Citation Nr: 1335824	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  11-24 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for prostate cancer claimed as due to in-service herbicide exposure.

2.  Entitlement to service connection for erectile dysfunction claimed as secondary to prostate cancer.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

M. Caylor, Associate Counsel


INTRODUCTION

The Veteran had active naval service from October 1967 to September 1969.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.


FINDINGS OF FACT

1.  Prostate cancer is not related to a disease, injury, or event in service; prostate cancer did not manifest within one year of service separation.

2.  Erectile dysfunction is not related to a disease, injury, or event in service; erectile dysfunction was not caused or aggravated by a service-connected disability.


CONCLUSIONS OF LAW

1.  Prostate cancer was not incurred in or aggravated by active service or exposure to herbicides and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

2.  Erectile dysfunction was not incurred in or aggravated by active service or exposure to herbicides and is not proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Procedural Duties

VA satisfied its duties to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Under the VCAA, VA must assist a claimant when he or she files a complete, or substantially complete, claim for benefits.  This assistance involves notifying claimants of evidence that is necessary, or would be of assistance, in substantiating their claims, and providing notice that, if service connection is awarded, a disability rating and an effective date for the award of benefits will be assigned.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). 

Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  VA should provide this notice prior to the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120   (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

In this case, VA provided the Veteran notice in March 2011, prior to the initial adjudication of his claim in June 2011.  The content of the notice letter fully complies 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 Veteran was notified of the evidence not of record that was necessary to substantiate the claim and told that he needed to identify the relevant time periods for treatment and the persons, agency, or company in possession of additional records to help decide his claim.  He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated.  Further, he was told how VA would assign a disability rating and an effective date if the claim were granted.  As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran.  

VA also satisfied its duty to assist the Veteran in the development of his claim.  

VA satisfied its duty to seek relevant records.  The RO associated the Veteran's service treatment records (STRs), VA treatment records, private treatment records, a January 2011 letter from a private physician, buddy statements from 2011, and information VA requested from the U.S. Army & Joint Services Records Research Center (JSRRC) with the claims file.  The Veteran has not identified any treatment records aside from those that are already of record; therefore, the Board concludes VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.  

The Board acknowledges that VA has not obtained a medical opinion addressing whether the Veteran's prostate cancer or erectile dysfunction is etiologically related to his active duty service, to include exposure to herbicides.  Under the VCAA, VA is obliged to provide an examination when (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service; and (3) the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

While there is competent evidence of a current disability, the Board finds that an examination is not required because the record lacks competent evidence of an in-service incident, as the Board has determined that the Veteran was not exposed to herbicides during service, and the Veteran does not allege, nor does the record show, that another in-service incident may have caused his prostate cancer or erectile dysfunction.  

As VA satisfied its duties to notify and assist the Veteran, the Board finds no further action is needed to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Merits of the Claim

The Veteran contends he is entitled to service connection for prostate cancer due to exposure to herbicides in Vietnam and erectile dysfunction as secondary to prostate cancer.  

The Board finds the Veteran not entitled to service connection for prostate cancer or erectile dysfunction because competent, probative evidence of record fails to establish that he was exposed to herbicides or that his prostate cancer or erectile dysfunction is otherwise etiologically related to his active service.  

A disability is service-connected if it resulted from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  

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, will be presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence that establishes that the veteran was not exposed to any such herbicide agent.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  "Service in the Republic of Vietnam" means actual service in-country, including service in the inland waterways, in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore or 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); see VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam).  Where shore-docking did not occur, a veteran who served in a deep-water vessel may still establish exposure to Agent Orange if the evidence establishes that the ship operated in Vietnam's close coastal waters for extended periods; that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel; and that he or she personally went ashore.  Comments, 66 Fed. Reg. 23166 (May 8, 2001); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (holding that VA's requirement that a Veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute).  

If a veteran with active service in the Republic of Vietnam has a disease listed in 38 C.F.R. § 3.309(e) as associated with exposure to herbicide agents that became manifest to a degree of 10 percent or more, the disease will be considered to have been incurred in or aggravated by service even if there is no evidence of such disease during the period of service, unless there is competent affirmative evidence to the contrary.  38 U.S.C.A §§ 1113, 1116(a)(1); 38 C.F.R. §§ 3.307(a), (d).  The diseases include:  chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), but not cancer of the tongue.  38 C.F.R. § 3.309(e).  

A disability is also presumed service-connected if the veteran had at least 90 days of active service and the disability at issue is a chronic disease listed under 38 C.F.R. § 3.309(a) that manifested to a degree of 10 percent or more within a presumptive period following the Veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  If evidence of chronicity, or permanency, of the disease in service is not shown, service connection can still be established for conditions listed in 38 C.F.R. § 3.309(a) by showing a continuity of symptomatology following service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013).  Continuity of symptomatology is shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  If the disease was diagnosed after discharge, service connection may still be granted when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

If the claimed disability is not listed under 38 C.F.R. § 3.309(e), and is not chronic under 38 C.F.R. § 3.303(a), the veteran may still establish a nexus between the disability and active service on the basis of direct service connection.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("The existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association.").

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or causal relationship, between the in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  The Board also notes that secondary service connection on the basis of aggravation (where a service-connected disability is aggravating a non-service-connected disability) is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law.  38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board must focus on the evidence necessary to substantiate a claim and what the evidence fails to show, and, in doing so, explain why any material evidence favorable to the claimant was rejected or given little weight.  38 U.S.C.A. § 7104(d)(1) (2013); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).  But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record).

If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  If a preponderance of the evidence is against a claim, the claim will be denied.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).  If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant.  Gilbert, 1 Vet. App. at 53-54.  

Evidence of record demonstrates that the Veteran has current diagnoses of prostate cancer and erectile dysfunction.  

A review of the record reveals that the Veteran was diagnosed with prostate cancer in a January 2005 private treatment record from the Urology Surgical Center and with erectile dysfunction in a December 2005 private treatment record from the Urology Surgical Center.  

While the Veteran has a current diagnosis of a disease listed under 38 C.F.R. § 3.309(e) as associated with exposure to herbicides-prostate cancer-the Veteran is not entitled to presumptive service connection based on exposure to herbicides because the record fails to establish that he was exposed to herbicides during active service in the Republic of Vietnam.

In his March 2011 claim, the Veteran asserted that he was exposed to Agent Orange when docked at Da Nang during the Vietnam War, sometime between June and December of 1968.  In a March 2011 statement, the Veteran stated that the U.S.S. England had gone into Da Nang Harbor to pick up a commanding officer, and that on one other occasion it had gone very close to the inland waters to pick up casualties.  Buddy statements in emails from March 2011 show that several people remembered pulling into Da Nang Harbor to pick up a captain or commodore sometime between September and November 1968, and that on another occasion someone remembered being told at the time that the ship was "in so close that the props were bringing up mud and gravel from the bottom."  The Veteran's Form DD 214 shows that he served overseas for one year and almost nine months between October 1967 and September 1969, and that he received the Vietnam Service and Vietnam Campaign Medals.  The Veteran's STRs do not contain any indication of exposure to Agent Orange.  

VA sent a request to JSRRC for September 1968-November 1968 to verify the Veteran's exposure to herbicides.  The JSRRC considered the Veteran's statements and the corroborating buddy statements and reviewed the 1968 command history and September-October 1968 deck logs for the U.S.S. England, which showed that the U.S.S. England deployed from California in July 1968, arrived at Da Nang Harbor in the Republic of Vietnam that same month and departed six hours later, that it later anchored overnight in Da Nang Harbor in November 1968, and that while it was anchored a high-ranking officer and staff embarked the ship.  The deck log did not show that casualties embarked the ship.  The JSRRC found that the Veteran's personnel information was inconclusive for exposure to Agent Orange, as it showed the Veteran had served on the U.S.S. England, which served in the waters of Vietnam, but the ship was not presumptive for exposure, as Da Nang Harbor is a deep-water harbor and is insufficient to concede exposure under VA's Adjudication Procedure Manual.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 10.k.  The JSRRC also noted that the Veteran had not alleged that he ever went ashore.  The JSRRC ultimately determined that the request was negative for shore-docking or service in the inland waterways and that Agent Orange is not conceded. 

The Board finds the Veteran and his colleagues competent to report what they did during their time on the U.S.S. England and that their statements are credible, as they corroborate one another and are supported by the ship's deck log, and gives them probative weight.  The Board notes, however, that the buddy statements do not contain any reports based on personal knowledge that the ship docked in inland waters or operated in Vietnam's close coastal waters for extended periods, that crewmembers went ashore, or that smaller vessels from the ship regularly went ashore with supplies or personnel.  Further, the Board notes that the Veteran has not alleged that he ever went ashore.  38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97; Haas, 525 F.3d 1168.

The Board acknowledges that the Veteran submitted two documents attempting to establish exposure to herbicides.  The first is an excerpt from an August 2011 article in The American Legion Magazine expressing a concern regarding VA ROs failing to request deck logs prior to rejecting some claims.  This excerpt is, however, not relevant, as VA requested deck log information in March 2011, prior to the RO deciding the Veteran's claim in June 2011.  The second is "The Da Nang Harbor Report," a publication of the Blue Water Navy Vietnam Veterans Association, which contends that when ships from offshore came into Da Nang Harbor, they were surrounded by a floating mass of herbicides clinging to oil and debris on the water's surface, and that the herbicides then sent vapors into the air that contained Agent Orange and its byproduct, dioxin.  The report also contains two opinions from an environmental scientist, Dr. Dwernychuk.  Dr. Dwernychuk opined that if naval personnel at anchor in Da Nang Harbor had intimate associations with the water-eating fish or crab from the water, swimming, swallowing water-it is as likely as not that there could have been uptake of dioxin through ingestion and absorption.  He also opined that it is more likely than not that runoff from the Da Nang Airbase containing Agent Orange and dioxin would have terminated in the Da Nang Harbor, and that if the runoff was substantial with significant levels of dioxin being consistently transported by erosion or rains into the Da Nang Harbor, there is some probability that dioxin vapors may have been taken in by U.S. Navy personnel through inhalation.  He noted, however, that it is not possible to establish the levels of exposure and potential uptake because studies were not done during the conflict.

The Board finds Dr. Dwernychuk competent to provide an opinion on whether veterans aboard ships that anchored in or entered Da Nang Harbor could have been exposed to Agent Orange and its byproduct, dioxin.  It also finds his opinion credible, as the report cites to research that supports his opinion.  However, the Board finds the VA Blue Water Claims Update and VA's guidelines more probative than Dr. Dwenychuk's opinion, as they are supported by extensive research and specifically address the ship on which the Veteran served, and Dr. Dwernychuk's opinion appears to be speculative or based on conjecture, as he noted that there is no contemporaneous testing or data available to establish levels of exposure and, regarding exposure to vapors, his opinion was that there was only "some probability" naval personnel may have inhaled such vapors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Sacks v. West, 11 Vet. App. 314, 316-317 (1998) (holding that a generic statement in a medical article regarding a possible link was general and inconclusive and the link therefore speculative).  Moreover, the Board notes that the Veteran has not alleged that he had intimate association with the water in Da Nang Harbor.  

The Veteran is also not entitled to presumptive service connection on the basis of a chronic disease that became manifest to a degree of 10 percent within one year of service.

While the Veteran's prostate cancer is listed as a chronic disease under 38 C.F.R. § 3.309(a), the record does not establish that it was incurred or aggravated during service or that it became manifest to a degree of 10 percent within a year of his separation from service.  The Veteran's STRs are silent for complaints of or treatment for prostate cancer and his September 1969 separation examination indicates that endocrine and related evaluations were clinically normal.  Further, he has not alleged that he had prostate cancer or symptoms thereof during service or within a year after separation from service, and the record contains no medical evidence of prostate cancer prior to his diagnosis in 2005.  

The Board may not grant presumptive service connection for the Veteran's erectile dysfunction because it is not listed as a chronic disease under 38 C.F.R. § 3.309(a).  Walker, 708 F.3d. at 1337-38.

Similarly, the Veteran is not entitled to service connection on a direct basis.  While he has a current disability, he has not alleged, and the record does not reveal, that his prostate cancer or erectile dysfunction was incurred or aggravated in service; that he was actually exposed to an herbicide; that an in-service incident other than exposure to herbicides caused his prostate cancer; or that anything other than his prostate cancer caused his erectile dysfunction.

Further, to the extent the Veteran's claim could be interpreted as providing lay evidence of a nexus, the Board finds the Veteran not competent to provide an opinion regarding the etiology of his prostate cancer or erectile dysfunction, as the issue is medically complex and requires specialized education, training, or experience.  38 C.F.R. § 3.159(a)(2); Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 177 n.4; Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).  

Finally, regarding his claim for erectile dysfunction based on secondary service connection, the Veteran is not entitled to service connection on a secondary basis.  The record contains a letter from Dr. H, wherein he opines that the Veteran's erectile dysfunction is the result of surgery for prostate cancer.  The Board notes, however, that his prostate cancer was found not service-connected, and that the Veteran has not alleged that any of his service-connected disabilities-bilateral hearing loss or tinnitus-caused his erectile dysfunction.  

Accordingly, the Board concludes that entitlement to service connection is not warranted because the preponderance of the evidence is against the claims for service connection for prostate cancer and erectile dysfunction.





ORDER

Service connection for prostate cancer is denied.

Service connection for erectile dysfunction is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs