Citation Nr: 1756841 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-32 280A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for diabetes mellitus, type II (DM II), to include as due to exposure to herbicide agents. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to DM II. ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Navy from September 1965 to September 1967, with additional service in the Tennessee Air National Guard. He is a recipient of the Vietnam Service Medal and Republic of Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. The preponderance of competent and credible evidence of record weighs against a finding that the Veteran was present on the landmass or inland waters of Vietnam, therefore he may not be presumed to have been exposed to herbicide agents during service. 2. The Veteran's prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident in-service, and did not manifest within one year of the Veteran's discharge from service. 3. The Veteran's DM II is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 4. The Veteran's erectile dysfunction is not shown to be causally or etiologically related to any disease, injury, or incident in-service, and did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for DM II are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA must comply with its duties to notify and assist. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran of any information and medical or lay evidence necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify. 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 a duty to assist argument). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes providing a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4). The Board acknowledges that, to date, the Veteran has not been provided with a VA examination concerning the etiology of his diagnosed prostate cancer and DM II. The Board is mindful of the test prescribed by the Court in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) regarding whether a medical examination is necessary to adjudicate a claim. In this case, although the Veteran has submitted evidence establishing the existence of a current disability, he has provided no evidence establishing in-service incurrence, to include exposure to herbicide agents therein, or any indication that the disability may be associated with service. The mere fact that the Veteran has a disability is not enough to trigger VA's obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010). Consequently, the Board finds that VA has met its duty to assist in this matter. II. Service Connection A. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Under certain circumstances, a Veteran can establish a claim for a diagnosed disability even when the elements of service connection are not otherwise met. Service connection may be established for certain chronic diseases, including diabetes mellitus, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Additionally, a Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 is presumed to have been exposed during such service to herbicide agents, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). For the purposes of § 3.307, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). If a Veteran was exposed to an herbicide agent during active service, certain diseases, including prostate cancer and DM II, shall be presumed service connected if the requirements of section 3.307 (a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of section 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). "Service in the Republic of Vietnam" means actual service in the country of Vietnam during the period from January 9, 1962, to May 7, 1975. Service in the waters offshore or service in other locations during the Vietnam period is considered service in Vietnam only if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VA interprets 38 C.F.R. § 3.307 (a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption, and that interpretation has been upheld by the Federal Circuit. Haas, 525 F.3d at 1193-94. A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged herbicide exposure. Id. While "inland waterways" are not specifically defined in VA regulations, the VA Adjudication Procedure Manual, to which the Board may refer for interpretive guidance, considers inland waterways to include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR (M21-1MR), M21-MR, pt. IV, subpt. ii, §1, ch. H, 28, "Considering Claims Based on Service Aboard Ships Offshore the RVN." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Service Connection for Prostate Cancer The Veteran seeks entitlement to service connection for prostate cancer on a presumptive basis on the premise that he developed prostate cancer as a result of exposure to herbicide agents while serving in the Navy during the Vietnam War. See June 2013 Notice of Disagreement (NOD). The evidence of record shows that the Veteran was diagnosed with prostate cancer in July 2011. See August 2012 Prostate Cancer Disability Benefits Questionnaire (DBQ). Therefore, the Veteran meets the first requirement of service connection, a current disability. Nevertheless, service connection also requires evidence of an in-service disease or injury and a nexus between the claimed in-service disease or injury and the current disability. As previously discussed, 38 C.F.R. § 3.307 allows for the presumption of service connection for certain diseases associated with exposure to herbicide agents, including prostate cancer. The Veteran asserts that he developed prostate cancer as a result of exposure to herbicide agents during service on an aircraft carrier that took him within a few miles of the Vietnam coast. See September 2009 Statement in Support of Claim. However, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for prostate cancer on a presumptive basis. First, there is no evidence that the Veteran's prostate cancer manifested within one year of service. 38 C.F.R. § 3.307 (a)(3). According to the Veteran's Prostate Cancer DBQ, he was not diagnosed with prostate cancer until July 2011, more than three decades after service. Second, although the Veteran was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal, service records do not show that he actually served in Vietnam for the purposes of 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran does not claim and the record does not show that he ever set foot in Vietnam. The Board has considered whether the Veteran's ship, the U.S.S. Franklin D. Roosevelt (CV-42), traveled on inland waters in Vietnam during the applicable period. Haas, 525 F.3d at 1187-1190. However, this ship was a deep water (or "blue water") vessel. In order for the presumption of herbicide exposure to be extended to a Blue Water Navy Veteran, there must be evidence that the Veteran's ship operated temporarily on the inland waterways of Vietnam or that the Veteran's ship docked to the shore or a pier and the Veteran went ashore, or other competent credible evidence that the Veteran went ashore. There is no such competent and credible evidence of record in this case. As an appendix to section M21-1MR of the aforementioned VA Adjudication Procedure Manual, VA maintains a list of ships which operated primarily or exclusively on Vietnam's inland waterways, ships which operated temporarily on Vietnam's inland waterways or docking to the shore, and ships which operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. The U.S.S. Franklin D. Roosevelt is not included on this list. Moreover, of record is a January 2013 U.S. Army and Joint Services Records Research Center (JSRRC) memorandum stating that the history and deck logs of the U.S.S Franklin D. Roosevelt do not document that the ship traveled Vietnam's inland waterways or docked or anchored in Vietnamese waters. Nor was there any evidence of personnel from the ship stepping foot in Vietnam. Therefore, the Veteran's service aboard the U.S.S. Franklin D. Roosevelt does not qualify as service in the country of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); VAOPGCPREC 27-97. The Board has also considered the article submitted by the Veteran entitled "Dioxin on the Carriers," published by the Blue Water Navy Vietnam Veterans Association. The article discusses the potential presence of herbicides on naval carriers and generally suggests, among other things, that "spray drift" caused herbicides to stay airborne for long periods of time and travel substantial distances; that ships' intake systems pulled herbicides from the salt water that was then distilled for drinking; and that the make-up of Agent Orange caused it to be sticky or oily when sprayed and, especially when combined with the moist atmosphere of Vietnam, probably adhered to "virtually every returning aircraft." The authors determined that "[t]he probability that dioxin was present aboard the aircraft carriers is beyond question." Articles or treatises can provide important support if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998). Here, however, there is no indication that the coauthors of "Dioxins on the Carriers" are experts in a field that would render them competent to offer opinions on the extent to which herbicides were disseminated to and remained aboard naval ships that were operating off the coast of Vietnam. In that regard, although the authors do cite some tangentially related scientific studies in footnotes, the conclusions they reach regarding the application of those studies to naval ships operating in the offshore waters of Vietnam appear to be their own. Moreover, the article does not relate specifically to the facts and circumstances surrounding the case of this Veteran in particular. Consequently, the probative value of the article, even as a general source of objective facts, is questionable. The Board acknowledges the Veteran's assertion that 38 C.F.R. § 3.307 (a)(6)(iii) ought to be applicable to Blue Water Navy Veterans. However, while VA has a duty to administer the law under a broad and liberal interpretation, the Board must "interpret the law as it exists," consistent with the facts in each individual case. See Owings v. Brown 8 Vet. App. 17, 23 (1995). Accordingly, absent sufficient evidence that the Veteran served on the landmass of Vietnam or within its inland waterways during service, including evidence of duty or visitation in Vietnam, the Veteran did not have the requisite service in the Republic of Vietnam to allow for a presumption of exposure to herbicide agents. Although the Veteran's prostate cancer may not be presumptively associated with exposure to herbicide agents, he is not precluded from establishing service connection with proof of actual or direct causation, when all the evidence establishes that the disease was incurred in service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Veteran's claim may also be denied on a direct basis. The Veteran's service treatment records (STRs) are silent for any complaints or diagnoses of prostate cancer or associated symptomatology. Additionally, as previously discussed, the Veteran was not diagnosed with the disorder until 2011, over three decades after his separation from service. Consideration of prostate cancer on a presumptive basis is thus not warranted. See 38 C.F.R. § 3.309(a). Finally, there is no competent evidence of record that would link the Veteran's prostate cancer to any event or injury in service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim, but has not done so. See 38 U.S.C. § 5107 (a). The Board has considered the Veteran's lay testimony connecting his prostate cancer to his service in the Navy during the Vietnam War. See September 2014 Statement in Support of Claim. While it is true that as a lay person, the Veteran is competent to report the circumstances surrounding an injury or disease, as well as symptoms and history of treatment, he is not competent to make medical conclusions, especially as to such complex issues as the etiology of his prostate cancer. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for prostate cancer, to include as due to herbicide exposure, is not warranted. C. Service Connection for DM II The Veteran also seeks entitlement to service connection for DM II, diagnosed in March 2007. See August 2012 Diabetes Mellitus DBQ. The Veteran meets the first requirement of service connection, as the record shows he has a current diagnosis of DM II. However, the Veteran is unable to establish the remaining requirements of service connection-evidence of an in-service disease or injury and a nexus between the claimed in-service disease or injury and the current disability. As previously discussed, 38 C.F.R. § 3.307 allows for the presumption of service connection for certain diseases associated with exposure to herbicide agents, including DM II. However, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for DM II on a presumptive basis. First, there is no evidence that the Veteran's DM II manifested within one year of service. 38 C.F.R. § 3.307 (a)(3). According to his Diabetes Mellitus DBQ, DM II was not diagnosed until March of 2007, long after separation from active service. Second, as discussed in the previous section analyzing the Veteran's claim for prostate cancer, service records do not show that he actually served in Vietnam for the purposes of 38 C.F.R. § 3.307 (a)(6)(iii). Absent sufficient evidence that the Veteran served on the landmass of Vietnam or within its inland waterways during service, including evidence of duty or visitation in Vietnam, the Veteran did not have the requisite service in the Republic of Vietnam to allow for a presumption of exposure to herbicide agents. Although the Veteran's DM II may not be presumptively associated with exposure to herbicide agents, he is not precluded from establishing service connection with proof of actual or direct causation, when all the evidence establishes that the disease was incurred in service. Combee, 34 F.3d at 1039. However, the Veteran's claim may also be denied on a direct basis. The Veteran's service treatment records (STRs) are silent for any complaints or diagnoses of diabetes or associated symptomatology. Additionally, as previously discussed, the Veteran was not diagnosed with DM II until 2007, decades after his separation from service. Consideration of DM II on a presumptive basis is therefore not warranted. See 38 C.F.R. § 3.309(a). Finally, there is no competent evidence of record that would link the Veteran's DM II to any event in service. The Board has considered the Veteran's lay testimony connecting his disability to his service in the Navy during the Vietnam War. See September 2014 Statement in Support of Claim. While it is true that as a lay person, the Veteran is competent to report the circumstances surrounding an injury or disease, as well as symptoms and history of treatment, he is not competent to make medical conclusions, especially as to such complex issues as the etiology of his DM II. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for DM II, to include as due to herbicide exposure, is not warranted. D. Service Connection for Erectile Dysfunction The Veteran also seeks service connection for erectile dysfunction, which he asserts is secondary to his DM II. See August 2012 Claim for Compensation. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran meets the first requirement of establishing service connection on a secondary basis, as the evidence shows he has a current diagnosis of erectile dysfunction. See August 2012 Diabetes Mellitus DBQ. Moreover, the evidence indicates that the Veteran's erectile dysfunction is at least as likely as not due to his DM II. Id. However, as previously discussed, the Veteran's DM II is not a service-connected disability. Therefore, the Veteran's claim for service connection on a secondary basis must be denied. The Veteran is also unable to establish service connection on a direct basis. STRs are silent for any complaints or diagnoses of erectile dysfunction or related symptomatology. Moreover, the Veteran was not diagnosed with the condition until long after separation from active service. Finally, there is no competent evidence of record that would link the Veteran's erectile dysfunction to any event in service. Ultimately, while the Veteran has been accorded ample opportunity to present competent evidence in support of the claim, he has failed to do so. See 38 U.S.C. § 5107 (a). The Board has considered the Veteran's lay testimony connecting his disability to his service in the Navy during the Vietnam War. See September 2014 Statement in Support of Claim. While it is true that as a lay person, the Veteran is competent to report the circumstances surrounding an injury or disease, as well as symptoms and history of treatment, he is not competent to make medical conclusions, especially as to such complex issues as the etiology of his erectile dysfunction. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Consequently, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection either on a direct or secondary basis. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for erectile dysfunction, to include as secondary to DM II, is not warranted. ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is not warranted. Entitlement to service connection for DM II, to include as due to exposure to herbicide agents, is not warranted. Entitlement to service connection for erectile dysfunction, to include as secondary to DM II, is not warranted. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs