Citation Nr: 1336077	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  11-02 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

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


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from August 1966 to August 1968 with additional service in the Navy Reserves.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.


FINDING OF FACT

1.The Veteran did not serve within the land borders, including the inland 
waters, of Vietnam during the Vietnam era and actual exposure to Agent Orange is not shown.  

2.  Prostate cancer, was not affirmatively shown to have been present during 
service, was not manifested to a compensable degree within one year from the date of separation from service in August 1968.  

3.  Prostate cancer, first diagnosed after service beyond the one-year 
presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service.


CONCLUSION OF LAW

The criteria for service connection for prostate cancer have not been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 5103, 5103A, 5107(b) (West 2002 & 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and to Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 

With regard to the duty to notify, in his August 2013 hearing, the Veteran waived any error in the content or timing of the notice he received. 

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. 
There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  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, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).

II.  Laws and Regulations

Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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). 

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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b). 

Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for prostate cancer, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112 and 1137; 38 C.F.R. §§ 3.307, 3.309.

A Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicides, including a herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 

If a Veteran is presumably exposed to Agent Orange under 38 C.F.R. § 3.307, there is a presumption of service connection for prostate cancer.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). 

Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b). 

III.  Analysis

The Veteran's DD-214 shows that the Veteran served on the USS BORDELON (DD-881) during the Vietnam era. 

The service treatment records do not contain any complaint, finding, history, symptom, treatment, or diagnosis of any cancer whatsoever.  

Some 30 years after service, in April 1999, the Veteran was diagnosed with prostate cancer and underwent a radical prostatectomy.  

The Veteran asserts that his service on the USS BORDELON led to his exposure to Agent Orange.  In support of this assertion, the Veteran has submitted information regarding the USS BORDELON's missions to include firing upon North Vietnamese supply routes and providing gunfire support for the Third Marine Division south of the demilitarized zone.  

A June 2012 report from the Defense Personnel Records Information Retrieval Systems (DPRIS) noted that a command history of the USS BORDELON demonstrated that from November 1967 to January 1968, the ship was deployed to the western pacific and that it fired guns from off the coast of Vietnam for the first time on January 20, 1968.  It was noted that there were many naval gunfire support missions during the deployment.  DPRIS findings noted that the ship's histories did not document that the ship docked, transited inland waterways, or that personnel set foot in the Republic of Vietnam.  It was noted that the dates provided were too expansive for deck log research on the Veteran's behalf as they exceeded the sixty day time period for deck log research.  

In October 2012, the Joint Records Research Center (JSRRC) issued a memorandum of formal finding of lack of information required to verify exposure [to]tactical herbicide agents.  The memorandum noted that there was insufficient information to verify service in the Republic of Vietnam or Agent Orange exposure to send to the JSRRC and the National Archives and Records Administration (NARA).  Also of record is a memorandum from the JSRRC on findings regarding Navy and Coast Guard Ships during the Vietnam Era which notes that, to date, the JSRRC has found no evidence which indicates that the Navy transported tactical herbicides from the United States to Vietnam or that there was exposure based on contact with aircraft that flew over Vietnam.  

The Veteran has submitted numerous statements in support of his assertion that he was exposed to Agent Orange during service and testified before the undersigned Veterans Law Judge in August 2013.  Essentially, the Veteran contends that he developed prostate cancer due to exposure to Agent Orange while serving aboard the USS BORDELON.  He contends that, while aboard ship, he drank the ship's drinking water which carried Agent Orange and that his proximity, between a half mile to a mile away from land during combat, meant that he was exposed to herbicides.  He has argued that, as he was eligible for a Combat Action Ribbon, exposure to Agent Orange should be conceded.

On the basis of the service treatment records alone, in the absence of any complaint, finding, history, symptom, treatment, or diagnosis of prostate cancer,  prostate cancer was not affirmatively shown to have had onset during service and direct service connection is not established.

The Veteran does not assert, and the record does not demonstrate, continuous symptoms relating to prostate cancer; service connection on the basis of continuity is not established.

After service, prostate cancer was first diagnosed in 1999, more than thirty years after service, well beyond the one-year presumptive period following separation from service for malignant tumors.  Prostate cancer may not be presumed to have been incurred during service based on chronicity.  

To the extent the Veteran implies a causal relationship between prostate cancer, and his service, the so called "nexus" requirement, such an implication would constitute the Veteran's opinion, but the Veteran is not competent to provide an opinion regarding the cause of his prostate cancer.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Such a determination requires specialized education, training, or experience, which has not been factually established. 

The claim file contains no competent medical evidence whatsoever which relates the Veteran's prostate cancer to his claimed exposure to herbicides.  

Thus, the issue of service connection for prostate cancer must rely on whether such exposure may be presumed, in which case service connection for prostate cancer must be granted.

A Veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange.  38 U.S.C.A. § 1116(f).

"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, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). 

In order for the presumption of exposure to be extended to a Blue Water Navy Veteran, there must be evidence that the Veteran's ship operated temporarily on the inland waterways of Vietnam or that the Veteran's ship docked to the shore or a pier.  Haas, 525 F.3d 1168. 

The Veteran concedes that he never set foot on land in Vietnam, and has not asserted that the USS BORDELON was in the brown waters of Vietnam.  He asserts, instead, that he was exposed to Agent Orange in the air and water supply, by distillation of runoff sea water for drinking aboard ship.  This was the same argument in Haas and the Federal Circuit upheld VA's interpretation that the argument did not establish exposure to Agent Orange under 38 U.S.C.A. § 1116.  The Veteran has not provided persuasive evidence that a different result than that reached in Haas is warranted. 

The Joint Services Records Research Center has not found any evidence to support exposure to Agent Orange aboard ship.  See M21-1MR, Part IV, Subpart ii, 2.C.10. 

DPRIS review of the ship's history specifically found that there was no evidence that the USS BORDELON operated in the inland waterways of Vietnam or docked at a shore or pier in Vietnam.  

Accordingly, the Board finds that the Veteran was not exposed to Agent Orange while serving on the USS BORDELON.  Presumptive service connection for prostate cancer due to exposure to Agent Orange under 38 U.S.C.A. § 1116 is not established. 

The preponderance of the evidence is against the claim for service connection for prostate cancer; there is no doubt to be resolved; and service connection is not warranted.







ORDER

Entitlement to service connection for prostate cancer is denied.




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs