Citation Nr: 1752210 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-29 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for type II diabetes mellitus, including as due to herbicide agents exposure. 2. Entitlement to service connection for hypertension, including as due to herbicide agents exposure and/or to type II diabetes mellitus. 3. Entitlement to service connection for prostate cancer, including as due to herbicide agents exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from October 1968 to July 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2012 rating decision and notification letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. An unappealed January 2007 rating decision denied service connection for type II diabetes mellitus based essentially on a finding that there was no evidence the Veteran was exposed to Agent Orange while in service or that his type II diabetes mellitus was diagnosed while he was in service. 2. Evidence received since the final January 2007 rating decision denying service connection for type II diabetes mellitus is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. It is not shown that the Veteran served in the Republic of Vietnam or was exposed to an herbicide agent (to include Agent Orange) during service. 4. Diabetes mellitus, type II, is not service-connected; hypertension was not manifested in service or within the first postservice year, and the preponderance of the evidence is against a finding that the Veteran's current hypertension is related to an event, injury, or disease in service. 5. It is not shown that the Veteran has a current diagnosis of prostate cancer, nor is it shown that any current prostate condition is related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to warrant reopening of the claim of service connection for type II diabetes mellitus. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and the Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, 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). The Veteran's service treatment records and available postservice (VA and private) treatment records have been obtained. In this regard, the Board notes that the Veteran has indicated he was treated in 1971 at the Fayetteville VA Medical Center (VAMC) for his diabetes mellitus, hypertension, and prostate cancer. However, it was previously determined (in conjunction with an earlier claim for benefits) that treatment records dated September 1970 to October 1971 from the Fayetteville VAMC were not available. See December 2006 Formal Finding on the Unavailability of treatment records. The Veteran was advised of this in a December 2006 letter. Also, although the Veteran was not afforded a VA examination for his claims of prostate cancer and hypertension, the Board finds that one is not necessary. As set forth in more detail below, the evidence does not establish any event, injury, or disease during service regarding the Veteran's hypertension or prostate cancer. The evidence also does not establish a current diagnosis of prostate cancer. Under these circumstances, an examination or opinion is not necessary with respect to these claims. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). In January 2017 written argument, the Veteran's representative requested that the Veteran be scheduled for a VA examination to determine if his hypertension was secondary to his diabetes mellitus. However, since the Veteran has not established service connection for diabetes mellitus (and this decision does not do so), the Board finds it unnecessary to provide him with a VA examination to determine service connection on a secondary basis. Similarly, although the Veteran was not afforded a VA examination in connection with his claim to reopen the previously denied claim of service connection for type II diabetes mellitus, the Board concludes that one is not necessary. As set forth below, because the Board has determined that new and material evidence has not been received to reopen the claim, an examination is not necessary. 38 C.F.R. § 3.159(c)(4) (2017) (providing that the duty to provide a VA medical examination applies only if new and material evidence is presented or secured). Neither the Veteran nor his representative has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. A. Reopen Claim for Type II Diabetes Mellitus A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection for type II diabetes mellitus was denied initially by a January 2007 rating decision based, essentially, on a finding that there was no evidence the Veteran was exposed to herbicide agents (including Agent Orange) while in service or that his type II diabetes mellitus had its onset in service. The Veteran did not appeal the January 2007 rating decision or submit new and material evidence within one year of that decision; therefore, it is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a), (b). The evidence received since the January 2007 rating decision consists of private treatment records showing a current diagnosis of type II diabetes mellitus and statements from the Veteran describing how he believes he was exposed to herbicide agents (Agent Orange) in service. This evidence is cumulative of those previously considered. In particular, a diagnosis of type II diabetes mellitus was already of record at the time of the prior final rating decision. Also, the Veteran's newly submitted statements concerning his alleged herbicide agents exposure in service are similar to those that were considered in the January 2007 rating decision. As the Veteran has not provided any new details concerning his alleged Agent Orange exposure in service, nor has he submitted any additional evidence demonstrating how his type II diabetes mellitus is otherwise related to his military service, the Board finds that the evidence submitted by the Veteran in support of his current claim is not new and material. Accordingly, the claim for entitlement to service connection for type II diabetes mellitus is not reopened. B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including hypertension, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331,1337 (2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hypertension The Veteran seeks service connection for hypertension. His service treatment records, to include his June 1970 service separation physical examination report, are silent for any complaints, findings, treatment, or diagnoses related to high blood pressure or hypertension. His postservice treatment records also show that hypertension was not identified until many years after service. In particular, VA treatment records show the Veteran's hypertension was diagnosed in July 2012. Based on the foregoing information, there is no evidence that the Veteran's current hypertension was manifested in service or to a compensable degree in the first postservice year following his separation from active duty service. Consequently, service connection for hypertension on the basis that the disability became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from high blood pressure/hypertension continuously since service. See 38 C.F.R. § 3.303(b). Instead, it is the Veteran's contention that his hypertension is the result of herbicide agents (including Agent Orange), to which he believes he was exposed while in service. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 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. § 1113 ; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption do not include hypertension. Consequently, the herbicide exposure presumptive provisions of 38 U.S.C. § 1116 do not apply to the Veteran's claim for that disability. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange, is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, it is still essential to determine whether the Veteran was exposed to an herbicide agent in service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, 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 served in the Republic of Vietnam during the Vietnam era. "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 C.F.R. § 3.307(a)(6)(iii). At the outset, it is noteworthy that the Veteran's service personnel records do not show that his "service involved duty or visitation in the Republic of Vietnam." However, the Veteran has not asserted that he served in the Republic of Vietnam or in its inland waterways. Rather, he contends he is entitled to the presumption of herbicide exposure due to the fact that he served aboard the naval ship, USS Hanson (DD-832), which he has described as "the tenth most heavily exposed vessel to Agent Orange." See July 2012 notice of disagreement. He also states that he "served on, cleaned and serviced several naval vessels that [were] sprayed with Agent Orange and had also transported Agent Orange." Id.; see also August 2013 VA Form 9, substantive appeal. In a statement submitted in conjunction with a prior claim for benefits, the Veteran also noted that he served aboard the USS Hanson from approximately May to June 1970, when it had "just come from Vietnam." He also stated that from approximately February to March 1969, he was stationed near Pearl Harbor and went aboard the USS Enterprise to clean and repair the ship. The Veteran stated that the USS Enterprise had been used by air crews and airplanes coming back and forth from Vietnam, and it was his belief that these aircrafts "could have been used to transport or spray the Agent Orange." See August 2006 statement from Veteran. Finally, in January 2017 written argument, the Veteran's representative argued that because the USS Hanson was "included in VA's list of Navy and Coast Guard ships exposed to herbicides during the Vietnam War," the Veteran's exposure to herbicide agents should be conceded. Regarding the assertion by the Veteran's representative, the Board has reviewed VA's list of "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (November 1, 2017)" and notes that it shows the USS Hanson (DD-832) as having operated on Saigon River during July 2-3, 1965 and September 13, 1966; and as having sent motorized whaleboats ashore from Da Nang Harbor on September 17, 1972, for medical evacuation and mail pickup. As these dates either predate or postdate the Veteran's periods of active duty military service, his exposure to herbicide agents may not be conceded on this basis and the representative's argument is without merit. As for the Veteran's contentions, while he competent to recollect and report that his duties aboard the USS Hanson and USS Enterprise involved cleaning and servicing those ships, he is not competent to report that he was exposed to herbicide agents, including Agent Orange, through those duties. This is because the Veteran does not have (nor does he claim to have) firsthand knowledge that the ships he served on were sprayed with Agent Orange or transported Agent Orange. Significantly, his statement that aircrafts flying to and from Vietnam from the USS Enterprise "could have been used to transport or spray the Agent Orange," is phrased in speculative terms and is based on his belief versus actual knowledge or fact. Similarly, the Veteran has not provided any evidence to support his claim that the USS Hanson was the "tenth most heavily exposed vessel to Agent Orange." Furthermore, even if it is conceded that the USS Hanson transported and/or was exposed to herbicide agents while in the waters near Vietnam, the Veteran has not offered any evidence to substantiate his claim that its residuals would still be present by the time it returned from Vietnam and his service aboard that ship began. The Veteran has not provided any competent evidence that he was personally in contact with an herbicide agent in any tangible way. While he is competent to describe an observable event, such as having a substance touch his skin or using water, he has not shown that he has the requisite expertise to identify a chemical substance. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical or scientific expertise. See Layno v. Brown, 6 Vet App. 469-70, (1994). There is no evidence of record that the Veteran has the expertise to identify the substances he may have been exposed to without scientific training or the use of scientific testing to identify a substance he came into contact with. Thus, his statements that he was exposed to herbicides (Agent Orange) are not competent and have no probative value. The Board therefore finds that the Veteran was not exposed to any herbicide agents (to include Agent Orange) during his active duty service. Therefore, the preponderance of the evidence is against a finding that the Veteran's hypertension is in any way related to his service. Finally, the Veteran's representative has also suggested that the Veteran's hypertension may be secondary to his type II diabetes mellitus. See January 2017 written argument. Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Inasmuch as service connection for type II diabetes mellitus has been denied (see above), a threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disability (type II diabetes mellitus,) alleged to have caused or aggravated the disability for which secondary service connection is sought (hypertension) is service-connected. Accordingly, the claim of service connection for hypertension as secondary to diabetes mellitus is legally insufficient, and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) In conclusion, the preponderance of the evidence is against the Veteran's claim of service connection for hypertension, and it must be denied. Prostate Cancer The Veteran seeks service connection for prostate cancer, including as due to herbicide agents exposure. It is well-established that the existence of a current disability is the cornerstone of any claim for VA disability compensation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Court has held that this requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); but see Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (holding that "when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency."). A review of the Veteran's postservice treatment records does not show that they include a diagnosis of prostate cancer. Specifically, in a February 2004 private treatment record, it was noted that the Veteran complained of rectal bleeding. However, after a colonoscopy was performed, internal hemorrhoids were diagnosed. In an April 2009 private treatment record, an enlarged prostate was diagnosed. VA treatment records also show that the Veteran had prostate surgery in either 2011 or 2013; however, he stated it was done for an enlarged non-cancerous prostate. In February 2015, the Veteran was tested for prostate cancer; his prostate was normal without any masses. In October 2015, the Veteran complained of an enlarged prostate and symptoms. Upon a urology consultation, it was noted that the possibility of malignancy was very low. Although the Veteran is competent to report signs or symptoms of his disability, he is not competent to diagnose cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer). As the record does not show a diagnosis of prostate cancer during the relevant time period, the Board finds that there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that service connection cannot be granted "[i]n the absence of proof of a present disability."). The Board nonetheless notes that, even if the Veteran did have a diagnosis of prostate cancer or other current prostate condition, service connection would still not be warranted as it is not shown that it is related to his service. In this regard, the Veteran's claim for service connection is predicated on the theory that he was exposed to herbicide agents while in service. Moreover, prostate cancer is one of the diseases listed as being associated with exposure to certain herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307. However, as was discussed above, it is not shown that the Veteran was exposed to any herbicide agents in service. It is also not shown (nor has the Veteran alleged) that he complained of or was treated for any prostate-related conditions in service. Accordingly, the claim for service connection for prostate cancer, to include as due to herbicide agents exposure, is legally insufficient, and must be denied as lacking in legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As new and material evidence has not been received, the claim of entitlement to service connection for type II diabetes mellitus is not reopened. Service connection for hypertension, including as due to herbicide agents exposure and/or to type II diabetes mellitus, is denied. Service connection for prostate cancer, including as due to herbicide agents exposure, is denied. ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs