Citation Nr: 1336304 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-30 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for prostate cancer. The Veteran submitted a March 2011 statement requesting "reconsideration" of the June 2010 rating decision that denied service connection for prostate cancer. Special wording is not required for a notice of disagreement (NOD), although it must be written in terms that can be reasonably construed as disagreement with a determination and a desire for appellate review. 38 C.F.R. § 20.201. While the RO construed the Veteran's March 2011 statement as a request to reopen the claim, the Board finds that it served as an NOD for the prior June 2010 rating decision. The RO continued to deny the Veteran's claim in an April 2011 rating decision and an October 2011 statement of the case. FINDINGS OF FACT 1. Exposure to herbicides in service has not been established. 2. Prostate cancer was not manifest in service and is not attributable to service, to include as claimed exposure to herbicides in service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and 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. An April 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). This 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). The claim was subsequently readjudicated, most recently in an October 2011 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 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. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA need not obtain an examination because the evidentiary record does not show that the Veteran's current prostate cancer is associated with an event, injury, or disease in service, or is otherwise associated with military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). II. Analysis The Veteran seeks service connection for prostate cancer, which he claims resulted from his exposure to herbicides while stationed in Korea from August 1970 to July 1971. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by: (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the record does not show, and the Veteran does not contend, that he has been diagnosed with any disorder explicitly recognized as chronic under 38 C.F.R. § 3.309(a), these provisions cannot be favorably applied to his claim. Id. The Veteran's service treatment records do not contain any complaint, finding, history, symptom, treatment, or diagnosis of prostate cancer. The Veteran was first diagnosed with prostate cancer in February 2010, approximately 40 years after service. Thereafter, VA and private treatment records indicate that the Veteran received treatment for prostate cancer. The Veteran has not claimed that his prostate cancer had its onset during service. The medical evidence of record shows that the Veteran did not have prostate cancer on separation from service but, rather, that it developed many years after service. See 38 C.F.R. § 3.303. Service connection may be presumed for prostate cancer as a residual of herbicide exposure by the showing of two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam Era or in Korea between April 1, 1968 and August 31, 1971 (in certain, specified, units near the Korean Demilitarized Zone (DMZ)). 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); 76 Fed. Reg. 4245-01 (Jan. 25, 2011). Second, the veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). Brock v. Brown, 10 Vet. App. 155, 162 (1997). Prostate cancer is one of the specified diseases. Effective February 24, 2011, regulations were amended extending a presumption of herbicide exposure to certain veterans who served in Korea. Specifically, if a veteran was stationed along the Korean DMZ from April 1, 1968 to August 31, 1971, Agent Orange exposure is presumed. See the VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, § C.10.p. The Department of Defense (DOD) has published a list of units recognized as having served along the DMZ during this time period. Id. The Veteran did not serve in a unit on this list and therefore Agent Orange exposure may not be presumed on this basis. Id. The VA Adjudication Procedures Manual provides that specific development must be taken to verify herbicide exposure on a factual basis if the Veteran served in Korea with a unit not recognized by DOD as having been located on or near the DMZ. See M21-1MR, Part IV, Subpart ii, Chapter 2, § C.10. The RO submitted an inquiry to the Joint Services Records Research Center (JSRRC) in September 2011 to determine whether the Veteran's unit, the 43rd Surgical Hospital unit, was stationed in or near the Korean DMZ from August 1970 to October 1970. JSRRC was unable to locate the 1970 unit records for the 43rd Surgical Hospital. However, it coordinated with the U.S. Army Center of Military History to determine that the 43rd Surgical Hospital was located at Camp Red Cloud in 1970, approximately 19 miles from the DMZ. JSRRC was unable to document the use, storage, spraying, or transportation of herbicides at Camp Red Cloud, or any specific duties performed by the 43rd Surgical Hospital unit members along the DMZ. In his November 2011 appeal, the Veteran contended that he was stationed at Camp Mosier in Uijongbu, Korea from August 1970 to July 1971. However, the Veteran's Installation Clearance Record from July 1971 contains the stamp "Camp Red Cloud Area." Regardless of whether the Veteran was located at Camp Mosier or Camp Red Cloud, DOD has specifically enumerated, by unit, which units operated in or near the DMZ for the purposes of conceding herbicide exposure under Section VI.2.B.6.bb of the VA Adjudication Procedures Manual. And the Veteran's unit, the 43rd Surgical Hospital, is not so enumerated. While the evidence of record shows that the Veteran has prostate cancer, which is one of the specific diseases listed in 38 C.F.R. § 3.309(e), he did not serve in any of the enumerated units listed in the VA Adjudication Procedure Manual and herbicide exposure may not be presumed. Further, JSRRC was unable to find any evidence for direct service connection; i.e., indicating that the Veteran was actually exposed to herbicides while at or near the DMZ. There is, in fact, no evidence to establish that the Veteran was actually exposed to herbicides during service. While the Veteran asserted in his November 2011 Form 9 that he travelled to the DMZ, he did not provide any evidence of direct exposure to Agent Orange. Given that the in-service element is not met, there is no need to discuss the nexus element of the Veteran's service connection claim. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for prostate cancer is not warranted. ORDER Service connection for prostate cancer, to include as due to exposure to herbicides, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs