Citation Nr: 1337878 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 06-37 414A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for prostate cancer, to include as secondary to service-connected prostatitis and herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active duty service from February 1969 to October 1972. The Veteran's service personnel records reveal active duty in Thailand. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans (VA) Regional Office (RO) in Nashville, Tennessee. In March 2010, the Veteran testified before the undersigned during a travel board hearing. A transcript of the proceeding has been associated with the claims file. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The evidence of record does not indicate the Veteran served in the Republic of Vietnam nor is there competent or persuasive evidence of herbicide exposure during his service in Thailand. 2. Prostate cancer was not present in service or for many years thereafter, has not been shown to be related to active duty, and has not been shown to be proximately due to or aggravated by the Veteran's service-connected prostatitis. CONCLUSION OF LAW Prostate cancer was not incurred in active service, may not be presumed to have been incurred in active service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant 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 claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the Court held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by letters sent to the Veteran in October 2004, June 2010 and April 2012. These letters addressed all of the notice elements, although the Board recognizes that complete notice was not sent prior to the initial unfavorable decision by the RO in December 2004. The claim, however, was subsequently readjudicated, most recently in a June 2013 supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Moreover, any defect in the timing of the notice was harmless error as service connection is being denied on the merits, and no rating or effective date is being assigned. Therefore, the Board finds that VA has fulfilled its duty to notify. VA has also satisfied its duty to assist the Veteran at every stage of this case. The Veteran's service treatment and service personnel records, all identified post-service VA and private medical records, the Veteran's hearing testimony, and his and his wife's written lay statements are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran underwent VA examination in August 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the August 2010 report was deemed by the Board to be partially inadequate, the Board remanded the matter to ensure a fair evaluation of the Veteran's claim. Following the additional development, the Board finds that the VA opinion obtained in April 2012 is adequate, as it is predicated on a reading of the service and post-service medical records in the Veteran's claims file and takes into consideration the Veteran's competent lay statements regarding the onset, frequency and severity of his symptoms. The opinions, when considered as a whole, take into account all of the pertinent evidence of record, to include the Veteran's service and post-service records and his lay statements, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. There is adequate medical evidence of record to make a determination in this case. The Board recognizes that pertinent provisions of the VA Adjudication Manual set forth procedures that VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam, particularly in Thailand and in other locations. See M21-1MR, Part IV.ii.2.C.10(o), (q). Specifically, the M21-1MR provides that several items of development should be performed, including considering the Memorandum on 'Herbicide Use in Thailand during the Vietnam Era,' notifying the Veteran appropriately concerning Thailand herbicide exposure; and if necessary, requesting verification of herbicide exposure from the United States Joint Services Records Research Center (JSRRC). See M21-1MR, Part IV.ii.2.C.10(q); see also VBA Fast Letter 09-20, "Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era." The M21-1MR also provides that several items of development should be performed when the Veteran claims herbicide exposure in other areas, to include asking the Veteran for the approximate dates, location, and nature of the alleged exposure. See M21-1MR, Part IV.ii.2.C.10(o). If sufficient information cannot be obtained from the Veteran to meet JSRRC guidelines, then the RO is to produce a formal memorandum for the file documenting efforts to obtain information, and then forward the claim for rating activity. The RO sent appropriate notice to the Veteran in June 2009, to include providing him with the Memorandum, 'Herbicide Use in Thailand during the Vietnam Era;' however, the Veteran did not provide a response. The RO and Appeals Management Center (AMC) later, pursuant to Board remand instructions, contacted the U.S. Air Force Historical Research Agency and JSRRC, neither of which could confirm the Veteran's presence in the Republic of Vietnam during his active service. As a result, the AMC produced a formal memorandum in June 2013 documenting that the above procedures were followed. Accordingly, the Board finds the AMC substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC (statement of the case) and SSOCs (supplemental statements of the case), which informed them of the laws and regulations relevant to this claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also 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. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) . Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If a veteran was exposed to a herbicide agent during active military, naval, or air service, prostate cancer shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(ii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.307(a)(6)(ii) requires that prostate cancer have become manifest to a degree of 10 percent or more at any time after service. 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, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). In addition, it has been determined that there was significant use of herbicides on the fenced perimeters of military bases in Thailand that was intended to eliminate vegetation and ground cover for base security purposes. See Department of Defense article, Project CHECO Southeast Asia Report: Base Defense in Thailand. Therefore, certain veterans would have been exposed to herbicides while stationed at these bases, depending on the nature of their duties. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that his prostate cancer, which is shown in the medical evidence, was caused by his exposure to herbicides in service. Initially, the Veteran reported that he was exposed to herbicides during his tour in Thailand due to being nearby aircraft that was used to spray herbicides in Vietnam. Later, the Veteran reported having stopped in Vietnam on his way to a hospital in the Philippines, and another time on his way from Thailand to the United States. He reported a mechanical problem on the aircraft he was traveling in, which had them delayed in Vietnam, during which time he stepped off of the aircraft and onto the ground in Vietnam. In the alternative, the Veteran has asserted that his prostate cancer was caused by his service connected prostatitis. The Veteran submitted internet articles suggesting that inflammation caused by prostatitis may increase the risk of prostate cancer in patients. Initially, the Board finds that the Veteran was not exposed to Agent Orange during his tour in Thailand. The Director of Compensation and Pension Service's Memorandum entitled "Herbicide Use in Thailand during the Vietnam Era" indicates that herbicides were used and stored in Thailand from April to September 1964 and not at any point thereafter. The Veteran had active duty service from February 1969 to October 1972. Thus, herbicide use in Thailand was prior to the Veteran's period of active service. This Memorandum also indicates that the small-scale herbicide usage to clear weeds in and around the bases and airstrips in Thailand were using commercial products and not Agent Orange. There are no presumptions based on exposure to commercial herbicides. If the Veteran was exposed to commercial herbicides in Thailand, his exposure risk would be similar to exposure to the commercial herbicides sold and used in the United States. Service connection for prostate cancer on a presumptive basis based upon the Veteran's service in Thailand, therefore, is not warranted. As to a presumption of herbicide exposure during service in the Republic of Vietnam, the Board finds that the Veteran did not have service in the Republic of Vietnam. The Veteran contends, in part, that he incurred prostate cancer due to herbicide exposure as a result of a brief stopover in Vietnam during one of two tours of duty in Southwest Asia. Specifically, the Veteran has reported that on three occasions he flew into Vietnam and that on one occasion he stepped off the aircraft due to mechanical problems. Service personnel records show that the Veteran was a weapons mechanic in the Pacific Air Forces and that he had service in Thailand between 1970 and 1972. Specifically, personnel records show service with the 307th MMSq. at the U-Tapao Airfield in Thailand. In May 2010, the Board requested that the RO/AMC attempt to locate the Veteran's available unit records for a more detailed description of his job duties, to include possible service in and/or over Vietnam. The personnel records have since been reviewed and contain no documentation related to travel information or temporary duty orders (TDY). In July 2010, the National Personnel Records Center (NPRC) stated that it was unable to determine whether or not the Veteran served in the Republic of Vietnam. In a May 2012 statement, the Veteran stated that he disembarked from an airplane in Vietnam in October 1971. In a May 2013 statement, the Veteran indicated that his dates of travel to Vietnam are "the same dates that [he] departed Thailand on PCS Orders back to the United States." Further, the Veteran indicated that if his personnel records do not include TDY orders sending him for medical treatment in the Philippines, then his third date of entry into Vietnam is the same day as his first day of treatment at the hospital. In May 2013, the U.S. Air Force Historical Research Agency confirmed that it could not verify the route of any aircraft once it left the squadron. A June 2013 follow-up notes that civilian aircraft performed these duties and that "[n]ormally, flights to Thailand were filled with only personnel who were going to Thailand and therefore there would be no reason to stop off in Vietnam." Further, it was noted that the civilian airlines are under no obligation to provide information to the Air Force history program. In June 2013, the Defense Personnel Records Information Retrieval System (DPRIS) also confirmed that the Veteran's unit's history does not include any discussion of his medical treatment or transportation off of the base, nor does it include any confirmation of unit personnel landing in the Republic of Vietnam. Following this development, the AMC issued a formal finding regarding the lack of information needed to corroborate the Veteran's herbicide exposure. The AMC recognized the Veteran's May 2013 statement and confirmed that his first date of treatment in the Philippines was May 28, 1972, and that there was no confirmation of the Veteran's landing in Vietnam on his way to the Philippines, and no ability, based upon the findings of the U.S. Air Force Historical Research Agency or DPRIS, to confirm any such stop in Vietnam. With the receipt of negative information from the NPRC, the U.S. Air Force Historical Research Agency, and DPRIS, the Board finds that the evidence of record does not reveal that the Veteran had qualifying service in the Republic of Vietnam. Therefore, because neither the Veteran's service personnel records, nor investigations of his assertions of setting foot in Vietnam, corroborate Vietnam service, the Board finds in-service exposure to herbicides cannot be presumed on this basis. Despite VA examiners declaring that the Veteran's prostate cancer is related to his reported herbicide exposure in Vietnam, the Veteran's claim for service connection for prostate cancer cannot be granted on a presumptive basis due to herbicide exposure in the Republic of Vietnam during the Vietnam Era. The Veteran has also suggested that his prostate cancer was caused by his service-connected prostatitis. Private medical records reflect that the Veteran was diagnosed with prostate cancer in 2001. In May 2012, the Veteran submitted a statement along with several articles printed from the Internet. The articles suggest that prostate inflammation, a symptom of prostatitis, is a suggested factor in the development and progression of prostate cancer. The Veteran suggested that "there is more than a causal connection between chronic inflammation of the prostate and prostate cancer." In August 2010, a VA examiner confirmed the Veteran's history of chronic prostatitis with a later diagnosis of prostate cancer. The examiner, a medical doctor, was not aware of any link between chronic prostatitis and prostate cancer. In an April 2012 addendum, a different VA examiner clearly stated that the Veteran's prostate cancer was not caused by or aggravated by his service-connected prostatitis. The examiner explained that complications from prostatitis may include epididymitus, abscess, and bacteremia, but there is no direct evidence that prostatitis can lead to prostate cancer. Further, the examiner noted that prostatitis can contribute to elevations in PSA levels by virtue of inflammation, but that this elevation should resolve with treatment of prostatitis and does not signify prostate cancer unless there is a concomitant related process. The examiner pointed to a study of the Mayo Clinic for support of this opinion. The Board recognizes that the Veteran sent in an article suggesting that inflammation of the prostate is a suggested factor in the development of prostate cancer; however, the VA examiner that analyzed the Veteran's prostate cancer cause found that no such connection exists. The VA examiner's opinion was based upon a review of the Veteran's medical history, to include the prior VA examination report, as well as a discussion of medical concepts supported by medical literature. The Board finds the VA examiner's opinion to be of greater probative value than a generic medical article that does not pertain to the Veteran in particular, and which merely states that a certain symptom of prostatitis is "suggestive" of indications of prostate cancer. The VA examiner specifically spoke to this suggestion and found that a causal connection between prostatitis and prostate cancer in the Veteran could not be found. Thus, the preponderance of the evidence in this case is against a finding that the Veteran's service-connected prostatitis caused or aggravated the Veteran's prostate cancer. Service connection, therefore, is not warranted under 38 C.F.R. § 3.310. Despite these findings, when a Veteran does not qualify for service connection on a presumptive basis or a secondary basis, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, service treatment records do not demonstrate complaints of, treatment for, or a diagnosis related to prostate cancer. In fact, the post-service evidence of record does not reflect a diagnosis of prostate cancer until December 2001, nearly thirty years following separation from service. 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). Furthermore, the Veteran does not assert that he has experienced symptomatology related to prostate cancer during service, or anytime prior to 2001. Therefore, the evidence of record does not support a finding that the Veteran's prostate cancer was incurred in service. Thus, service connection is also not warranted under 38 C.F.R. § 3.303. In conclusion, the competent evidence does not reveal a nexus to prostate cancer occurring in service. Further, the competent evidence does not indicate that the Veteran's prostate cancer was caused by or aggravated by his service-connected prostatitis. Moreover, because the Veteran is not shown to have service in the Republic of Vietnam, or in Thailand during the relevant time period, a presumption of service connection for prostate cancer based upon in-service exposure to herbicides is not warranted. While the Board has considered the Veteran's lay contentions as to the etiology of his current disability, the Board has accorded greater weight to the balance of the probative medical evidence of record. Although the Veteran might sincerely believe that his prostate cancer is related to service or to his service-connected prostatitis, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. As such, service connection must be denied. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 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 Veteran's claim, that doctrine is not applicable concerning this issue. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for prostate cancer, to include as secondary to service-connected prostatitis and herbicide exposure, is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs