Citation Nr: 1338933	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  13-27 530	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for prostate cancer. 


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  



FINDINGS OF FACT

1.  The most probative evidence of record shows that the Veteran did not step foot in the Republic of Vietnam during the Vietnam era or had service on a ship that served in the inland waterways of the Republic of Vietnam during the Vietnam era.

2.  The Veteran did not have actual exposure to Agent Orange or other herbicide agents during his military service.

3.  The most probative evidence of record shows that the Veteran's prostate is not related to service, including his alleged herbicide and asbestos exposure, and there is no evidence of a compensable malignant tumor within one year of service separation.


CONCLUSION OF LAW

Prostate cancer was not incurred in or aggravated by active service and it may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The Veteran must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).  

In this regard, the Board finds that a letter dated in June 2010, before the November 2010 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  If the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above VCAA letter as well as the rating decisions and statements of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

VA has also secured all available pertinent evidence and conducted all appropriate development.  Specifically, the record shows that VA obtained and associated with the claims file all identified and available in-service and post-service records including the Veteran's service treatment records and post-service records from the University of Arizona.

As to VA's duty to help the Veteran verify his claim that he was exposure to Agent Orange while serving on the U.S.S. Mullinnix in the waters off of the Republic of Vietnam including while on fire missions in Da Nang Harbor, the record shows that the RO undertook the following development: it obtained his service personnel records; in November 2010 the RO associated with the claims file an article about the U.S.S. Mullinnix; in November 2010 it obtained a statement from the National Personnel Records Center (NPRC) in which it reported that a search of the Veteran's records uncovered no records of herbicide exposure; also in November 2010 it obtained a statement from the NPRC in which it reported that they were unable to verify if the Veteran had in-country service but that the claimant had served aboard the U.S.S. Mullinnix and it was in the official waters of the Republic of Vietnam from February 28, 1969, to April 5, 1969, April 30, 1969, to June 4, 1969, and July 4, 1969, to July 15, 1969; in August 2010 it obtained a statement from the United States Armed Services Center for Unit Records Research (CURR) (there known as the United States Armed Services Center for Research of Unit Records (USASCRUR) and the United States Army and Joint Services Records Research Center (JSRRC)) which summarized the command history for the U.S.S. Mullinnix for 1969 as to the ships location and activities for this time period; and in November 2010 it obtained another history of the U.S.S. Mullinnix, which also outlined the ships location and activities for October 1962 to July 1972.  

As to the duty to assist in developing the claim based on asbestos exposure, the Board finds that the RO met the M21-1MR requirements by undertaking the above development which included obtaining his service personnel records.  See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases;" Also see Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos."

Given the above actions, the Board finds that VA undertook all needed development in this appeal.  Therefore, the Board finds that VA has no further duty to develop this part of the Veteran's claim.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim").  

The Veteran was not provided a VA examination in connection with his claim.  In this regard, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusorary generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.

Given the above, the Board finds that a remand for a VA examination is not required because service treatment records are negative for the claimed disorder, the post-service record is negative for the claimed disorder for decades after the Veteran's separation from service, the Board finds the lay statements from the Veteran's report regarding a nexus between the current disability and service conclusory generalized statements for reasons that will be explained below, and the Board does not find the lay statements from the claimant regarding continuity of symptomatology competent and credible evidence for reasons that will be explained below.  See 38 U.S.C.A. § 5103A(d); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service when the Board does not find his statements credible); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In summary, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's record including those found in Virtual VA and VBMS.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim 

As an initial matter, the Board notes that in August 2010 the RO received a reply from CURR in connection with its inquiry as to the Veteran's claims that he was exposed to herbicides while serving on the U.S.S. Mullinnix while it was in the waters off of the Republic of Vietnam.  The reply included details of the U.S.S. Mullinnix's location and activities during 1969.  Because this document is a relevant official service department record that existed and had not been associated with the claims file when VA first decided the claim in May 2003, the Board reviews the claim on a de novo basis.  38 C.F.R. § 3.156(c) (2013).

In this regard, the Veteran and his representative contend that the claimant's prostate cancer was caused by exposure to Agent Orange and asbestos while serving on the U.S.S. Mullinnix including in the waters off of the Republic of Vietnam while on fire missions in Da Nang Harbor. 

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 the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  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 if the disability is one that is listed in 38 C.F.R. § 3.309(a) such as a malignant tumor.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including a malignant tumor, 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; 38 C.F.R. §§ 3.307, 3.309.  

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).

As to claims based on asbestos exposure, while the M21-1MR provides some development guidelines, there are no specifically regulations that govern these claims other than 38 C.F.R. § 3.303.  

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 war (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); 38 C.F.R. § 3.307(a)(6)(iii).  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 war period.  38 C.F.R. § 3.307.  For these Vietnam war 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; 38 C.F.R. §§ 3.307, 3.309.  

The list of diseases associated with exposure to certain herbicide agents includes, among other things, prostate cancer.  38 C.F.R. § 3.309(e).  

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 or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable.  Exposure to herbicides is not presumed in such instances.  However, once exposure to herbicides has been shown by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable.

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

As to service connection under the presumptions found at 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e), the Board notes that "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).

In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption.  A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure.  Haas, 525 F.3d at 1193-1194; See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam).  In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196.

As to inland waterways, again, in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii).  See Haas, 525 F.3d at 1187-1190; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97.  "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance.  Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated.  See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k.  Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore.  Id.

Initially, the Board notes that in writings to VA the Veteran did not ever specifically claim that the appellant ever stepped foot in the Republic of Vietnam during his military service.  See, for example, claim dated in May 2010; statement in support of claim received in December 2010; VA Form 9, Appeal to Board of Veterans' Appeals, received in August 2013.  Moreover, while the Veteran's service personnel records and CURR confirmed the fact that the Veteran served on the U.S.S. Mullinnix from March 1969 to August 1970 and the ship sailed in the waters off of the Republic of Vietnam from approximately February 1969 to July 1969, including being on fire missions in Da Nang Harbor during this time, neither the NPRC or CURR were able to uncover any proof that the claimant ever stepped foot in the Republic of Vietnam, that his ship ever docked in the Republic of Vietnam, or that his ship ever sailed in the inland waterways of the Republic of Vietnam during this time.  

The Board also notes that a January 2010 document issued by VA entitled "Compensation and Pension Bulletin" listed the names of vessels that served in the "brown waters" of the Republic of Vietnam and in May 2011, November 2012, and July 2013 VA issued updated lists.  Tellingly, while these documents show that the USS Mullinnix (DD-944) operated on Vung Ganh Rai and Saigon River during August 5-6, 1966, they do not list the Veteran's ship as having served in the "brown waters" of the Republic of Vietnam during the time that he served aboard that ship (i.e., from March 1969 to August 1970).  Additionally, the Board finds that the official records of the ship's movements as provided by NPRC, CURR, and the Compensation and Pension Bulletin more probative than any contrary claims by the Veteran that may be found in the record.  See Evans, supra; Owens, supra.  

The Veteran filed with the RO a January 2009 letter from a Senator in which he reported, in part, that the Board "has agreed that because of the geographical configuration of Da Nang Harbor within the territory of Vietnam, the location should be treated as in-country for purpose of exposure to Agent Orange."  However, the Board is not aware of any such agreement.  Moreover, to the extent that the Senator was referring to an earlier Board decision, and as next noted by the Senator, Board decisions do not have any precedential value.  See 38 C.F.R. § 20.1302 (2012). 

In summary, despite the Veteran's competent and credible statements regarding his having service on the waters off of the Republic of Vietnam including in Da Nang Harbor, the Board nonetheless finds all of this service was on a deep-water naval vessel in the waters offshore Vietnam.  See Haas, supra; VAOPGCPREC 27-97.  Service aboard a ship, such as the U.S.S. Mullinnix even when it sailed in Da Nang Harbor, does not constitute inland waterway service or qualify as docking to the shore.  See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k.  Accordingly, since the Veteran has never claimed and the record does not show that her actually stepped foot in the Republic of Vietnam, and his exposure occurred while serving on the U.S.S. Mullinnix during his deep-water naval service, the Board finds that he is not entitlement to the presumptions found at 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e).  Therefore, the claim of service connection for prostate cancer must be denied on a presumptive basis.  

Given the above, the Board will next consider whether the Veteran is entitled to service connection for prostate cancer on a direct basis.  See Combee.

As to service incurrence under 38 C.F.R. § 3.303(a), as noted above, NPRC confirmed the fact that the Veteran served on the U.S.S. Mullinnix during the time it sailed in the waters off of the Republic of Vietnam from approximately February 1969 to July 1969.  Additionally, the Veteran's DD-214 listed his occupational specialty as boilerman.  Moreover, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as the seeing the coast of Vietnam from the ships deck; using water from Da Nang Harbor to cool-off; and during fire missions seeing insulating materials come off pipes he worked around as a boilerman.  See Davidson.  

As to actual Agent Orange, other herbicide, and/or asbestos exposure, the Board finds that the Veteran is not competent to say that Agent Orange or other herbicides drifted over to the ship, the water he cooled off with had Agent Orange or other herbicides in it, or the insulation he saw come off pipes was asbestos because such a finding requires special training and equipment that the Veteran did not have while on active duty.  Id.  Furthermore, as to the post-service records that reported that the Veteran claimed he was exposed to Agent Orange and asbestos while on active duty, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion.  See Howell v. Nicholson, 19 Vet. App. 535, 539 (2006).

As to having symptoms of or being diagnosed with prostate cancer while on active duty, the Board notes that the Veteran's service treatment records, including the August 1970 separation examination, are negative for complaints or treatment for symptoms of and/or a diagnosis of prostate cancer.  In fact, the separation examination specifically reported that his anus and rectum, including the prostate, was normal was normal.  Further, the Board finds more compelling the service treatment records that are negative for complaints, diagnoses, or treatment for prostate cancer than the lay claims by the Veteran that he may have had problems with symptoms of prostate cancer while on active duty.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran neither had actual exposure to Agent Orange, another herbicide, or asbestos nor symptoms of and/or a diagnosis of prostate cancer while on active duty.  Therefore, the Board finds that entitlement to service connection for prostate cancer on in-service incurrence must be denied despite the fact that the Veteran served on U.S.S. Mullinnix as a boilerman during the time it sailed in the waters off of the Republic of Vietnam for most of the time from February 1969 to July 1969.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

As to the presumptions found at 38 C.F.R. §§ 3.307, 3.309(a), the record does not show the Veteran being diagnosed with a malignant tumor in the first post-service year.  In fact, the record does not show his being diagnosed with prostate cancer until 1998-almost three decades after his separation from active duty.  Accordingly, entitlement to service connection for prostate cancer on a presumptive basis must also be denied.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).

As to service connection based on post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1970 and the first complaints and/or treatment for prostate cancer in 1998 to be compelling evidence against finding continuity.  

In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with observable symptoms of prostate cancer since service even if not documented in his medical records.  See Davidson.  However, upon review of the claims file, the Board finds that the Veteran's report due to service is not competent and not credible because of the symptoms of prostate cancer are not capable of lay observation and there is no evidence of the onset of the disability for many years following his discharge from active duty.  

In these circumstances, the Board gives more credence and weight to the medical evidence of record, which is negative for complaints, diagnoses, or treatment for the claimed disorder for almost three decades following his separation from active duty, than the Veteran's claims which are incredible.  Therefore, entitlement to service connection for prostate cancer on post-service continuity of symptomatology must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(b), 3.309.

As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a competent and credible opinion finding a causal association or link between the Veteran's current prostate cancer and an established injury, disease, or event of service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  

As to the claims from the Veteran regarding prostate cancer being caused by his service to include exposure to herbicides and asbestos, the Board finds that the diagnosis of prostate cancer may not be made by a lay person because special medical training is required to diagnose it.  See Davidson.  Therefore, the Board finds that the presence of the disorder is a determination "medical in nature" and not capable of lay observation.  Id.  As such, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that the Veteran's opinion that his prostate cancer was caused by service are not competent evidence.  Jandreau.  

As to the Veteran's claim that his prostate cancer was caused by asbestos exposure, the Board also notes that while the manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system, it also specifically excludes prostate cancers as one of the cancers caused by asbestos exposure.  See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9-b.

Based on the discussion above, the Board finds that the record is negative for a competent and credible medical opinion finding a causal association or link between the Veteran's current prostate cancer and an established injury, disease, or event of service origin including his claimed herbicide and asbestos exposure.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d); Rabideau.  Therefore, the Board also finds that service connection for prostate cancer is not warranted based on the initial documentation of the disability after service.

In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the most probative evidence is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for prostate cancer is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs