Citation Nr: 1414002	
Decision Date: 04/01/14    Archive Date: 04/11/14

DOCKET NO.  12-04 015	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Journet Shaw, Associate Counsel


INTRODUCTION

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

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

The Veteran testified before the undersigned Veterans Law Judge at a February 2014 videoconference hearing, and a transcript of this hearing is of record.

This appeal was processed using the VBMS and Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.


FINDINGS OF FACTS

1.  The evidence of record does not show that the Veteran was exposed to herbicides while in active duty service.

2.  The evidence of record does not show that the Veteran's prostate cancer is related to a disease, injury or event in service or manifested within one year of separation from service.  


CONCLUSION OF LAW

The Veteran's prostate cancer, is not shown to have been incurred in or aggravated by his active duty service, nor may it be presumed to have been incurred in or aggravated by his active duty service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  Id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Id.   

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.  

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim: (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.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id. at 486.

The VA satisfied its duty to notify when it issued an April 2010 letter, prior to the rating decision, informing the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence.  The correspondence also informed him of how disability ratings and effective dates are assigned, if service connection was to be granted.  See Dingess v. Nicholson, supra.

As noted above, the Veteran testified at a Board hearing in February 2014.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2)  requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2) (2013).  Here, during the hearing, the VLJ elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim.

Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearings.  By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.

The VCAA further provides that VA has a duty to assist the Veteran in the development of the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  Id.

The Board concludes that the duty to assist has been satisfied.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran's service treatment records (STRs), post-service VA treatment records and lay statements are in the file.  The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim.  

The Board observes that the Veteran was not afforded a VA examination for his prostate cancer claim.  In this regard, the Board finds that the Veteran's military records are negative for any evidence of exposure to herbicides and there is no persuasive competent and credible evidence of continuity or a link to service or a service-connected disability.  See Paralyzed Veterans of America, v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that, if the evidence of record does not establish that the veteran suffered an event, injury, or disease in service, no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim).  

For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran.  No useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Service Connection

In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013).  For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). 

The Veteran contends that he was exposed to herbicides while serving in Korea and that exposure caused him to develop prostate cancer.  

Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii).  For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a).

In addition, VA regulations provide that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ (i.e. demilitarized zone) in an area in which herbicides are known to have been applied during that period, 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.  See 38 C.F.R. § 3.307(a)(6)(iv).

VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) (including prostate cancer) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii).

Initially, the Board observes that the Veteran has a current diagnosis for prostate cancer, which is in remission following a radical prostatectomy.  

As to whether the Veteran was exposed to herbicides while in service, the Veteran's service personnel records show that the Veteran served in the 51st Signal Battalion in Korea from June 7, 1969 to April 11, 1970.  There is no evidence that the Veteran served in Vietnam.  See April 2010 Response to Request for Information.  

A June 2010 response from the Defense Personnel Records Information Retrieval System reflects that based on the Veteran's period of service in Korea and his service with the 51st Signal Battalion, there is no documentation that supports that he was exposed to herbicides.  His unit's camp was located 21 miles from the Korean DMZ and there is no documentation that his unit performed any duties along the DMZ.  The Board finds that the Veteran was not exposed to herbicides, so the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iv) does not apply.  

The Veteran asserts that while he was stationed in Korea, he walked through an area contaminated by Agent Orange while patrolling in and around the camp.  See March 2010 Statement.  However, the evidence does not establish that his unit would have been in proximity to the DMZ.  In fact, the Veteran testified, during his February 2014 Board hearing, that he did not go to the DMZ and that his duties, as a Communications Specialist, did not take him beyond the outside borders of his base.  Therefore, the evidence of record does not establish that the Veteran was exposed to herbicides, so the Veteran may not establish a finding of entitlement to service connection for his prostate cancer based on herbicide exposure.  

The Board has also considered presumptive service connection for prostate cancer under 38 C.F.R. § 3.309(a) as a malignant tumor.  A June 2008 VA treatment record documents the first report of elevated prostate-specific antigen (PSA) levels.  An August 2008 VA treatment record documents that the Veteran was diagnosed with prostate cancer.  As the Veteran separated from service in 1970, this fails to satisfy the requirement under 38 C.F.R. § 3.307 for manifestation of his prostate cancer within one year from service discharge.  

Despite the evidence not supporting a finding of presumptive service connection, the Board has also considered whether the Veteran's prostate cancer was otherwise directly incurred in or aggravated by his active military service, and finds that such a relationship has not been shown.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir 1994).  

In this regard, the Veteran does not argue that his prostate cancer manifested during service, and his service treatment records do not show any complaints, treatment, or diagnosis of prostate problems.  In fact, his February 1970 separation examination showed normal results upon clinical evaluation, except for a right spermatocoele (common cystic condition encountered within the scrotum).  An April 1970 statement of medical condition did not report any problems related to his prostate.  The first record of the Veteran's prostate problems in June 2008 was a finding of elevated PSA levels.  After his diagnosis for prostate cancer two months later, the Veteran underwent a radical prostatectomy in September 2008 and VA treatment records through January 2010 do not reflect any reoccurrence of his prostate cancer.  The VA treatment records do not discuss the etiology of the Veteran's prostate cancer.  Therefore, the evidence of record does not establish that the Veteran is entitled to service connection for his prostate cancer on a direct basis.  

Although the Board acknowledges the Veteran's contention that his prostate cancer was caused by his active duty service, the Veteran is not shown to have the appropriate medical knowledge or training to render a competent opinion on such complex issues as the etiology of prostate cancer.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board finds that the Veteran is not competent to provide medical evidence as to the etiology of his prostate cancer.  

In sum, the Veteran has not shown that he was exposed to herbicides or that his prostate cancer manifested within one year of his separation from service, thus, the Veteran is not entitled to presumptive service connection.  Also, he has not established, based on competent evidence, that his prostate cancer was incurred in or aggravated by his active duty service.  

Therefore, with the preponderance of the evidence against a finding of service connection for prostate cancer, to include as due to exposure to Agent Orange, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  



ORDER

Entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange, is denied. 




____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs