Citation Nr: 1339899 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-08 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for prostate cancer to include due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1967. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Virtual VA paperless claims processing system contains additional VA treatment records that have been considered by the RO and the Board. FINDING OF FACT The evidence does not establish that the Veteran was exposed to herbicide agents during his military service or that his current prostate cancer manifested in service or within one year of separation or that it otherwise relates to service. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by service and may not be presumed to relate to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1110, 1137, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.313 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the Court held that 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. All notice under the VCAA should generally be provided prior to an initial decision on a claim 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). However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case (SSOC)) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Prior to the initial rating decision in this matter, a January 2010 letter notified the Veteran of all five elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. Therefore, the duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), service personnel records, VA medical records, and private medical records are in the claims file. He has not identified any other outstanding records or evidence. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations, which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The standards of McLendon are not met. The Veteran was diagnosed has having prostate cancer in October 2008. See October 2008 Histology Diagnostic Report. However, the evidence of record does not show that his prostate cancer manifested in accordance with presumptive service connection regulations or is otherwise related to service. Specifically, the Veteran does not allege, and his personnel records do not suggest, that he set foot in the Republic of Vietnam (Vietnam) during his service or that he was otherwise exposed to herbicides during the Vietnam War. Similarly, no credible medical evidence establishes that the Veteran's prostate cancer manifested in service or within a year of separation, and the lay evidence does not show continuity of symptomatology for prostate cancer since service. Thus, the second McLendon element is not satisfied and, therefore, a VA examination is not required to decide this claim. See McLendon, 20 Vet. App. 79, 83 (2006). VA has satisfied its duties to notify and assist and, therefore, the Board may proceed with appellate review. The Merits of the Claim The Veteran contends that his current prostate cancer relates to in-service herbicide exposure. Although the Veteran has a diagnosis of prostate cancer, the preponderance of the competent evidence is against the questions of both exposure to herbicides and a connection to service. The appeal will therefore be denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for prostate cancer, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran's claim fails on elements (2) and (3). For the diseases listed in 38 C.F.R. § 3.309(e), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Specifically, § 3.303(e) provides that when exposure to herbicide agents is established during active service, diseases associated with herbicide exposure that manifest at any date, however remote, after service are entitled to service connection, unless they are clearly attributable to causes unrelated to service ("intercurrent causes"). See 38 C.F.R. § 3.307(d). In addition, veterans who served in Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to herbicide agent during service. 38 C.F.R. § 3.307(a)(6). For purposes of applying the herbicide presumption, the phrase "service in Vietnam" includes service in the waters offshore of Vietnam or service in other locations if the conditions of service involved duty or visitation to Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a); see Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008) (upholding 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 herbicide presumption). A Veteran who served in Vietnamese coastal waters, but never went ashore is not entitled to presumptive service connection due to alleged herbicide exposure. Haas, 525 F.3d at 1193-1194. See VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of Vietnam does not qualify as "service" in Vietnam). In addition, Haas holds that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal. 525 F.3d at 1196. The Veteran does not dispute that he did not set foot on the landmass of Vietnam. Instead, he argues that his vessel, the submarine U.S.S. Bluegill operated in sea waters that were contaminated by river runoff from inland waters in Vietnam and that his herbicide exposure resulted from cleaning the bilge pumps of the vessel's freshwater evaporation units. May 2010 Notice of Disagreement; July 2010 Letter. He argues that his work on the evaporation units required him to physically open and close valves that were submerged in the brine that was the byproduct of the distillation process and that contained high concentrations of contaminants, and that this action exposed his hands and arms to herbicides. The Veteran's statements regarding herbicide exposure off the coast of Vietnam do not constitute competent evidence that supports his claim of service connection for prostate cancer. Determinations such as whether inland waters from mainland Vietnam contaminated the offshore waters in which the U.S.S. Bluegill operated and whether the brine that was a byproduct of the distillation process contained concentrated levels of herbicides require specialized knowledge and training. See Layno, 6 Vet. App. at 469. Thus, the Veteran's lay statements regarding herbicide exposure do not warrant presumptive service connection for herbicide exposure in service. The Veteran submitted several articles in support of his contention that his operation of the freshwater evaporation units on the U.S.S. Bluegill exposed him to herbicides. See "Blue Water Battle" (magazine article) (received July 2010); "Co-Distillation of Agent Orange and Other Persistent Organic Pollutants in Evaporative Water Distillation" (research article) (received November 2011) and Appendix (received May 2012); KITV news article (received November 2011). The "Blue Water Battle" magazine article reports that the Royal Australian Navy found that running dioxin-tainted seawater through its ships' distilling machines, which are identical to distillation equipment used by the U.S. Navy, magnified the dioxin's strength. Similarly, the research article cites to laboratory studies that suggest that standard distillation processes concentrate contaminants such as herbicides. The article, which focuses on the Royal Australian Navy, observes that "vessels were often in water which seem[s] likely to have been contaminated with residues from the spraying of inland and coastal areas." It concludes that "evaporative distillation may allow TCDD . . . to enter water supplies and to concentrate in the distillate" and that "contamination via water may have been an important pathway for contamination of personnel with TCDD on board ships." The Appendix confirms the use of distillation on U.S. Navy ships to process seawater and that dioxins such as TCDD are "readily codistilled and thus will be present in the product water of distillation systems using water that contains TCDD." The KITV news article essentially summarizes the findings mentioned in the magazine and research articles. The articles submitted by the Veteran fail to establish, individually or in combination, that he was exposed to herbicides on a direct basis while he served on the U.S.S. Bluegill. The research article's observation that Australian naval "vessels were often in water which seem[s] likely to have been contaminated" does not pertain to U.S. Navy ships or in any way establish that the U.S.S. Bluegill, a U.S. Navy submarine, operated in contaminated offshore waters. Moreover, the research article (and the Appendix) offers no data to support its suggestion that the waters offshore of Vietnam were contaminated with dioxins during the Vietnam era. The Veteran substantially relies on a extract from The American Legion magazine which mentions a study by the Royal Australian Navy suggesting that off-Vietnam shore water distillation by that nation's vessels was contaminated by herbicide run-off. However, prior to its confirmed rating decision of October 2012, the RO caused a copy of the research memorandum prepared by the U.S. Army and Joint Services Records Research Center to be placed in the claims file, which found no evidence supportive of the Veteran's contentions. Moreover, in Haas, a blue water Veteran supplemented his argument with studies which attempted to show a direct connection between the spraying of Agent Orange on the mainland of Vietnam to the development of Agent Orange-related diseases in service members who served on the ships offshore. In particular, the claimant in Haas attempted to rely on the same 2002 study conducted for the Australian Department of Veterans Affairs which has been noted by the Veteran in this case. This report suggests that Vietnam veterans of the Royal Australian Navy may have been exposed to herbicide compounds by drinking water distilled on board their vessels. Although the Federal Circuit passed no judgment on the validity of studies such as the Australian study, it did highlight the VA's rulemaking with respect to this Australian study, by noting that VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War. Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy. Given these factors, the preponderance of the evidence is against a finding that the Veteran was exposed to herbicides in service as he alleges. Moreover, there is also no evidence suggesting that the Veteran's disorder was related in any matter to service. The evidentiary requirements for establishing entitlement to service connection benefits are also more relaxed for the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are entitled to service connection, unless they are clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Id. (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"). Because the Veteran has been diagnosed as having prostate cancer and tumors (to include cancer) are considered a chronic disease under section 3.309(a), the provisions of subsection 3.303(b) for chronic diseases apply. Thus, service connection may be established with evidence of a chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, where a claimant served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for tumors (to include prostate cancer) may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a) & (e). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Although the evidence establishes that the Veteran was diagnosed as having prostate cancer in October 2008 and underwent a radical prostatectomy in December 2008, the probative evidence of record does not show that the Veteran's cancer is related to service. See December 2008 Department of Pathology Report; October 2008 Histology Diagnostic Report. Specifically, the evidence does not suggest that the Veteran's prostate cancer manifested in service or within a year of separation or is otherwise related to an in-service incident or disease. The probative evidence of record weighs against presumptive service connection for prostate cancer based on in-service herbicide exposure during the Vietnam Era and the claim is denied. ORDER Entitlement to service connection for prostate cancer due to herbicide (Agent Orange) exposure is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs