Citation Nr: 1605466 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 08-18 690 ) 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 herbicide exposure. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and June 2007 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified before the undersigned Veterans Law Judge in March 2013. A transcript of that hearing is of record. These matters were previously remanded in June 2013 and December 2014 for further development. The Board finds substantial compliance with the requested development regarding the claim of entitlement to service connection for diabetes mellitus. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era and exposure to herbicides may not be presumed. 2. The Veteran's service personnel records do not show that he was exposed to testing sites or storage sites for herbicides while stationed at Eglin Air Force Base between 1978 and 1984, and the most probative evidence of record shows that he was not exposed to herbicides during active service. 3. The Veteran is not shown to have complaints or findings of prostate cancer in service or within the first year after separation from service. The current diagnosis of prostate cancer is not shown by competent clinical evidence or competent lay evidence of record to have been due to or incurred during active service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated June 2005 and October 2006. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent April 2015 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. VA has obtained the Veteran's service personnel records and contacted the United States Army and Joint Services Records Research Center (JSRRC) with regard to verifying the Veteran's claimed exposure to herbicides at Eglin Airforce Base. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Evidence of continuity of symptomatology of a disability from the time of service to the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Certain chronic disabilities, such as prostate cancer, if manifest to a degree of 10 percent within one year after separation from active duty, are presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a)(2015). For Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending May 7, 1975, service connection may be presumed for certain listed diseases, such as prostate cancer that become manifest within a particular period after service, based on presumed exposure to herbicides. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307 , 3.309(e)(2015). If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, 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 to be applicable. 38 C.F.R. § 3.309(e) (2015). Exposure to herbicides is not presumed in those instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection for herbicide-related diseases is applicable. 38 C.F.R. § 3.309(e) (2015). A claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155 (1997). Proof of direct service connection between exposure and disease requires a showing that exposure during service actually caused the disability which developed years later. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he is entitled to service connection for prostate cancer due to exposure to herbicides during active service. Alternatively, the Veteran also claims that prostate cancer manifested during service with symptoms such a high prostate-specific antigen (PSA) indication. A review of the service medical records shows that there were no reports or treatments related to prostate cancer. A January 1999 service medical record shows the results of a laboratory test of the ProsAg noted at 4.6 H Ng/mL which was diagnosed as abnormally high. A July 2006 private treatment record from Dr. L.C., reported that the Veteran was examined for a first time evaluation secondary to elevated PSA blood test. The Veteran reported that he had never had a PSA test done before and this was his first screening. Dr. L.C.'s assessment was noted as an elevated PSA of 17.6 and an abnormal digital rectal examination of the prostate. A July 2006 private post biopsy report shows that the Veteran was assessed with a glandular proliferation on prostate biopsy. An August 2013 VA examination report shows that the Veteran was first diagnosed with prostate cancer in 2006. The examiner opined that it was less likely as not that prostate cancer was incurred in or caused by the active service. The examiner's rationale reported that notes from the Veteran's urologist in September 2006 stated that a prior biopsy was negative for prostate cancer, confirmed by a second opinion at Johns Hopkins. The examiner reported that prostate cancer was not diagnosed until September 2006 and the Veteran was discharged in December 2000. The examiner also reported that there were a number of other reasons for elevated PSA besides prostate cancer. A February 2015 VA examination report shows that the VA examiner opined that prostate cancer was less likely than not incurred in or etiologically related to active service. The examiner reported that there was no specific etiological factor identified for the cause of the Veteran's prostate cancer. The examiner also opined that it was less likely than not that the in-service elevated PSA was indicative of prostate cancer. The examiner reported that elevation of PSA in the blood could be due to its liberation into the circulation because of disruption of the prostate cellular architecture. That could occur in the setting of different prostate diseases including prostate cancer. It was important to note that PSA was not specific to prostate cancer but to prostatic tissue and therefore PSA elevations may indicate the presence of any kind of prostate disease. The examiner remarked that causes of PSA elevation included benign prostatic hyperplasia, enlargement of the prostate, secondary to a noncancerous proliferation of prostate gland cells. Age and prostate volume may also influence PSA test results. Prostatitis caused PSA elevation. Prostatitis was the most common prostate problem for men younger than 50. The Veteran was 45 years old in January 1999 when his PSA was elevated. The examiner reported that the Veteran had a diagnosis of urinary tract infection, prostatitis, and epididymitis. All of those conditions may have caused the elevation of PSA. The examiner reported that elevated PSA could also occur with prostate manipulation such as ejaculation, prostate examination, urinary retention or catheter placement, and prostate biopsy. The examiner also considered whether it was as likely as not that the Veteran's prostate cancer was present or manifested within the first year of separation from active service, but reported that there was no way to determine when the cancerous process started but that cancer of prostate was less likely in white men under the age of 50. The Board notes that Veteran received an examination of his claimed prostate cancer in January 2011, and the examiner found that prostate cancer was at least as likely as not the result of herbicide exposure in service. As a rationale for that opinion, the examiner discussed the evidence of record supporting a finding that herbicides were used at Eglin Air Force Base. However, the question of whether the Veteran was exposed to an herbicide agent in service is factual, not medical, in nature. The question of whether the Veteran was actually exposed to herbicides in service is not a determination that the VA examiner was competent to make, but is a question left to the finder of fact. Therefore the Board finds that the January 2011 VA examination report is of no probative value. Initially, the Board notes that the Veteran did not serve during the Vietnam era, nor does he assert he was exposed to herbicides in the Republic of Vietnam. Instead, he claims and has provided testimony and news articles that indicate herbicides were used and stored at Eglin Air Force Base while he was stationed at Eglin Air Force Base. The Veteran's personnel file shows that during his service, he was assigned to Eglin Airforce Base from 1978 to 1984. A JSRRC report from September 2012 shows an inability to document that the Veteran was exposed to herbicides at Eglin AFB or that he was in the specific vicinity of the test study area. Available historical data shows that Eglin AFB was used to test Agent Orange spray equipment throughout the 1960s. A two-mile square area of Eglin AFB located near Walton Beach in northwest Florida was used to store, load, and test herbicides during a 1962 to 1970 spray test program. The program was initiated in April 1972 on Test Area C-52A at Eglin AFB. The herbicide was placed in five replicated 10 by 10 foot plots. The plots were periodically sampled over a period of six years and monitored by two civilians and two military officers. The JSRRC concluded the report by noting that the Veteran's exposure to Agent Orange or other tactical herbicides could not be conceded. Accordingly, the Board finds that the Veteran's statements alone cannot be used to establish herbicide exposure during service. The Board finds that the evidence of record does not support the Veteran's contention that he was exposed to herbicides in service and therefore, he is not entitled to service connection for prostate cancer on a presumptive basis based on exposure to herbicides pursuant to 38 C.F.R. § 3.309(e) (2015). The Board finds that the most probative evidence of record is the August 2013 and February 2015 VA examiner's opinions that concluded that after reviewing all the evidence of record and considering all the lay statements of record, that it was less likely as not that the Veteran's prostate cancer was incurred in or was due to active service, or that the disability had manifested within one year of separation of service. The examiner considered all of the evidence of record and identified the Veteran's in-service PSA results and post-service medial evidence in opining that the Veteran did not have prostate cancer during service or within the first year after separation from service. Accordingly, the Board finds that the August 2013 and February 2015 VA examination reports are highly probative in denying the claim. Prejean v. West, 13 Vet. App. 444 (2000). Additionally, there is no competent medical evidence or opinion that the Veteran's prostate cancer is related to service or manifested within one year after separation from service, and neither the Veteran nor representative has presented, identified, or alluded to the existence of any such opinion. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for prostate cancer. The only other evidence of record supporting the Veteran's claim is his own lay statements. In those statements, the Veteran contends that his prostate cancer manifested during service as shown by the January 1999 in-service high PSA indication. However, the Board finds that the Veteran is a layperson and there is no evidence of record to show that he has the specialized medical education, training, and experience necessary to provide a competent medical opinion as to the nature and etiology of prostate cancer. Diagnosing prostate cancer and providing an etiological opinion is medically complex in nature and not subject to be diagnosed or identified by a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's statements regarding diagnosis and etiology are not competent. Even if they were competent, they are outweighed by the medical opinion obtained from a medical professional who found that the elevated PSA during service was less likely an indication of the presence of prostate cancer at that time. The VA examiner considered the Veteran's in-service PSA result, and determined that prostate cancer was not present in service, within one year following separation from service, or due to service. The Board concludes that the preponderance of the evidence shows that prostate cancer did not manifest during service or within one year of separation from active service and was not caused by active service. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides during service. Therefore, the preponderance of the evidence is against the claim for service connection for prostate cancer and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for prostate cancer is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs