Citation Nr: 1338247 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-20 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Army from June 1985 to April 1999. He had Army National Guard service from May 1970 to June 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file revealed additional evidence in the form of an Appellant's Brief dated October 2013. FINDING OF FACT The Veteran did not serve in the Republic of Vietnam (Vietnam) during the Vietnam era and the evidence does not show that the Veteran was otherwise exposed to herbicides during his military service. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition, the notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, VA's duty to notify has been satisfied through the notice letters dated October 2007 and January 2008, which fully addressed all notice elements. The letters informed the Veteran of what evidence was required to substantiate his claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. The January 2008 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. A VA examination was not provided in conjunction with the Veteran's service connection claim for prostate cancer, and the evidence of record does not warrant one. VA has a duty to provide an examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). For reasons explained below, the Board finds that a VA examination with nexus opinion is not necessary, as there is no competent and credible evidence establishing the incurrence of an in-service event, injury, or disease, including exposure to herbicides. The Veteran's assertions alone are insufficient to trigger VA's duty to provide such an examination and opinion. Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Law and Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Federal Circuit has held that while the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Except as otherwise provided by law, the Veteran has the responsibility to present and support his claim for benefits. In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). It is not enough, however, that an injury or disease occurred in service; there must be a chronic disability resulting from that injury or disease. To prevail on the issue of service connection, there must be competent evidence of "(1) the existence of a present disability; (2) 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a presumptive basis for certain chronic diseases listed in 38 C.F.R. §3.309(a), including malignant tumors. Unless clearly attributable to intercurrent causes, presumptive service connection may be awarded if a listed chronic disease manifests itself and is identified as such either in service or within the specified presumptive period, and the Veteran presently has the same disease. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after separation is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. Further, service connection on a presumptive basis is available for certain diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The diseases associated with herbicide exposure for purposes of this presumption are specified by statute and regulation, and include prostate cancer. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 3.309(e). A veteran who, during active service, served in 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 an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii) . "Service in Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a). VA's General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic of Vietnam. See VAOPGCPREC 27-97. The Federal Circuit has upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VA has also received from the Department of Defense (DoD) a listing of locations outside of Vietnam where Agent Orange was used or tested over a number of years. Once exposure at these locations has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. Here, the Veteran's service records show that he served in the Army from June 1985 to April 1999, with previous service in the Army National Guard from May 1970 to June 1985. The Veteran did not have service in Vietnam, and he does not assert that he served in Vietnam. The Veteran instead maintains that he was exposed to herbicides during jungle training at Fort Sherman's Jungle Operations Training Center (JOTC) in Panama in July 1976, October 1982, July 1987, and June 1988. See January 2008 statement. In support of his claim, the Veteran provided evidence of his jungle training at the JOTC in the form of copies of training certificates, assignment records, permanent orders, and records of service from the Army and National Guard. The Veteran also submitted a statement dated in February 2008 from a platoon sergeant who attended all of the JOTC trainings noted above and confirmed the Veteran's attendance. Additionally, the Veteran submitted a number of Internet articles about herbicide use in Panama, including Agent Orange, during the 1960s and 1970s. See January 2008 Veteran statement and accompanying appendices. Also included were several articles discussing the JOTC at Fort Sherman, as well as the training that was provided there. Id. The Board has reviewed and considered this evidence, including the accounts of herbicide use in Panama. The Board has also considered the DoD's comprehensive listing of herbicide tests and storage outside of Vietnam. The registry, which identifies herbicide tests and storage dating back to the 1940s, does not show that herbicides were ever used or stored in Panama. The Board finds that the Internet articles submitted by the Veteran, to the extent that they are to be accorded some probative value, are outweighed by the official report of herbicide testing and storage maintained by the DoD. Thus, because the Veteran did not have service in Vietnam, or in a location outside Vietnam where herbicide testing and storage has been established, the Veteran is not entitled to presumptive service connection based on exposure to certain herbicide agents. Nevertheless, even if a Veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As previously discussed, entitlement to service connection on a direct basis requires competent evidence of a current disability, in-service incurrence or aggravation of a disease or injury, and medical evidence of a nexus between the current disability and service. The Veteran's diagnosis of prostate cancer fulfills the first requirement; however, based on the evidence of record, the Board finds that the second and third requirements are not met. With respect to the second requirement, the Veteran alleges injury through exposure to herbicides during jungle training in Panama. There is, however, no official service department documentation, or any other persuasive evidence, to support this claimed in-service injury. As noted above, the Veteran submitted numerous Internet articles pertaining to the use of herbicides in Panama in the 1960s and 1970s. This evidence, however, does not establish that the Veteran, himself, was exposed to herbicides while training in Panama. The Veteran has also submitted a number of personal statements in support of his claim. While the Veteran is competent to speak of his experiences during service, the Board does not find his contentions of exposure to Agent Orange to be competent. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). In his January 2008 statement, the Veteran asserted that he was exposed to Agent Orange while swimming in and drinking contaminated river water during training. The Board finds that the Veteran's statements regarding his training experiences to be credible; however, the Veteran is not competent to report that the water he was exposed to during training was contaminated with Agent Orange or any other herbicide, because he does not have personal knowledge of such facts and circumstances. The Veteran also asserted that "hundreds of barrels" of Agent Orange were shipped to and used in Panama during the 1960s and 1970s. These assertions, however, are based on Internet and media accounts of herbicide use in Panama, rather than any direct knowledge of such events or personal involvement in the transportation, receipt, or distribution of herbicides in Panama. Because the Veteran lacks the requisite knowledge or experience, the Board finds that he is not competent to report that herbicides were shipped to or sprayed in Panama. The Board, therefore, concludes that evidence of record does not support a finding that the Veteran was exposed to herbicides during service. With respect to the third requirement, the evidence does not establish a nexus between the Veteran's service and his prostate cancer. First, it is not alleged that prostate cancer was present in service, and the Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses of prostate cancer. Indeed, the Veteran's initial diagnosis of prostate cancer came in August 2007, more than 8 years after his separation from active duty. See August 2007 pathology report. Nonetheless, the Veteran maintains that he developed prostate cancer as a result of his military service. Lay evidence may be competent to establish medical etiology or nexus in certain circumstances; however, the Board can only give lay evidence the weight to which it is entitled. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Conclusory, generalized lay statements suggesting a nexus between a current disability and service are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). While the Veteran is competent to testify about his symptoms or facts or events that are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training. Layno, supra. The Board finds the question of whether there is a relationship between the Veteran's prostate cancer and his military service to be complex in nature. As stated, a lay person is competent to offer testimony regarding symptoms capable of observation, but a lay person is not competent to provide opinions with regard to complex medical questions. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Diseases such as prostate cancer fall outside the realm of common knowledge of a lay person and are diagnosed and treated by professionals with specialized medical knowledge. There is no evidence that the Veteran has the requisite medical knowledge to administer diagnostic tests, interpret test results, or attribute his prostate cancer to any specific instance of his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, while the Veteran is competent to describe his cancer symptoms or other facts or events within the realm of his personal knowledge, he has offered only conclusory statements and is not competent to opine on the complex medical question of etiology or aggravation. Therefore, based on the entirety of the evidence of record, the Board finds that entitlement to service connection cannot be granted on a direct basis. As discussed, the Veteran's claim fails because there is no persuasive evidence of in-service incurrence or aggravation of a disease or injury, and no competent evidence of a nexus between the two. Finally, the Board has considered whether presumptive service connection can be established under 38 C.F.R. § 3.309(a) (malignant tumors). The regulation provides that where a Veteran served for at least 90 days during a period of war or after December 31, 1946, as this Veteran did, and the disease manifests to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no evidence that prostate cancer manifested at all within one year of April 1999, the date of separation from service. Rather, the medical evidence of record indicates the Veteran received a diagnosis of prostate cancer in August 2007. Consequently, because the Veteran's prostate cancer manifested more than one year after separation from service, the Board is unable to grant entitlement to service connection on a presumptive basis. In sum, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for prostate cancer, to include secondary to herbicide exposure, and there is no doubt to be otherwise resolved. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for prostate cancer, to include secondary to herbicide exposure, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs