Citation Nr: 1502489 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 09-07 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for prostate cancer 2. Entitlement to service connection for loss of teeth as secondary to radiation treatment for prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active service from October 1965 to February 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2007 and November 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. In the September 2007 decision, the RO denied service connection for prostate cancer. In November 2007, the RO denied service connection for loss of teeth. The RO is the Agency of Original Jurisdiction (AOJ). The Veteran testified before a Decision Review Officer (DRO) at the AOJ in September 2009. A transcript of the hearing is associated with the claims file. The Board denied this appeal in a May 2012 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2013, the Court granted a joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the May 2012 Board decision, and remanded the case for compliance with the terms of the JMR. Following the remand from the Court, the Board remanded the case to the AOJ for additional development in April 2014. That development completed, the case has properly been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran was not exposed to an herbicide agent during his active service. 2. Prostate cancer did not have onset during active service, was not caused by active service, and did not manifest within one year of separation from active service. 3. Post-service loss of teeth was not caused by the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not all been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for post-service loss of teeth have not all been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection for prostate cancer is warranted based on exposure to an herbicide agent, such as Agent Orange, during his active service. He further contends that he suffered loss of teeth as a result of radiation therapy for his prostate cancer. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2014). "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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including prostate cancer, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, prostate cancer shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). A veteran, who during active service, served in the Republic of Vietnam during the Vietnam War 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 service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii) (2014). Even if the claimed disability is not on the list of diseases subject to presumptive service connection due to exposure to an herbicide agent, service connection may be established by proof that the claimed disability was actually caused by exposure to an herbicide agent during service or otherwise caused by or had onset during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be granted for a non-service connected condition if the evidence shows that such condition was caused or aggravated by a service-connected condition; a theory of entitlement referred to as secondary service connection. 38 C.F.R. § 3.310. The Veteran does not assert that he was in Vietnam and his service records show that he was not in Vietnam. His claim is based on exposure to an herbicide agent while service in Thailand. In the JMR, the Parties agreed that in the May 2012 decision, the Board did not address whether a "potentially applicable" provision of the Compensation and Pension Service Adjudications Manual, the M21-1MR, did, in fact, apply to the case and to the extent that the provision was applicable, whether VA had complied with the provision. The provision identified by the Parties is M21-1MR Section IV.ii.2.C.10.q. It states that "a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases". To address this concern, in the April 2014 Remand, the Board directed the AOJ to ask the Veteran to clarify his dates of stationing, places of stationing, duties, and activities while in service and stationed in Thailand and ask him to provide any specific information concerning avenues or potential avenues of exposure to herbicide agents in service. The Board directed that the AOJ must then attempt to verify whether the Veteran was exposed to herbicides in Thailand, to include the Royal Thai Air Force Base (RTAFB) at Ubon through the U.S. Army Joint Services Records Research Center (JSRRC), in accordance with M21-1MR.IV.ii.2.c.10.q and to notify the Veteran of any negative results of such efforts. That provision of the M21-1MR begins by stating that the compensation service has determined that special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. Next, it sets out steps to verify exposure to herbicides when a veteran with service in Thailand during the Vietnam War claims a disability based on herbicide exposure. Step one has two parts: The first part is to determine if the veteran served at one of several RTAFBs. The second part is to determine if the veteran served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance reports, or other credible evidence. If the step is met, then VA is directed to concede herbicide exposure on a direct or facts-found basis. Step 2 asks the VA employee to determine if the veteran served at a U.S Army Base in Thailand and then proceed in a manner similar to step one as to the veteran's duties. If neither step1 nor step 2 is met, then step 3 directs the VA employee to file a copy of the Compensation Service's Memorandum of Record in the Veteran's claims file. That Memorandum of Record is found in another section of the M21-1MR. Step 4 is to ask the Veteran for the approximate dates, location, and nature of the alleged exposure. Step 5 provides that if the Veteran responded within 30 days, to go to step 4 and if not then to refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist and then decide the claim based on the evidence of record. Step six directs the VA employee to review the information provided by the veteran together with the Memorandum of Record. Step seven is to determine if herbicide exposure can be acknowledged on a direct or facts-found basis as a result of this review. If it can be acknowledged, that VA is to proceed with any other necessary development such as scheduling an examination, before referring the claim for rating. If exposure cannot be acknowledged then step 8 follows. Step eight requires that the VA employee determine whether the Veteran has provided sufficient information to permit a search by the JSRRC. If so, then VA must send a request to the JSRRC for verification of exposure to herbicides. If not, then the JSRRC coordinator is to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Service personnel records document that the Veteran served as a Petroleum Fuels Specialist at the Ubon RTAFB from February 1967 to March 1968. His performance evaluation for the period from January 1967 to January 1968 document that his duties were mobile refueling - delivering fuel at all base assigned and transient aircraft, maintaining accurate records on each delivery, and performing operators maintenance on refueling units. Comments include that he was constantly alert in the Base Fuels work area and the flightline area for safety hazards. VA treatment records document that the Veteran was first diagnosed with prostate cancer in early 2006 after he was noted to have an elevated prostate specific antigen test result in January 2006. The records do not show that he had prostate cancer or symptoms of such prior to 2006, more than 45 years after active service from October 1965 to February 1969. During the September 2009 DRO hearing, the Veteran testified that his duties in Thailand were to refuel jet planes, providing factual evidence against this claim of high probative weight, clearly indicating he does not meet the requirements of the presumption for Thailand Veterans. In response to a question from his representative as to whether he remembered seeing or being exposed to any barrels that he assumed contained herbicides, the Veteran responded that he saw them loaded on planes and that he was in the proximity of the planes. He testified that he did not ever personally handle Agent Orange. When asked by the DRO if he had any exposure to Agent Orange under any other circumstance, the Veteran responded "[t]he canisters could have leaked or whatever. . . the containers, I don't know." The Veteran also testified that he had never set foot in Vietnam. The Veteran own statements clearly indicate that he did not serve as an Air Force security policeman, security patrol dog handler, or member of the security police squadron. Service records do not show that he served near the air base perimeter. His job would actually suggest he would be working in the center (or near center) of the base, as security was provided for the airfields. Simply stated, as some service professions are indicated to insinuate possible exposure to herbicides in Thailand, other occupations, such as the Veteran's, would indicate that the opposite is likely. The testimony provided is not evidence that the Veteran served near the base perimeter. If fact, a detailed review of the Veteran's statements does not indicate he contends that he was at the base perimeter. Rather he contends that he saw barrels that he assumed contained herbicides and speculates (he never indicates he knows what a barrel of herbicide would look like, and never describes such) that the barrels may have leaked. His contentions are speculation in the extreme. Application of the first step of M21-1MR.IV.ii.2.c.10.q does not yield a finding that he was exposed to herbicides during his service at the Ubon RTAFB Step 2 does not apply as the Veteran did not serve at a U.S. Army base in Thailand. In April 2014, the AOJ sent a letter to the Veteran requesting that he provide the information specified in the Board's Remand. The Veteran did not respond. In September 2009 and in April 2014, the AOJ then placed an Herbicide Memorandum in the claims file. The letter sent to the Veteran in April 2014 and the addition of the Memorandum of Record met the third and fourth step of M21-1MR.IV.ii.2.c.10.q. Here, the Board notes that the Veteran did not respond to the letter sent in April 2014 so the step calls for providing the case to the JSRRC coordinator. There is no formal finding by the JSRRC coordinator associated with the claims file. The Memorandum of Record explains that tactical herbicides, such as Agent Orange, were not stored in Thailand and there are no records of use or storage of tactical herbicides other than tests during a brief period in 1964 at the Pranbuir Military Reservation. The Memorandum of Record also explains that there are no records of tactical herbicides sprayed in Thailand after 1964. It explains that there was sporadic use of non-tactical herbicides within fenced perimeters in Thailand and security policeman were known to have walked perimeters at the bases in Thailand. Given this information, the lack of the formal finding by the JSRRC is not meaningful in this case. There is no indication that the Veteran was at the perimeter fences at Ubon RTAFB based on his own statements. His assertion of exposure to herbicides is based on supposition as to what may have been contained in barrels and the possibility that such barrels could have leaked, and, if so, speculation that he possibly could have come in contact with the herbicide through such leak, which then lead him to have a disability more than 45 years later (speculation in the extreme). This chain of possible events does not lend itself to verification of exposure by the JSRRC. Therefore, step 5 is satisfied. Review of the information provided by the Veteran and the Memorandum of Record does not lead to a finding that the Veteran was exposed to an herbicide agent during service, satisfying step seven. A As the Veteran has not provided sufficient information for verification, the claim must be decided on the evidence of record. This completes the steps required by M21-1MR.IV.ii.2.c.10.q. (notwithstanding the fact, which should be noted for the record, that M21-1 does not pertain to the Board, the undersigned has attempted to meet the requirement of the Court in this JMR). Based on the Veteran's statements and his service treatment records, the Board concludes the evidence that he was exposed to herbicides during service is not favorable to the Veteran's claim and is not in equipoise. Hence, service connection for prostate cancer is not warranted based on exposure to herbicides during service. Nor is there any other theory of entitlement upon which to find that service connection is warranted. His prostate cancer did not manifest until 2006, clearly more than one year after separation from active service. Therefore, the presumptive provisions for service connection for chronic disease are not applicable. There is no evidence of manifestation of prostate cancer during service and the evidence does not show that his prostate cancer was caused by service. Therefore, service connection on a direct theory of entitlement is not warranted. As already explained, a direct theory of entitlement based on herbicide exposure does not yield a grant of the claim because he was not exposed to an herbicide agent. His claim of entitlement to service connection for post-service loss of teeth is based on a theory of secondary service connection due to radiation treatment for prostate cancer. As the Board here decides that service connection for prostate cancer is not warranted, the claim for service connection for loss of teeth is not warranted on a secondary theory of entitlement. There is no evidence to support a finding that service connection is otherwise warranted for post-service loss of teeth. In summary the preponderance of evidence is against both claims. Hence, the appeal must be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2014). VA provided adequate notice in letters sent to the Veteran in July 2007 and August 2008. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA and private treatment records are associated with the claims file as are the Veteran's service personnel records. VA has no duty to provide an examination in this case. The only alleged in-service event, disease or injury is exposure to herbicide agents during service. An examination would not provide evidence in this regard. In short, there is insufficient evidence of an in-service event, disease or injury in this case, including symptoms of the claimed disabilities, and no evidence of manifestation of the claimed disabilities in any applicable presumptive period. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the April 2014 Remand, the Board directed the AOJ to ask the Veteran to provide specific information as to potential exposure to herbicide agents during service. The AOJ complied with this directive in a letter sent to the Veteran in April 2014. The Board also directed the AOJ to attempt to verify exposure to herbicides during service in Thailand through the JSRRC in accordance with the M21-1MR Section IV.ii.2.C.10.q. The AOJ did so as explained in the Service Connection section of the instant document. The AOJ readjudicated the claim in an April 2014 Supplemental Statement of the Case, thus completing the last directive of the Board's April 2010 Remand. The Board is aware that the Memorandum of Record was placed in the claims file prior to the Board's now vacated 2012 decision. However, the April 2014 Board Remand was necessary to ensure that there had been compliance with the M21-1MR Section IV.ii.2.C.10.q. provision. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for loss of teeth as secondary to radiation treatment for prostate cancer is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs