Citation Nr: 1335247 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-35 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL Appellant and D.T. ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active military service from August 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing held in October 2010. Previously, he testified at a RO hearing held in July 2009. In March 2011, the Board remanded this matter for additional development. Thereafter, the Board in a May 2013 decision, disposed of another matter on appeal and again remanded this matter for additional development. FINDINGS OF FACT 1. It is not shown that the Veteran served in the Republic of Vietnam or was exposed to an herbicide agent during active military service. 2. Prostate cancer was not manifest in service or within one year of separation, and is not attributable to the Veteran's active military service. CONCLUSION OF LAW The Veteran does not have prostate cancer that is the result of disease or injury incurred in or aggravated by active military service; prostate cancer may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in May 2007 and in February 2008, from the RO to the Veteran, which were issued prior to the RO decision in February 2009. These letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained all of the Veteran's available service treatment records (STRs), which are limited to his August 1971 entrance examination and July 1975 separation examination with the accompanying reports of medical history. Correspondence from the National Personnel Records Center (NPRC), dated in January 1976, noted that all other available STRs were unavailable. In June 2009, the RO had sent the Veteran a letter requesting that he complete and return a VA Form 13055 in order to identify alternative sources of in-service treatment records. The Veteran did not respond to this request in regards to the prostate cancer claim, although he did in regards to a right toe claim no longer on appeal. A September 2009 memorandum indicated that the STRs were unavailable, and a September 2009 report of contact indicated that he was contacted in regards to the unavailability of such records, and had no treatment records. Deck logs were obtained from the U.S.S. Hollister encompassing the time the Veteran served aboard the ship in 1972. The Veteran was provided an opportunity to submit additional evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. As the outcome of this case is shown to be contingent on the verification of herbicide exposure, which has not been established, the Board finds that it is not necessary to schedule a VA examination in this matter. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Analysis The Veteran alleges entitlement to service connection for prostate cancer, claimed as due to exposure to Agent Orange while serving aboard the U.S.S. Hollister (DD 788) during the Vietnam War. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, 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"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In this case, the Veteran has argued that his prostate cancer was caused by exposure to Agent Orange during military service. (He does not assert that the cancer began during service.) Prostate cancer is among the conditions for which service connection can be presumed if the Veteran is found to have been exposed to an herbicide agent during active military, naval or air service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. Prostate cancer shall be service connected based on such herbicide exposure if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). Thus, the Board will consider whether the evidence shows exposure to an herbicide agent. Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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, 1975, 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(d)(6)(iii). 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. Id. Evidence of record shows that the veteran was awarded Combat Action Ribbon. This is indicative of participation in combat. In that case, if an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2004). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Section 1154(b) allows combat veterans, in certain circumstances, to use lay evidence to establish the incurrence of a disease or injury in service. "However, the provisions of section 1154(b) do not provide a substitute for medical-nexus evidence. . ." Clyburn v. West, 12 Vet. App. 296, 303 (1999). Section 1154(b) serves only to relax the evidentiary burden to establish incurrence of a disease or injury in service. Id. The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, supra. In such cases, the Board is within its province to weigh that testimony and to make a determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Service treatment records are shown to be unavailable other than the Veteran's entrance and separation examinations. The August 1971 entrance examination showed no evidence of prostate abnormalities on examination, with an accompanying report of medical history that was negative for any cancer or of painful or frequent urination. The July 1975 separation examination again revealed no evidence of prostate problems or cancer. A January 1976 search for service treatment records brought forth a response from the National Personnel Records Center (NPRC) stating that an exhaustive search failed to reveal records. A letter was sent to the Veteran the same month stating that service treatment records were unavailable and requesting he send any records he may have, as well as statements from his comrades and other alternative medical sources. Service personnel records confirmed that following his enlistment which took place in San Diego, California in August 1971 he had service aboard the U.S.S. Hollister for his entire service at sea from March 1972 to August 1975. He was awarded the Combat Action Ribbon in September 1972. In January 1973, he was authorized to wear the Vietnam Service Medal and Ribbon with one Bronze Star for the campaign XV, July 1, 1971 to a date to be announced. He was entitled to income tax exclusions and payment of Hostile Fire Pay for the months of July 1972 to January 1973. Post-service private records show that the Veteran was diagnosed with prostate cancer in April 2007 and underwent prostatectomy in May 2007, with postoperative treatment and follow-up from May 2007 through August 2007 and additional follow-up on February 2008 and May 2010 indicating he had satisfactory progress status post surgery. None of the surgical records discussed any possible cause of the prostate cancer. The Veteran alleged in written statement and in testimony at his hearings held in July 2009 before a Hearing Officer and his Board Hearing held in October 2010 that he was exposed to Agent Orange while in service aboard the U.S.S Hollister. He described shoreline bombardment raids that the ship was involved in, including a daytime raid on Hungnam Island. He reported the ship being in South Vietnam in Da Nang Harbor for a 2-hour period to pick up mail and some officers one time, but conceded he did not leave the ship to go ashore at any time. He described bombardment and missile missions that brought the ship very close to the shoreline. His representative at the October 2010 hearing argued that Da Nang Harbor should be recognized as an inland waterway and pointed to a Board decision in another case that recognized Da Nang Harbor as the equivalent of being an inland waterway. He indicated that they were probably within a half mile of Da Nang Harbor or in the Hangmi Provence. The Veteran indicated that during some shoreline attacks the ship was grounded a few times. His representative in the July 2009 hearing suggested that if possible, the Veteran should try to obtain a statement from the Captain of the U.S.S. Hollister to confirm groundings of the ship during shoreline bombardments. The Veteran also described an incident where they were to fire missiles on land radar but he smelled some caustic chemical type of smell in the air which made his eyes water. He indicated he told his shipmates and Captain that they should be wearing gas masks. The Captain called off this mission and ordered them to shower and wash their clothes. At the October 2010 Board hearing, a lay witness, D.T., who reported serving with the Veteran, described that 90 percent of the time they were within a half mile of the coastlines of North and South Vietnam, but during night raids they were so close to shore that the ship had to back out because it could not turn around. The Veteran submitted an article about the U.S.S. Hollister, which showed that it conducted an early morning raid against a North Vietnamese ammunition dump on Hon Me Island as part of Overall Linebacker I Campaign to stop the North Vietnamese offensive against South Vietnam. A copy of an undated newspaper article described the U.S.S. Hollister as having been in a 200-round shore battery attack off Long Binh. Lay statements were submitted by multiple individuals who reported serving with the Veteran aboard the U.S.S. Hollister. These individuals confirmed that the ship was involved in bombardment and missile operations along the Coast of Vietnam, including the battle off Hon Me Island where they pulled up to the gun line off the coast of Vietnam to fire onto enemy radar installations. It was suggested in some lay statements including in April 2009 and September 2009 that the ship sometimes entered coves during these missions. A December 2009 statement describing the firefights in the Gulf of Tonkin described being exposed to Agent Orange "drift" and also said they were grounded by damage in a firefight. Lay statements from September 2009 and December 2009 described being close enough to the shoreline one time to see the enemy flag flying on the beach, which they were told to fire on. Some of the lay statements also suggested they were exposed to contaminated water via the seawater that was used to wash the ship and the desalinated seawater used for washing clothes and showering. There were estimated distances from the Vietnam shoreline during the bombardment missions given by the lay witnesses including a 1/2 mile given in July 2009 a "few hundred" yards given in September 2009, and roughly 1000 yards during the holiday season of 1972 according to a December 2009 statement. The Veteran's wife sent a statement in July 2009 where she thought his prostate cancer was related to toxins in the air when he was aboard ship. The Veteran also submitted various photographs with a lay statement that described the photos from being from November 1972 and depicting Da Nang Harbor when they were anchored in the bay. He also described a photo of a small fishing boat, clarifying that the flag it was flying was the Vietnamese flag. The photos generally show a shoreline, with blue water extending from the shoreline. The Veteran also submitted articles to support his contention of Agent Orange exposure while on the U.S.S. Hollister. These included articles from the Blue Water Navy Vietnam Veterans Association that suggested that exposure to Agent Orange should apply to the entire Da Nang area, including the city and harbor, and also suggested that contaminants were carried back onto carriers from aircraft. Another article suggested possible contamination of potable water on ships from distilled sea water, suggesting that Vietnam Veterans who served with the Australian Navy may have been contaminated by sea water on board ships. Deck logs from the U.S.S. Hollister were obtained, which encompassed the time the Veteran was serving aboard it and participating in combat operations off the coast of Vietnam. These deck logs confirm the Veteran's and his lay witnesses' contentions that the ship participated in numerous combat operations that involved firing at various targets on the shoreline of Vietnam, and also that the ship entered Da Nang Harbor. The logs indicated that in November 1972, the ship was firing upon the Huu Hung Highway Ferry and terminal on the North and south banks, but also indicate that the ship was off the coast of North Vietnam. The logs also showed that on October 10, 1972, the ship was as close as 3 miles seaward from the Tra Khuc River and set anchor in 8 fathoms of water with a mud bottom while 2 miles south of Hon Bone Thaw Island in the vicinity of Point Elke. The logs show that a fire mission was cancelled in September 1972, but gave no clear reason for the cancellation. The logs do not indicate that the ship was ever grounded or that it actually entered any of the rivers of Vietnam during any of its operations, combat or otherwise. The history of the U.S.S. Hollister submitted by the Veteran indicates that the ship was a destroyer that did engage in combat with the enemy located on shore, and this history was confirmed by the deck logs. Additionally, the Veteran was awarded the combat action ribbon. However, this does not establish that the U.S.S. Hollister conducted operations in an inland "brown water" river or delta area. VA Compensation & Pension Service has initiated a program that identifies United States Navy ships that operated in inland waterways or docked to the shore, even "blue water vessels" that did so temporarily. The U.S.S. Hollister is not among the listed ships that operated in inland waterways or docked to the shore. See, e.g., VA Compensation & Pension Service Bulletin (Jan. 2010). (The Veteran has admitted having never set foot in Vietnam.) The representative's comments in a July 2013 VA Form 646, alleging that the October 10, 1972 deck log indicated the U.S.S. Hollister was at the mouth of the Tra Khuc River is unsupported by evidence; thus, the comment has no probative value. The Board concludes that the evidence does not support a finding that the Veteran was exposed to herbicides in service or that he served in Vietnam such that exposure may be presumed. The evidence also does not show that prostate cancer was manifested during service or within one year after his discharge in 1975. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for prostate cancer. See Gilbert, 1 Vet. App. at 55. The Board acknowledges the Veteran's assertions regarding his claimed prostate cancer. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) ; 38 C.F.R. §§ 3.303(a) , 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); also see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As exposure to herbicides has not been established as explained above, the Veteran's lay assertions as to the manifestation of his current disabilities are of limited probative value. While the Veteran is competent to describe that which he experienced in service and thereafter, any contentions that his prostate cancer is related to active service are outweighed by the remaining evidence of record. Regarding the claimed incident in which he alleged that a firing operation was canceled after he noticed some caustic chemical type of smell in the air, he is not shown to be competent to identify this chemical as an herbicide. Likewise, he and other lay witnesses are not shown competent to provide a link between the development of prostate cancer and drinking and washing with desalinated seawater. The Board notes the article that purports to show some link between herbicide contaminated seawater and desalinizing plants aboard ships that were used to supply sailors with drinking water at sea. Such evidence does not indicate any specific participation of the Veteran or that his ship took in contaminated water and is not probative in establishing the Veteran's alleged exposure to herbicide or any link between current disability and service. The United States Court of Appeals for Veterans' Claims has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). Here the cited study is generic in nature; it is not specific to the Veteran's alleged nexus between his prostate cancer and his claimed exposure to herbicides. As noted above, there is no indication that the U.S.S. Hollister took on contaminated sea water. Consequently, the generic study is of no probative value. As the evidence described above suggests, there has been nothing more than conjecture that the Veteran's ship was in a position to be exposed to any herbicide or that it took on contaminated water. Being near land does not suffice. Therefore, the Board concludes that the evidence in this case weighs against the claim of service connection for prostate cancer, to include as due to exposure to herbicides. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. See 38 U.S.C.A. §5107 (West 2002). ORDER Service connection for prostate cancer is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs