service medical records provide any evidence of an in-service event, injury, or disease. Thus, a VA medical examination is not necessary prior to the final adjudication of this claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Board finds that all necessary development has been completed, and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to Service Connection The Veteran states that he should be entitled to service connection for prostate cancer because he served in Korea and occasionally traveled to the DMZ. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a service connection, a Veteran must show: (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 (Fed. Cir. 2004). Service connection may be granted for certain diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam and near the Korean DMZ. 38 U.S.C.A. § 1116(a)(1) (West 2002); 38 C.F.R. § 3.307(a)(6), 38 C.F.R. § 3.309(e) (2013). The Veteran does not assert that he served in Vietnam. If a Veteran served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean DMZ, in an area in which herbicides are known to have been applied during that period, the Veteran shall be presumed to have been exposed to that herbicide unless there is affirmative evidence to establish that the Veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iv) (2013). The presumption also requires manifestation of the disease to a degree of 10 percent at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2013). In January 2013, during the pendency of this appeal, the Veteran submitted photos of himself from a Kunsan Air Force Base album with his name and dates of 1975 and 1976 on the cover. Further, the Veteran included a postmarked envelope mailed to him at Kunsan Air Force Base by his wife in November of 1975. Additionally, the Veteran stated that he played basketball against military units stationed along the DMZ, and visited it on tours. The Veteran stated in his January 2009 substantive appeal that he was exposed to herbicide residuals while working on aircraft, noting that Kunsan Air Force Base is located 109 miles south of the DMZ, and that he understood that residual dioxins and herbicides could remain for up to 40 years after their use. The evidence of record shows that the Veteran served in Korea. However, the evidence does not indicate that the Veteran served during between April 1, 1968, and August 31, 1971. The Veteran's service separation form indicates that he entered active duty in January 1975. Therefore, the Veteran is not entitled to presumptive service connection based on his service in Korea. The absence of service during the presumptive period does not preclude a veteran from otherwise proving that his disability is linked to service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a current diagnosis of prostate from a February 2007 private medical record from T.M., M.D., noting a diagnosis in October 2005. With regard to a relationship between prostate cancer and service, the Veteran has not stated any basis for showing that there was an in-service incurrence or aggravation of a disease or injury, except for exposure to herbicides. The Veteran does not assert that any in-service disease or injury relevant to this claim was treated during service or recorded in any service medical record. Specifically, there is no evidence the Veteran was exposed to herbicides while on active duty, as he served after the presumptive herbicide exposure period, and the evidence does not otherwise show exposure to herbicides. No presumption exists about equipment that has come into contact with herbicides years earlier, and the Veteran's statements are not sufficient to show that it is at least as likely as not that he was exposed to herbicides during service. Additionally, the Veteran's statements about how long dioxin residuals remain on equipment are no more than speculation about what he has came into contact with during his service, and are not competent evidence to demonstrate exposure to herbicides because the Veteran is not shown to have the requisite training and expertise to make such an assertion. Finally, presumptive service connection is warranted for malignant manifesting to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2013). As the Veteran was diagnosed with prostate cancer in 2005, the preponderance of evidence is against a presumptive service connection for prostate cancer. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of prostate cancer, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, opinions expressed by the Veteran regarding the etiology of his prostate cancer are not competent because he does not have sufficient medical training. Accordingly, the Board finds that the preponderance of evidence is against a finding that the Veteran was exposed to herbicides in service, or that his prostate cancer had onset during active service, manifested within one year of service, or was caused by active service. There appeal must therefore be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for prostate cancer is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs