Citation Nr: 1759985 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-19 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure. 2. Entitlement to service connection for a heart condition, to include as due to herbicide agent exposure. 3. Entitlement to service connection for a skin disorder (claimed as skin discoloration), to include as due to herbicide agent exposure. 4. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from August 1968 to May 1971, with service in Thailand from February 1969 to January 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision and a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Regarding the issue of entitlement to service connection for a heart condition, the Board notes that this was developed and adjudicated as "myocardial infarction claimed as heart attack." However, the record reflects that the Veteran has diagnoses of myocardial infarction and coronary artery disease. Therefore, the Board has more generally characterized the issue of service connection for myocardial infarction claimed as heart attack as a heart condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In January 2015 and January 2017, the Board remanded the case for further development. FINDINGS OF FACT 1. It is shown that the Veteran had service at Korat AB in Thailand from February 1969 to January 1970. 2. It is not shown that the Veteran was exposed to herbicide agents (to include Agent Orange) during service. 2. It is not shown that prostate cancer was manifested in service or within the first postservice year, and the preponderance of the evidence is against a finding that the Veteran's current prostate cancer is related to an event, injury, or disease in service. 3. It is not shown that a heart condition was manifested in service or within the first postservice year, and the preponderance of the evidence is against a finding that the Veteran's current heart condition is related to an event, injury, or disease in service. 4. It is not shown that the Veteran's skin disorder manifested in service or is related to an event, injury, or disease in service. 5. It is not shown that the Veteran has a current diagnosis of type II diabetes mellitus, nor is it shown that diabetes mellitus is related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition 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). 2. 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 (2017). 3. The criteria for service connection for a skin disorder 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). 4. The criteria for service connection for type II diabetes mellitus 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 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). All pertinent and relevant records have been obtained, to the extent available. Also, although the Veteran was not afforded VA examinations for any of the claims decided herein, 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 claimed conditions. The evidence also does not establish a current diagnosis of diabetes mellitus. 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). Finally, 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. Factual Background, Legal Criteria, 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. 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 (2012); 38 C.F.R. § 3.303(a) (2017). 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) (2017). 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). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases (to include prostate cancer, diabetes mellitus, and myocarditis) manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2017). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b) (2017). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. In addition, service connection may be presumed if a veteran was exposed to an herbicide agent during active service. Under the current regulations, presumptive service connection is warranted for type II diabetes mellitus and prostate cancer, among other disorders. 38 C.F.R. § 3.309(e) (2017). Presumptive service connection for diabetes or prostate cancer as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.309(e) (2017). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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." 38 U.S.C. § 1116(f) (2012). 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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2017). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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(b) (2012); 38 C.F.R. § 3.102 (2017). 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 veteran 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). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for type II diabetes mellitus, prostate cancer, a heart condition, and a skin disorder. Specifically, it is the Veteran's contention that his disabilities are due to herbicide agent exposure. He asserts that while he was stationed at Korat AB, Thailand, he was exposed to Agent Orange while serving as a stock control and accounting specialist. See December 2008 Statement in Support of Claim and July 2017 Joint Services Records Research Center Coordinator Memorandum. The Veteran also asserts that he was exposed to Agent Orange due to serving on or near or near the perimeters of the military bases in Thailand. He states that Agent Orange was sprayed from helicopters, trucks, boats, etc., and it contaminated the soil and water supply. See August 2011 Congressionals. According to the VA M-21-1 Adjudication Procedure Manual, 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 basis. See M-21-1, Part IV, Subpart ii, 1.H.5.a. If the veteran served at a U.S. Army Base in Thailand during the Vietnam Era as a member of a military police unit or with a military police occupational specialty, then herbicide agent exposure should be conceded if the veteran stated his duty placed him at or near the base perimeter. See M-21-1, Part IV, Subpart ii, 1.H.5.b. Here, the Veteran's military personnel records show that he was stationed at the Korat AB in Thailand from February 6, 1969 to January 18, 1970, and his military occupational specialty (MOS) was repairman. In June 2017, VA issued a Memorandum of Record, which stated that only a limited testing of tactical herbicides was conducted in Thailand from April 2 through September 8, 1964, specifically at Pranburi Military Reservation associated with the Replacement Center of the Royal Thai Army, near Pranburi, Thailand. The memorandum noted that the location was not at or near any U.S. Military installation or Royal Thai Air Force Base. The memorandum further stated that there were records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control and the Base Civil Engineer. In July 2017, the Joint Services Records Research Center (JSRRC) Coordinator issued a memorandum concluding that the Veteran being exposed to Agent Orange could not be conceded. The memorandum stated that while the Veteran did serve at Korat AB, he was not in the Air Force serving as either a policeman or patrol dog handler; he was in the army serving as a repairman, which would not have put him near the base perimeter. For these reasons, the Board concludes that the Veteran was not exposed to any herbicide agents during his military service. Although the Veteran served on an Air Base in Thailand, his MOS did not put him at or near the perimeters of the base. Additionally, the June 2017 Memorandum of Record stated that limited testing of herbicides was done at Pranburi Military Reservation, which was a place that the Veteran was never stationed. Furthermore, 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. Notwithstanding the inapplicability of the herbicide agent presumptive service connection regulations, the Board is obligated to fully consider the Veteran's service connection claim on a direct basis. See Combee, 34 F.3d at 1043-1044. Turning to the medical evidence of record, the Veteran's service treatment records are silent for any report, complaints, findings, treatment or diagnosis of either a heart condition, diabetes, prostate cancer, or a skin disorder. An April 1968 Report of Medical Examination (enlistment) showed that the Veteran was clinically evaluated as normal. Also, the Veteran's March 1971 Report of Medical Examination (separation) did not note that the Veteran had any problems with his heart, diabetes, prostate, or skin. Also, on the Veteran's March 1971 Report of Medical History (separation), the Veteran checked "no" next to "skin disease," "shortness of breath," "pain or pressure in chest," "high or low blood pressure," and "frequent or painful urination." This is highly probative evidence against a finding that the Veteran had either diabetes, a heart condition, a skin disorder, or prostate cancer during service. With respect to the Veteran's claims for service connection for a skin disorder, a heart condition, or prostate cancer, his postservice treatment records show that the Veteran was neither diagnosed with nor showed symptoms of any of those claimed conditions until years after service. In particular, VA treatment records show that the Veteran first began having chest pain in June 2001. In March 2005, the Veteran was seen in the emergency room with complaints of chest pain. However, an evaluation showed that the results were negative for ischemic changes with exercise. The Veteran was started with b-blocker and statin. Private treatment records show that the Veteran was diagnosed with acute myocardial infarction, and subsequently had heart surgery in May 2008. In September 2011, an Ischemic Heart Disease Disability Benefits Questionnaire (DBQ) was completed; the Veteran was diagnosed with coronary artery disease. As to the Veteran's prostate cancer, VA treatment records show that the Veteran was diagnosed in December 2007 because his prostate-specific antigen (PSA) level was 6.5. In March 2008, the Veteran had a laparoscopic retropubic prostatectomy. As to the Veteran's skin disorder, the Veteran claimed that he started to break out a year after service. See February 2017 Medical Treatment Record - Non-Government Facility. An August 2016 private treatment record revealed that the Veteran had idiopathic guttate hypomelanosis on the left proximal dorsal forearm and right proximal dorsal forearm. Based on the foregoing, as there is no showing of prostate cancer or myocarditis in service or to a compensable degree in the year after service, presumptive service connection for prostate cancer and myocarditis as a chronic disease is not warranted. See 38 C.F.R. § 3.309(a) (2017). Neither is there a basis for granting service connection for prostate cancer or myocarditis on the basis of continuity of symptomatology since there were no manifestations of the disabilities within service. See 38 C.F.R. § 3.303(b) (2017); see also Savage v. Gober, 10 Vet. App. 488 (1997). Next, the Board looks to the medical opinions of record to determine whether the Veteran's disabilities are related to his military service. In a July 2008 Agent Orange Examination, it was suggested that the Veteran's residuals of prostate cancer surgery, coronary artery disease, and hypopigmented scars were probably related to the Veteran's Agent Orange exposure. This opinion is not probative in value and carries no weight because the language is speculative and there is no rationale accompanying the opinion. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). Moreover, as mentioned above, the Board concluded that the Veteran was not exposed to Agent Orange. The July 2008 Agent Orange Examination was based on the Veteran's belief and statements that he was exposed to herbicide agents, which the Board previously determined that the Veteran is not competent to determine the nature of such substances. Further, the Board acknowledges the Veteran's statements that his conditions are related to his military service. While the Veteran may be competent to testify to the symptoms that are observed, it is beyond his competence as a layperson to opine regarding medical etiology. The Veteran lacks the training to opine whether his conditions are related to his military service. This is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In conclusion, the Board finds that the preponderance of the evidence is against the claim for service connection for prostate cancer, a skin disorder, and a heart condition. The Veteran was not shown to have been exposed to any herbicide agents during service, and service treatment records were silent for any of the Veteran's claimed disorders. Therefore, service connection for prostate cancer, a skin condition, and a heart condition, to include as due to herbicide agent exposure, must be denied. As to the Veteran's claim for type II diabetes mellitus, postservice treatment records do not show that the Veteran has been currently diagnosed with such a condition. In an August 2005 VA treatment record, it was noted that the Veteran was worried that he might be diabetic; however, the physician assured the Veteran that he was not diabetic. In October 2007, it was noted that the Veteran was not diabetic. The Board acknowledges that in a May 2008 private treatment record, it was noted that the Veteran had a history of diabetes. However, this evidence is not consistent with the remainder of the Veteran's record. Notably, the annotation of the Veteran having a history of diabetes is not the same as being given an actual diagnosis of diabetes. As it was noted in the history section of the treatment record, it was likely based on the Veteran's lay statements of having diabetes and not an actual evaluation. More telling, is the fact that in a subsequent September 2009 VA treatment record, the Veteran denied having a history of diabetes. Although the Veteran is competent to report signs or symptoms of his disability, he is not competent to diagnose diabetes. 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 diabetes 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 diabetes, 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, and that diabetes mellitus is one of the diseases listed as being associated with exposure to certain herbicide agents. See 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (2017). However, as was discussed above, it is not shown that the Veteran was exposed to any herbicide agent in service. It is also not shown (nor has the Veteran alleged) that he complained of or was treated for diabetes mellitus in service. Accordingly, the claim for service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is legally insufficient, and must be denied as lacking in legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for prostate cancer, to include as due to herbicide agent exposure, is denied. Service connection for a heart condition, to include as due to herbicide agent exposure, is denied. Service connection for a skin disorder (claimed as skin discoloration), to include as due to herbicide agent exposure, is denied. Service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs