Citation Nr: 1336455 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-17 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for prostate cancer, including due to exposure to Agent Orange or other herbicides. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran reported active service from May 1972 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran requested a video conference hearing in his substantive appeal. A hearing was scheduled for May 17, 2013. The Veteran did not appear for the hearing and no good cause has been presented for not appearing. Therefore, the request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704 (2013). FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Korea during the presumptive period between April 1, 1968, and August 31, 1971; exposure to Agent Orange may not be presumed. 2. The most probative evidence of record shows that the Veteran was not exposed to Agent Orange or other herbicide agents during active duty. 3. The competent evidence of record does not demonstrate the Veteran's prostate cancer is related to service or manifested to a compensable degree within one year of separation from service. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by active duty and may not be presumed to have been incurred in active duty, including due to exposure to Agent Orange or other herbicides. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1154, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, the United States Court of Appeals for Veteran's Claims Court (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. 18 Vet. App. 112, 120-21 (2004). In a letter dated January 2008, VA satisfied its duty to notify the Veteran. Specifically, the RO notified the Veteran of the information and evidence necessary to substantiate the claims; information and evidence that the VA would seek to provide; and information and evidence that the Veteran was expected to provide. The January 2008 letter also notified the Veteran about the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013) to assist the Veteran. The Veteran's service treatment records, personnel records, and VA treatment records are of record. The record does not indicate and the Veteran has not asserted that additional evidence relevant to the service connection claim being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although no VA examination has been obtained in conjunction with the claim of service connection for prostate cancer, the Board finds that an examination was not required. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Generally, a VA medical examination is required for a service connection claim only 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 claimant 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) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The standards of McLendon are not met in this case. The Board acknowledges that the Veteran was diagnosed with prostate cancer in 2007. However, the evidence of record is against a finding that the Veteran was exposed to herbicides during his active duty military service, and the competent evidence does not otherwise relate the Veteran's prostate cancer to his service. The Veteran's service treatment records do not demonstrate complaints of or treatment for prostate cancer, or symptoms thereof during active duty or for many years after service. Moreover, the Veteran does not claim that he had prostate cancer, during service or in the years immediately after service. As a result, the Board finds the evidence of record does not demonstrate that the Veteran's prostate cancer may be associated with an in-service event, injury, or disease. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, a VA examination is not warranted. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As there is no indication of the existence of additional evidence necessary to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Analysis The Veteran and his representative assert that the Veteran's prostate cancer is related to herbicide exposure during his service in the Republic of Korea. The Veteran reports that he performed exercises and patrols in the fields along the demilitarized zone (DMZ) and throughout the forward deployment area south of the DMZ. The Veteran and his representative assert that although the Veteran did not serve during the dates established for presumptive service connection, the use of Agent Orange on the DMZ continued to affect service members who served there after the presumptive period. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where a physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d) (2013). Other specifically enumerated disorders, including malignant tumors, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). In this regard, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With regard to herbicide exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (i.e., January 9, 1962 to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3) (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam era (i.e. January 9, 1962 to May 7, 1975). 38 C.F.R. § 3.307 (2013). For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Additionally, the presumption of herbicide exposure has also been extended to certain Veterans who served in the Republic of Korea. Specifically, 38 C.F.R. § 3.307(a)(6)(iv) (2013) states: A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. Id. The list of diseases associated with exposure to certain herbicide agents is as follows: 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). 38 C.F.R. § 3.309(e) (2013). In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the DMZ, between April 1, 1968 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department records or other sources for the presumption of service connection for a herbicide-related disease to be applicable. Otherwise, exposure to herbicides is not presumed. However, once exposure to herbicides has been established, the presumption of service connection found in 38 C.F.R. § 3.309(e) (2013) for herbicide-related diseases is applicable. In his July 2008 statement in support of claim, the Veteran asserted that he performed exercises and patrols in the fields along the DMZ and throughout the forward deployment area south of the DMZ. The Veteran reported that members of his unit stated that Agent Orange had been sprayed in these areas. The Veteran stated that while in the field, he drank water from local streams and rice paddies, got dirt in his skin and cuts, breathed in dust and sand, ate locally grown food, and had his skin exposed to and cut by vegetation while maneuvering through underbrush. The Veteran contends that he was exposed to Agent Orange through these environmental factors. The Veteran served on active duty from March 1972 to November 1985. The Veteran's service personnel records show that he had one year of foreign service in the Republic of Korea with the U.S. Army, and that his military occupation specialty was infantryman. The evidence does not show that the Veteran served on active duty in the Republic of Vietnam nor does he assert that he had active duty service in the Republic of Vietnam. Furthermore, the evidence of record does not establish nor does the Veteran assert that he had active duty service in the Republic of Korea between April 1, 1968, and August 31, 1971. As a result, in-service exposure to an herbicide agent cannot be presumed as a matter of law. 38 U.S.C.A. § 1116(a)(3) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(a)(6)(iv) (2013). With respect to the Veteran's assertions regarding the effects of Agent Orange or other herbicide agents after the presumptive period, there is no documentation of the presence of herbicides during his service period, and the competent evidence of record does not substantiate the Veteran's claim of exposure. Further, as noted in greater detail below, the evidence of record does not demonstrate that the Veteran is competent to opine as to the direct or indirect effects of the use of herbicide agents. As a result, the Board finds the competent evidence of record does not establish in-service exposure to herbicide agents for the purpose of presumptive service connection. The Veteran does not claim that he was present when herbicides were used. Rather, he asserts that since he was in Korea approximately 14 months after herbicides were used, he should be presumed to have been exposed based on the presence of Agent Orange in the environment. The Board is cognizant of the Veteran's submission of treatise evidence and excerpts regarding the biodegradability of Dioxin, a chemical in Agent Orange. Nonetheless, the presumption of exposure only applies to a Veteran who was served on active duty in Korea between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv) (2013). Accordingly, in-service exposure to herbicides may be not be conceded or presumed. The Veteran has not asserted actual exposure to Agent Orange (i.e. that he was present when Agent Orange was used). Instead, he is attempting to extend the presumptive period for exposure beyond the dates provided for by law. Additionally, the evidence of record indicates that the Veteran was not diagnosed with prostate cancer until 2007, approximately 22 years after his separation from service. As such, the Veteran's prostate cancer may not be presumed to have been incurred during service, as it did not manifest to a degree of 10 percent within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Therefore, service connection on a presumptive basis for chronic diseases is also not warranted. Notwithstanding, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir. 1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). The Board finds that the criteria for service connection on a direct basis are not met. VA treatment records show that the Veteran was diagnosed with prostate cancer in September 2007. The Veteran's service treatment records do not demonstrate complaints of, treatment for, or a diagnosis of prostate cancer during active service. Further, the Veteran has not asserted that his prostate cancer began during active service or has been continuously present since his separation from service. The first documented diagnosis of prostate cancer was in a September 2007 VA treatment record. In this case, the approximately 22 years without complaints or treatment weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his condition). Here, the Veteran's claim centers on a relationship between his current prostate cancer, and his assertions of in-service exposure to herbicides. However, the Veteran has not established, or even suggested, actual exposure to Agent Orange. In the absence of evidence establishing exposure to Agent Orange there is no basis for service connection. The Veteran has not asserted any other cause from service for his prostate cancer. There is no indication in any of the Veteran's post-service medical treatment records that his prostate cancer is related to active service. Nor have any of the Veteran's post-service VA treating physicians related his prostate cancer to active service. The Veteran has not presented competent evidence in support of this claim, and as noted above, VA has satisfied the duty to assist with respect to obtaining all identified and available records. The only evidence of record indicating an association between prostate cancer, and active duty service are the Veteran's own assertions and treatise evidence regarding the biodegradability of Dioxin and its potential health effects. The Board is cognizant of the Veteran's submission of treatise evidence regarding the biodegradability of Dioxin, a chemical in Agent Orange, as well as treatise evidence regarding the health effects of Agent Orange. However, since the Veteran has not asserted exposure to Agent Orange, other than by attempting to extend a presumption of exposure beyond the time period provided in law, the treatise evidence is not relevant because exposure to Agent Orange has not been established. In conclusion, the weight of the evidence does not demonstrate that the Veteran served within the land borders or internal waterways of Vietnam, or that he served in or near the Korean DMZ between April 1, 1968, and August 31, 1971. Therefore, exposure to herbicides is not presumed. The evidence of record also does not demonstrate that the Veteran was actually exposed to herbicides in active service, and therefore service connection is not warranted on a presumptive basis. Finally, the competent evidence of record does not indicate the Veteran's current prostate cancer, which was first shown approximately 22 years after separation from active service, is related to service. Accordingly, the claim for service connection for prostate cancer, including due to exposure to Agent Orange or other herbicides, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for prostate cancer, including due to exposure to Agent Orange or other herbicides, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs