Citation Nr: 1343205 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 11-23 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for prostate cancer, including as due to exposure to herbicides. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer. 3. Entitlement to service connection for incontinence, to include as secondary to prostate cancer. ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). The Board has reviewed the contents of the Virtual VA file in addition to the paper file in deciding this claim. FINDINGS OF FACT 1. The Veteran's prostate cancer was not present in service or until many years thereafter, and there is no competent probative evidence of a causal connection between the Veteran's prostate cancer and military service or any incident therein, to include any exposure to herbicide agents. 2. The Veteran's erectile dysfunction was not manifested until many years after service and is not shown by the evidence of record to be related to service, or causally related to or otherwise aggravated by a service-connected disability. 3. The Veteran's incontinence was not manifested until many years after service and is not shown by the evidence of record to be related to service, or causally related to or otherwise aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by active military service and may not be presumed to have been incurred therein, to include as due to exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The claim of service connection for erectile dysfunction on a secondary basis lacks legal merit. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.310 (2012). 3. The claim of service connection for incontinence on a secondary basis lacks legal merit. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant was provided with a notification letter in February 2009 that fully addressed all notice elements and was sent prior to the May 2009 RO decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria for assigning disability ratings and assigning effective dates. Moreover, as the Veteran's claims for service connection are denied, no disability rating and effective date will be assigned as a matter of law. Therefore, there can be no possibility of any prejudice to the appellant with respect to any defect in the VCAA notice required under Dingess, at 19 Vet. App. 473. See VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The duty to assist has also been met here. The Veteran's personnel and treatment records have been obtained. The Veteran was afforded a VA examination in April 2009. The Board notes that the examiner did not provide an etiological opinion. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, while there are current diagnoses for prostate cancer, erectile dysfunction, and incontinence, there is no true indication those disabilities are associated with service. There is no evidence of pertinent disability in service or within post-service year. The Veteran has not claimed that pertinent disability had its onset in service, nor has he suggested a continuity of symptomatology since his discharge. In view of the absence of findings of pertinent pathology in service, and the first suggestion of pertinent disability many years after active duty, relating these disabilities to service would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). The Board is satisfied that the duties to notify and assist have been met. Lastly, there is no indication that there is any relevant evidence outstanding in these claims. Therefore, the Board will proceed with consideration of the Veteran's appeal. II. Law and Regulations Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show "(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); Holton v. Shinseki, 557 F.3d 1362 (2009). VA regulations also provide that where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, and specified diseases, such as malignant tumors become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). 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 an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 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 or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975." Service in the Republic of Vietnam " includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, specified diseases, including diabetes mellitus, type II, and lung and prostate cancers, shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The U.S. Court of Appeals for the Federal Circuit has agreed with VA's interpretation of its regulations that "duty or visitation" in the Republic of Vietnam seems to contemplate actual presence on the landmass of the country. Haas v. Peake, 525 F.3d 1168, 1186 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Hence, a Veteran who never went ashore from ship on which he served in Vietnamese coastal waters is not entitled to a presumption of service connection for disabilities claimed as due to exposure to herbicides, including Agent Orange. Id. 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. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiner v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis Service Connection for Prostate Cancer The Veteran contends that his prostate cancer is a result of exposure to Agent Orange during his service in Vietnam. Specifically, he contends that as a member of the USS Whipple (DE-1062), he was assigned to a supply party which resulted in him going ashore in Vietnam to replenish certain supplies necessary for continuation of ship operations. Service department records confirm that the Veteran served as a Seaman aboard the USS Whipple (DE-1062) from September 1970 through September 1974. In addition, they show that the Veteran was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), and the Combat Action Ribbon. The VSM was awarded to all members of the Armed Forces of the United States serving in Vietnam and the contiguous waters or airspace thereover, as well as for those who served in Thailand, Laos or Cambodia while serving in direct support of operations in Vietnam. See Manual of Military Decorations and Awards, 6.5 (U.S. Department of Defense Manual 1348.33-M, September 1996). Therefore, his receipt of the VSM and the other medals, while certainly commendable in their own right, are not indicative of his actual service on the landmass of Vietnam or inland waterways. See Haas v. Peake, 525 F.3d at 1168. Of record is an article which provides Ship's History for USS Whipple (DE-1062). The article noted that the USS Whipple was laid down in Seattle, Washington from April 1967 to October 1970, at which point it departed for its new port of Pearl Harbor, Hawaii. Whipple departed Hawaii in January 1972, and proceeded via Midway and Guam to the Philippines. Whipple also made stops in Subic Bay, Gulf of Tonkin, Danang Harbor, Hong Kong, Sri Lanka, and Taiwan. In July 1972, en route to Vietnam, heavy seas damaged Whipple's gun shield, forcing a change of plans and return to Subic Bay. Also of record is a memorandum dated in November 2010 of formal finding of a lack of information required to corroborate exposure to Agent Orange. It was noted that all efforts to obtain the needed information had been exhausted, and any further attempts would be futile. The record also contains a copy of a May 2009 memorandum issued by the Joint Services Records Research Center (JSRRC) indicating that, after having reviewed numerous official military documents, ships histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents during the Vietnam Era, they had found no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Therefore, the JSRRC could provide no evidence to support a Veteran's claim of exposure to tactical herbicides agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era. A preponderance of the evidence is against a finding that the Veteran served on the landmass of Vietnam during his active military service. The Veteran was awarded a Combat Action Ribbon, but does not claim and the record does not show that the award was related to a visit to the landmass of Viet Nam. He claims that he was part of a supply party. Despite being asked for details regarding the visit, the Veteran has not supplied the dates, place(s) visited or any other details surrounding the visit. His descriptions are vague and not supported in the objective record. The Board does not find the bare allegations credible. The Board finds that, when weighed against the record, the Veteran's reports possess minimal probative value. Thus, service connection for prostate cancer cannot be granted on a presumptive basis. Haas v. Peake, 525 F.3d at 1168. Consequently, the Board analyzes whether the Veteran is entitled to service connection for prostate cancer on a direct basis. The Veteran has not asserted, and the evidence does not reflect, that he was diagnosed with prostate cancer in service. The Board notes the Veteran complained of left testicle aches in September 1974; however, there is no indication that there were any complaints or treatment for the prostate. Post-service, VA and non VA medical records reflect that the Veteran was diagnosed with prostate cancer in July 2006, nearly 32 years after his discharge from active service. The records further indicate that the Veteran received a laparoscopic prostectomy in September 2006. Upon VA examination in April 2009, the examiner diagnosed the Veteran with Stage-II adenocarcinoma of the prostate with the following complications: urinary incontinence requiring six pads per day and erectile dysfunction not remediable with medications. In this case, the only evidence supportive of a link between the disorders at issue and service consists of the Veteran's own statements that the disorders are due to service, including to herbicide exposure. There is no indication that the Veteran has any education, training, or experience in medical matters. Further, the Board finds that determining the origin of the disorders at issue, and especially with respect to determining the effect of herbicides on the disorders, is clearly far outside the realm of lay expertise. This is particularly true given the absence of any findings in service, and the lengthy period of time after service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Thus there are no grounds to grant the Veteran's claims on a direct-incurrence basis. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Secondary Service Connection for Erectile Dysfunction and Incontinence The Veteran also claims that he is entitled to service connection for erectile dysfunction and incontinence "associated to prostate cancer." The Veteran does not claim, nor do the service treatment records show any signs or symptoms of erectile dysfunction or incontinence in service or until many years after service. A private postoperative progress note indicated that the Veteran suffered from urinary leakage and an inability to obtain an erection adequate for intercourse. In addition, the March 2009 VA examiner diagnosed the Veteran with erectile dysfunction and incontinence as complications of the laparoscopic prostectomy, and noted that the Veteran had no problems with erectile dysfunction prior to the surgery. The provisions of 38 C.F.R. § 3.310 only apply to service connection for secondary disabilities caused by a service-connected disability. In this case, service connection for prostate cancer has been denied. Accordingly, there is no legal basis of entitlement to secondary service connection because the Veteran has not been granted service connection for the disorder that he alleges caused his erectile dysfunction. Therefore, with respect to the claims of secondary service connection, application of the law to the facts is dispositive, and the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER Service connection for prostate cancer, including as due to exposure to herbicides, is denied. Service connection for erectile dysfunction, to include as secondary to prostate cancer, is denied. Service connection for incontinence, to include as secondary to prostate cancer, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs