Citation Nr: 1761007 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 14-07 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for prostate cancer, to include as due to in-service herbicide agents and/or asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It is well-established doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits of such case, and that a potential jurisdictional defect may be raised by the tribunal, sua sponte or by any party, at any state in the proceedings, and, once apparent, must be adjudicated. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). In pertinent part, the RO has certified for appeal an issue of whether new and material evidence has been presented to reopen a service connection claim for prostate cancer. This jurisdictional hurdle to reviewing the claim on the merits is predicated upon the finding that a February 2011 Board decision, which denied service connection for prostate cancer is final and not subject to de novo review absent a reopening by new and material evidence. However, the record reflects the receipt of highly relevant military personnel records which were not before the Board at the time of the February 2011 decision, but existed at the time of the decision. In such a situation, the Board must reconsider the claim on the merits. 38 C.F.R. § 3.156(c) (2017). Thus, the Board has rephrased the claim on the title page. In June 2017, the Veteran testified at a videoconference hearing held at the RO before the undersigned. A transcript of the proceedings has been associated with the record. FINDING OF FACT The Veteran's prostate cancer manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease, or to be related to in-service exposure to herbicide agents and/or asbestos. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issue decided below. 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 duty to assist argument). As such, the case is ready to be decided on its merits. II. Service Connection Generally, to establish service connection a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include cancer, 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; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For cancer, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). 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. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). 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. Finally, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an "herbicide agent" includes the chemicals 2,4-D; 2,4,5-T and its contaminant TCCD; cacodylic acid; and, picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide agents exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed. Id. The Veteran claims that developed prostate cancer as a result of in-service herbicide agents exposure while aboard the U.S.S. Ranger during his active service. The Veteran has posited several theories regarding his exposure to herbicide agents. He has asserted that herbicide agents exposure was caused by wind, working on aircraft that flew over the landmass of the Republic of Vietnam (Vietnam), and by ships that resupplied the U.S.S. Ranger that may have operated in the inland waterways of Vietnam. In its November 2010 brief, the Veteran's representative contended both that the Veteran was exposed to asbestos during his active service and that this exposure could be the cause of the Veteran's current prostate cancer. The Veteran detailed his claimed exposure to asbestos in a December 2006 letter to then Senator Hillary Clinton. The Veteran stated that he served as a firefighter during his service and that while fighting fires and cleaning up after them, he was exposed to asbestos. First, the Board acknowledges that the Veteran suffers from prostate cancer. Records from Dr. D.S. reflect that the Veteran was diagnosed as suffering from prostate cancer in spring 2004. He underwent surgery in June 2004 and continued treatment through April 2005. Records from Dr. D.S. and the VA from 2010 show that the Veteran is again receiving treatment for prostate cancer. Therefore, the requirement for a current disability is met. Turning to the second element, the preponderance of the evidence is against a finding of an in-service event, injury or disease. The Veteran has not argued and the service treatment records (STRs) do not reflect treatment for or a diagnosis of prostate cancer while in service. No complaints or symptoms associated with prostate cancer are of record, and the Veteran's July 1967 separation examination is silent for any notations of symptoms or a diagnosis of prostate cancer. Indeed, both the Veteran and the medical evidence indicate that prostate cancer did not manifest until well after his separation from service. Instead, the Veteran contends that his prostate cancer is due to in-service exposure to herbicide agents, and that this exposure resulted in his current prostate cancer. The Veteran has not argued that he either set foot in Vietnam or that the U.S.S. Ranger docked at a shore or pier in Vietnam, operated in an inland waterway, or operated on close coastal waters for extended periods. On the contrary, the Veteran testified that he did not set foot in Vietnam. There is no evidence that the Veteran's active service satisfies the requirement of in-service duty or visitation in the Republic of Vietnam. The Veteran's DD-214 reflects that he served in the United States Navy and was at sea for 1 year and 9 months. The Veteran's service personnel records show that he served aboard the U.S.S. Ranger from November 1965 to July 1967. The Naval History and Heritage Command wrote that during the time that the Veteran was aboard the U.S.S. Ranger, the ship was stationed at Naval Air Station Alameda, California until December 1965. The ship then conducted periods of special operations in the Gulf of Tonkin from that date until August 1966, at which time the ship left the Gulf of Tonkin and returned to California. By the time the U.S.S. Ranger left California to return the Gulf of Tonkin in November 1967, the Veteran had separated from active service. Further, the Veteran himself does not contend that he was present on the landmass or the inland waters of Vietnam. In May 2009, the Joint Services Records Research Center (JSRRC) wrote that there was no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the United States to Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported herbicides. Additionally, JSRRC could not document that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or through contact with equipment used in Vietnam. In July 2017, the Veteran submitted an article regarding herbicide contamination of aircraft carriers and their crews in the Gulf of Tonkin. The article asserts that blue water aircraft carriers were contaminated by dioxin particles. There is no evidence that the U.S.S. Ranger was deployed or docked anywhere in Vietnam other than Yankee Station in the Gulf of Tonkin. Thus, the Veteran's service aboard the U.S.S. Ranger does not qualify as service in the country of Vietnam for purposes of the herbicide presumption. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. With respect to the Veteran's contention that, due to his close proximity to the Vietnam coast, he was exposed to herbicide agents through the air, the Board notes that this matter has been settled. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Indeed, in upholding VA's requirement that a veteran must have been present within the land borders of Vietnam, the United States Court of Appeals for the Federal Circuit (Federal Circuit) essentially reaffirmed the VA's discretion to maintain a 'bright line' rule against those claiming presumptive exposure to herbicides via spray drift in the air off the coast. See Id. To extent that the Veteran asserts that he was exposed to herbicide agents blowing from Vietnam, the Board finds the evidence does not show that he is competent to report on the nature of any airborne particulates that he may have been exposed to. In essence, his contention that he may have been exposed to herbicide agents is speculative and unsupported by the record. Accordingly, the Board cannot find the Veteran's assertion that he was exposed to herbicide agents via wind to be probative evidence. With regard to the Veteran's assertions that he was exposed to herbicide agents through contact with aircraft that flew over Vietnam or through equipment that was in Vietnam, the Board finds that the Veteran's assertions are outweighed by the findings of the JSRRC. The Veteran's theories of exposure are speculative and the May 2009 JSRRC findings were prepared after detailed research regarding herbicide exposure. Additionally, the Board finds that the arguments provided in the July 2017 articles are also outweighed by the JSRRC's findings that are based on empirical evidence. The authors of the July 2017 articles cite "Newtonian physics" as support for their assertions. There is no indication that the authors are competent to assert that aircraft carriers were contaminated by dioxin exposure. In short, there is no probative evidence of record establishing that the Veteran was actually exposed to herbicide agents during his service aboard the aircraft carrier U.S.S. Ranger while positioned at Yankee Station in the Gulf of Tonkin. As there is no evidence of prostate cancer in service or actual exposure to herbicide agents, the Board finds the preponderance of the evidence is against a finding of an in-service event, injury, or disease. Moreover, concerning the third element, there is no competent and credible evidence of record linking the Veteran's prostate cancer to in-service herbicide agents exposure specifically or his active duty service generally. While the Veteran has asserted his prostate cancer is related to service, the Veteran is not competent to provide such as opinion, as to do so requires expertise in the field of oncology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The private and VA treatment records associated with the claims file are silent for any opinions linking the Veteran's prostate cancer to either his active duty service generally or exposure to herbicide agents specifically. Prior to that date, the medical and lay evidence is silent for any indication that prostate cancer was present at any point. The Board has also considered the Veteran's assertions regarding in-service exposure to asbestos. Even if the Board were to concede that the Veteran was exposed to asbestos during his active service, there is no medical evidence indicating a link between the Veteran's prostate cancer and his claimed in-service exposure to asbestos, let alone a medical conclusion that the two are related. Additionally, the Veteran, as a layperson, is not competent to comment on the relationship between asbestos and prostate cancer. Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran's prostate cancer is related to his active service, and therefore the third element is not met. As neither the second nor the third element has been met, service connection for prostate cancer on a direct basis is not warranted. 38 C.F.R. § 3.303. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with prostate cancer, which is encompassed by the term "malignant tumors," and is therefore considered a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). As such, both theories are potentially applicable in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. However, the preponderance of the evidence is against a finding that the Veteran's prostate cancer either manifested to a sufficient degree in-service so as to identify the disease or manifested to a compensable level in the first post-service year. As noted above, his STRs are silent for treatment for or diagnosis of prostate cancer. The Veteran's December 1967 separation examination is silent for any notations concerning symptoms of prostate cancer. Post-service treatment records and the Veteran's lay statements are in agreement that his prostate cancer did not manifest until well after his separation from active service. As there is no evidence of in-service manifestation or manifestation within the first post-service year, service connection for prostate cancer based on the presumption in favor of chronic disease or continuity of symptomatology is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Concerning herbicide agents exposure, prostate cancer is a disability recognized by VA as being associated with herbicide agents exposure. 38 C.F.R. § 3.309(e). However, as noted above, the Veteran does not have qualifying service in Vietnam to be considered to have been presumptively exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). There is no evidence in the command history or deck logs of the U.S.S. Ranger that it was deployed or docked anywhere in Vietnam other than Yankee Station in the Gulf of Tonkin. There is no evidence that the U.S.S. Ranger was ever deployed to the inland waterways, bays, and harbors of Vietnam, and therefore whether service in any of those areas constitutes in-country service is not relevant to the current appeal. See Gray v. McDonald, 27 Vet. App. 313 (2015). Thus, the Veteran's service aboard the U.S.S. Ranger does not qualify as service in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. Further, as noted above, the preponderance of the evidence is against a finding that the Veteran had actual exposure to herbicide agents while in service, including through windborne elements. As the Veteran had no actual or presumptive exposure to herbicide agents, presumptive service connection for prostate cancer based on exposure to herbicide agents in service is not warranted. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service injury, event, or disease, that the Veteran's prostate cancer is causally related to his service, manifested within an applicable presumptive period, or that it is related to in-service herbicide agents exposure. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for prostate cancer, to include as due to in-service herbicide agents and/or asbestos exposure, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs