Citation Nr: 1603867 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 10-08 544A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral shoulder disorders. 2. Entitlement to service connection for bilateral hip disorders. 3. Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. Moshiashwili, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This case was before the Board in June 2014, and was remanded to afford the Veteran a hearing before a Veterans Law Judge. The Veteran was scheduled for a hearing, but in an August 2014 response, he indicated he wished to withdraw his hearing request. Thus, the hearing request is deemed to be withdrawn. This case was again before the Board in November 2014, and was remanded for further development. It has now returned to the Board for appellate review. . FINDINGS OF FACT 1. The most probative evidence fails to link the Veteran's bilateral shoulder disorders to active service. 2. The most probative evidence fails to link the Veteran's bilateral hip disorders to active service. 3. The most probative evidence fails to link the Veteran's prostate cancer to active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral shoulder disorders have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. The criteria for establishing entitlement to service connection for bilateral hip disorders have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 3. The criteria for establishing entitlement to service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b) (2015). The duty to notify was satisfied prior to the initial RO decision by way of a letter sent to the Veteran in May 2008 that informed the Veteran of the evidence necessary to establish entitlement to service connection. It also informed him of the information that he should provide, including to establish herbicide exposure, and VA's duty to assist in obtaining evidence for his claim. The letter met the notification requirements set out for claims for service connection. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The appellant's service, VA, and private treatment records have been obtained and associated with the claims file. A medical examination or medical opinion is necessary in a claim for service connection if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). A medical opinion regarding the Veteran's prostate cancer, hip disorders, and shoulder disorders is not required because the record before the Board does not indicate that the disabilities had causal connection to or were associated with his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has been afforded a hearing before a RO Decision Review Officer (DRO) in which he presented oral argument in support of his claims. 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 DRO who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. The Veteran's representative did not appear during the hearing. Absent representation, the DRO instead held an informal hearing, explaining the issues and informing the Veteran of the evidence which would be needed to prove his claims. The Veteran was given a 60 day period in which to contact the RO if he was dissatisfied with the hearing or if he acquired new representation and wanted a new hearing. No such contact was made. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. This claim was remanded by the Board for additional development in June 2014 and November 2014. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has clarified the Veteran's request for a Board hearing, requested additional treatment records, and provided the Veteran with a Supplemental Statement of the Case. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The appellant has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. Analysis: Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service Connection for Bilateral Shoulder Disorders The Veteran contends in a November 2008 Notice of Disagreement that his shoulder should be service connected, because he injured it while on active duty. The Veteran does not state any details about this injury. Service treatment records contain no indication of an injury to the Veteran's shoulders. Although they do contain records from other injuries the Veteran suffered during his time in service, including dizzy spells, a stomach problem, a cut on his arm, and elbow pain, there is no complaint of, diagnosis of, or treatment for a shoulder injury in the records. In the Veteran's October 1967 separation examination, no notation is made of any shoulder problems. The Board finds that the evidence in the service records, including the separation examination, is more probative than statements about being injured made by the Veteran more than forty years after the conclusion of his service. Therefore, the Board finds that the preponderance of the evidence shows there was no in-service incurrence or aggravation of a disease or injury upon which to establish service connection. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Accordingly, the Veteran's claim for service connection for bilateral shoulder disorders is denied. Service Connection for Bilateral Hip Disorders The Veteran contends in a November 2008 Statement in Support of Claim that his hips should be service connected, as they were injured in service. The Veteran does not state any details about this injury. Service treatment records contain no indication of an injury to the Veteran's hips. As noted above, the treatment records do contain records of other injuries, but no complaint, diagnosis, or treatment related to the Veteran's hips. The October 1967 separation examination does not note any problems with the Veteran's hips. The Board finds that the evidence in the service records, including the separation examination, is more probative than statements about being injured in service made by the Veteran more than forty years after the conclusion of his service. Therefore, the Board finds that the preponderance of the evidence shows there was no in-service incurrence or aggravation of a disease or injury upon which to establish service connection. Id. Accordingly, the Veteran's claim for service connection for bilateral hip disorders is denied. Service Connection for Prostate Cancer The Veteran asserts that his prostate cancer should be service connected. In an April 2008 statement, he states that he was "in the presence of military personnel from foreign parts that [were] exposed to agents used by our government. . ." presumably meaning Agent Orange and other herbicides. In a July 2008 statement, he contends that, as someone responsible for fueling aircraft, he was exposed to substances which could have been carcinogenic, and further contends that he was treated in-service for urinary problems in June 1965. In his November 2008 Notice of Disagreement, he states he should be service connected for prostate cancer because of his exposure to various chemicals, and in a November 2008 statement, he asserts that he was exposed to Agent Orange while in service. If a veteran was exposed to an herbicide agent during active military service, certain diseases, including prostate cancer, will be presumed to have been incurred in service if manifest to a compensable degree at any time after service, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). If a 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, then exposure is not presumed, and 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. 38 C.F.R. § 3.307(a)(6)(iv). There is an exception for Air Force veterans who were "assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft." 38 C.F.R. § 3.307(a)(6)(v). None of the presumptions in § 3.307 apply here. The Veteran's form DD-214 does not indicate service in Vietnam, and a March 2010 VA request for information received a response that there was no evidence that the Veteran served in Vietnam. The Veteran did not serve during the time period which allows presumptive service connection through service in the Korean DMZ, and the Veteran served in the Navy, not the Air Force or the Air Force reserves. Therefore, the Veteran cannot be presumed to have been exposed to herbicides, including Agent Orange. Furthermore, there is no evidence in the record which suggests that the Veteran was exposed to herbicides in some other fashion. An April 2008 VA request for information related to any potential herbicide exposure on the Veteran's part returned a negative result. Nothing else in the record contradicts this negative finding or suggests a potential avenue of herbicide exposure. The Board finds that the preponderance of the evidence shows that the Veteran was not exposed to herbicides. The Veteran makes several assertions on matters which the Board finds he is not competent. Specifically, the Veteran contends that his prostate cancer could be related to jet fuel or other chemical exposure, or that he could have been exposed to Agent Orange by coming into contact with other servicemembers who were exposed to it. A layperson is competent to report on information derived from his own senses, such as symptoms of illness he experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a layperson is not competent to report on complex questions requiring specific expertise and scientific or medical testing, such as the etiology of a cancer or the epidemiological possibility of herbicide exposure through contact with an exposed person. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the Veteran's assertion that he was treated for prostate problems in service has no probative value. The Veteran states in his July 2008 letter that "My first report for prostate problems was in June 1965. I reported to the base dispensary regarding urinary problems." As explained above, while the Veteran is competent to state that he had difficulty urinating, he is not competent to establish a connection between problems urinating in 1965 and a current incidence of prostate cancer. Additionally, the Veteran states that he was treated in-service for this problem in June 1965, but he did not enter service until October 1965. Since there is no evidence in the service treatment records which would support the idea that the Veteran was treated for urinary or prostate problems at some other time, and the Veteran has suggested a time period prior to his term of service, the Board assigns no weight to this statement. Finally, there is nothing in the record that suggests in-service occurrence or onset of the Veteran's prostate cancer. The record is negative for complaints, diagnosis, or treatment of any prostate problems. Therefore, the Board finds that there was no in-service incurrence or aggravation of a disease or injury upon which to establish service connection. Accordingly, the Veteran's claim for service connection for prostate cancer is denied. ORDER Service connection for bilateral shoulder disorders is denied. Service connection for bilateral hip disorders is denied. Service connection for prostate cancer is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs