Citation Nr: 1337677 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-18 897A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service connected disability. 2. Entitlement to service connection for residuals of prostate cancer, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to February 1970 and from January 1991 to March 1991. Post service, he had training in the Army Reserves for many years. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office in a Roanoke, Virginia that, among other thing, denied service connection for prostate cancer, to include as due to Agent Orange exposure, a right knee disability and a low back disorder. By rating action dated in May 2010, service connection for right knee patellofemoral syndrome and osteoarthritis was granted. This is the full grant of this benefit sought on appeal and it is no longer for appellate consideration. Following review of the record, the issue of entitlement to service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Prostate cancer was first manifested many years after discharge from active duty and is not related to service. 2. The Veteran did not have visitation in the Republic of Vietnam; exposure to herbicides/Agent Orange is not presumed. 3. Prostate cancer is not related to claimed Agent Orange exposure. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in March 2008, September 2008, January 2009 and several times thereafter of the information and evidence needed to substantiate and complete the claim, to include notice of what evidence the claimant could provide in support of the claim, the evidence VA would attempt to obtain, and how disability ratings and effective dates are determined. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, a VA examination was not performed with respect to the claim for prostate cancer. VA's duty to assist includes providing a medical examination when indicated to decide a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). This development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App. 79, 83-86 (2006). Here, however, as discussed below, the evidence does not establish any in-service event or symptoms, does not show that cancer manifested within one year of active duty, and does not demonstrate that the Veteran has the qualifying service that would entitle him to the benefit sought. As such, no VA examination is necessary. The Board finds no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim of entitlement to service connection for prostate cancer is ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110 (West 2002 & Supp 2013); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2013). Where a veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of at least 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such a disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp 2013); 38 C.F.R. § 3.307, 3.309 (2013). VA regulations provide that if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be service connected if the requirements of § 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 § 3.307(d) are also satisfied. The diseases listed shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012), 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West 2002 & Supp. 2013);38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 501(a), 1116 (West 2002 & Supp. 2013); 38 C.F.R. § 3.309(e) (2013). 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. 38 C.F.R. § 3.307(a)(6)(iii) (2013). A veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. Id. In May 2008, the Federal Circuit held that the interpretation by the Department of Veterans Affairs (VA) of the phrase "served in the Republic of Vietnam," which required the physical presence of a veteran within the land borders of Vietnam during service was a permissible interpretation of 38 U.S.C.A. § 1116(a)(1)(A) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.307(a)(b)(iii) (2013). The United States Supreme Court declined to review the case and the decision of the Federal Circuit in Haas v. Peake, 525 F. 3d 1168 (Fed. Cir. 2008) is now final. Factual Background and Legal Analysis The Veteran's service treatment records reflect no treatment or reference to prostate complaints or any disorder. The genitourinary system was evaluated as normal on separation examination in November 1969. A claim of service connection of prostate cancer was received in February 2008. In extensive private clinical reports dating from 2006 and a medical report dated in October 2007, the Veteran was reported to have undergone radical prostatectomy in October 2006 for clinically localized prostate cancer diagnosed in 2006. The Board thus points out that there is no evidence that prostate cancer had its onset during service or that a malignancy was manifested to a degree of 10 percent or more within one year of discharge from active duty. Prostate cancer was first clinically demonstrated many years after discharge from active service in service. Therefore, service connection for prostate cancer may not be granted either directly or presumptively to service pursuant to 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). The appellant does not argue, however, that prostate cancer had its onset in service or was manifested within one year thereof. Rather, he asserts that prostate cancer was precipitated by exposure to Agent Orange in Vietnam for which the presumption of service connection applies for presumed exposure to Agent Orange. He contends that while stationed in Germany between 1967 and 1968, he was sent on travel duty to Vietnam for a period of 30 days where he served as a vehicle mechanic and repairman at Wunder Beach, Vietnam. He maintains that he recalls a great deal of herbicide spraying while he was there and that he commented to fellow service members that this burned and irritated his skin. A statement dated in May 2008 was received from an affiant, W.S.H., who attests to serving with that appellant at Wunder Beach in the 83rd Transportation Unit where they were often exposed to herbicides during frequent sprayings. In this regard, however, the Board finds that the Veteran did not have service in the Republic of Vietnam. His DD-214 and personnel records reflect that he had foreign service in Germany from September 1968 to February 1970. He received no medals or citations indicative of service in Vietnam, nor does his principle duty list refer to any Vietnam-related visitation. Review of the record discloses that extensive research was performed to confirm his reported Vietnam service. Memorandums for the record dated in January 2011, February 2012 and October 2012 document the numerous attempts to verify his service in Vietnam. In the most recent memorandum, a conclusion was rendered to the effect that there was no available evidence that the Veteran was assigned to the 83rd Transportation Unit as he reported, and that even if he were, there was no available evidence that the unit served in Vietnam or at Wunder Beach, nor were any personnel from that unit sent to that location. It was noted that there was documentation that his affiant, W.S.H., did indeed serve in Vietnam, but that there was no evidence to corroborate his statement that the Veteran served with him there. It was incidentally pointed out that the affiant and the Veteran did serve in the same unit between January 1991 and March 1991. In view of the above, the Veteran cannot demonstrate actual duty or visitation in the Republic of Vietnam and exposure to herbicides/Agent in Vietnam is not conceded. The Veteran asserts that he went to Vietnam and was exposed to Agent Orange therein. Lay evidence must be considered when a Veteran seeks disability benefits. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board recognizes that lay assertions may serve to establish 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. § 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this instance, however, the Veteran's statements alone cannot be accepted as competent evidence. This is because the question of whether he has prostate cancer related to Agent Orange necessarily turns on whether he can demonstrate the requisite service to support the presumptive benefit. The Board finds that despite his and his affiant's statements to the contrary, there is no documentation of his ever having visitation in Vietnam despite exhaustive searches in this regard. As such, the Board must conclude that the Veteran lacks qualifying service in Vietnam and corroborating evidence of exposure to herbicides therein. Presumption of herbicide exposure is warranted if the conditions of service involved duty or visitation to the Republic of Vietnam that is not demonstrated in this case. 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, as exposure to Agent Orange is not conceded, it is unnecessary to discuss whether prostate cancer may be presumed to be related thereto. In summary, the Board concludes that there is no reliable and/or probative evidence indicating that the Veteran has prostate cancer related to service or to any incident therein. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim and service connection for prostate cancer is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for postoperative residuals of prostate cancer is denied. REMAND The Board finds that further development is warranted with respect to the claim of entitlement to service connection for a low back disorder. The Veteran asserts that he has a low back disorder as the result of service or injury during his post service Reserve training. The Board would also point out that the appellant is service connected for bilateral knee disability, both status post total knee replacement. The record reflects that in a clinical report dated in November 2012, the Veteran's private physician, A.W.W., M.D., wrote that posttraumatic arthritis of the right knee had resulted in a significant gait impairment and abnormal mechanics secondary to favoring the right knee. As such, the Board finds that service connection for a low back disorder on a secondary basis is also for consideration. See 38 C.F.R. § 3.310 (2013). The Board points out that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). It appears that service connection of a low back disorder on a secondary basis has not been considered by the RO. Additionally, the Veteran has not had a VA examination that addresses service connection on any basis. The Board is prohibited from making conclusions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). As such, the Veteran must be afforded a VA examination, to include a medical opinion that takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran VCAA notice as to what is required to establish service connection on a secondary basis, to include aggravation. 2. Schedule the Veteran for a VA orthopedic examination by an appropriate physician to determine whether any diagnosed low back disorder is related to service, or has been caused or aggravated (permanently made worse) by service-connected bilateral knee disabilities. The claims folder and access to Virtual VA must be made available to the examiner, as appropriate. The clinical findings must be reported in detail. Following examination and review of the evidence, the examiner must specifically opine a) whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran has a current low disorder that is directly related to or had its onset during active duty; b) there a 50/50 probability or better that current back disability is due to an injury that occurred during the appellant's reserve training; or c) whether it is at least as likely as not a low back disorder is proximately due (secondary) to or the result of service-connected knee disabilities; or d) whether it is at least as likely as not any diagnosed back disorder is chronically and/or permanently increased in severity (aggravated) to any degree by bilateral knee disability; or e) whether current low back disability is more likely than not of post service onset and unrelated to a active service, reserve training or a service-connected disorder. The examination report must include well-reasoned rationale for all opinions and conclusions reached. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean within the realm of possibility, rather that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 3. The RO must ensure that the medical report requested above complies with this remand and its instructions. If the report is insufficient, or if a requested action is not taken or is deficient, it should be returned for correction. 4. After taking any further development deemed appropriate, re-adjudicate the remaining issue on appeal. If the benefit is not granted, provide the appellant and his representative a supplemental statement of the case before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs