Citation Nr: 1702242	
Decision Date: 01/26/17    Archive Date: 02/09/17

DOCKET NO.  13-22 138	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for residuals of prostate cancer, claimed as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Risa Rohrberger, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1964 to October 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.

In June 2014, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.  

This matter was previously remanded by the Board in May 2015 for further evidentiary development.


FINDINGS OF FACT

1.  The Veteran did not have service in Vietnam.

2.  The Veteran served in Thailand; exposure to herbicides/Agent Orange is not verified and may not be presumed. 

3.  Prostate cancer did not have its clinical onset during service, nor did a malignant tumor manifest within one year after discharge from service (or, indeed, until many years thereafter), and there is no such evidence linking it to service, to include herbicide exposure. 


CONCLUSION OF LAW

Prostate cancer was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Compliance with Stegall

As noted in the Introduction, the Board remanded this issue in May 2015.  The Board instructed the RO to: (1) contact the Veteran and his attorney requesting any additional evidence regarding the circumstances of the Veteran's contended herbicide exposure; (2) take appropriate steps to verify the Veteran's claimed exposure; and (3) readjudicate the claim. 

VA sent the Veteran a February 2016 letter requesting additional evidence to support his contention that he either served within Vietnam or was exposed to herbicides while stationed in Thailand.  The Veteran did not respond to this letter.  The Veteran's personnel records were obtained and associated with the file.  A June 2016 Memorandum was prepared by VA indicating that the Veteran's claimed exposure to Agent Orange could not be verified in accordance with the M21-1MR.IV.  The issue was readjudicated in a June 2016 Supplemental Statement of the Case (SSOC).

As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand order of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance).

II. VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). 

VA's duty to notify was satisfied by a March 2010 letter and subsequent letters during the course of appeal.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required.  38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159 (c).  In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency.

VA has satisfied its duty to seek relevant records.  VA has obtained and associated service treatment records and identified private treatment records with the file.  The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or relevant Social Security Administration records exist.

The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required).  When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The opinion must be adequately supported and explained.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304   (2008).

The Board recognizes that the Veteran has not been afforded an examination for any of the conditions currently on appeal.  VA must provide a medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  McLendon, supra at 79.  The Court in McLendon observed that the third prong, which requires an indication that the claimant's disability or symptoms "may be" associated with the established event, is a low threshold.  Id. at 83.

In this case, although the first McLendon element appears to be satisfied as the private medical records submitted by the Veteran show a diagnosis of prostate cancer during the claims period, there is no competent and credible evidence of record establishing that an event, injury, or disease affecting the Veteran's prostate or reproductive system occurred during his period of active duty service.   Furthermore, the Veteran has not specifically claimed that he underwent relevant treatment or experienced related symptoms while in service.  Rather, the Veteran has testified that he believes the remote onset of his prostate cancer is due to in-service herbicide exposure, and as a result, he believes presumptive service connection is warranted under 38 C.F.R. § 3.309(e).  The Veteran has provided only a blanket assertion, if any, that his prostate cancer is related to service in any other way and has failed to allege any specific facts linking the conditions to active duty, other than exposure to herbicides.  For this reason, and as he is not otherwise competent to testify with respect to complex medical issues such as prostate cancer, the Board concludes that the second and third McLendon elements are not satisfied, and a return of this issue to the RO for additional development or consideration is not required. 

Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the Veteran's service connection claims have been met.  38 C.F.R. § 3.159 (c)(4); Barr, supra.

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).


III. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).

To establish a right to compensation for a present disability, 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain diseases, such as malignant tumors, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. 

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden elements for certain chronic disabilities, such as malignant tumors, is through a demonstration of continuity of symptomatology. 

In relevant part, 38 U.S.C.A. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337   (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (b).

With respect to herbicide exposure, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 38 C.F.R. § 3.309 (e) shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307 (a)(6)(iii).  Diseases associated with herbicide exposure for purposes of the presumption include prostate cancer.  38 C.F.R. § 3.309 (e).

VA has extended the presumption of exposure to Agent Orange and the presumption of service connection for prostate cancer to a Vietnam-era veteran who served in Thailand at certain designated bases, and whose duties placed him or her on or near the perimeter of the base where Agent Orange was sprayed.  VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10.

VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War.  In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes.  A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used.  VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. ("M21-1MR").

As a result, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases.  Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans.  Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence.  However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q).

Analysis 

In the Veteran's original March 2010 service connection claim, he stated that he was assigned to a two week temporary tour of duty in Tan Son Nhut, Vietnam with the 57th Ordinance Company.  At his July 2014 videoconference hearing, the Veteran testified that he arrived at Tan Son Nhut Air Force Base while traveling from Thailand to the United States for a two hour layover.  The Veteran also testified that he was exposed to herbicides while stationed at Camp Friendship in Thailand, within close proximity of Korat Air Base, as a clerk typist.  Specifically, the Veteran testified that he would routinely travel to Korat in order to eat and socialize.  In addition, the Veteran reported that due to Camp Friendship's close proximity to Korat, he was exposed to herbicides as he would routinely travel in an open air jeep to deliver morning reports, lived and worked in open air facilities on Camp Friendship, and would periodically be assigned guard duty around the perimeter of the Korat Air Base as a result of increased threat of Vietcong invasion.  

At the Veteran's July 2014 hearing, the Veteran and his representative asserted that they would be submitting additional evidence to support the Veteran's contentions, including a declassified memorandum regarding the Veteran's assertion that he was assigned to guard duty, photographs taken by the Veteran, and a map of camp friendship and Korat Air Base.  The Board specifically requested this evidence in the previously referenced February 2016 letter subsequent to the May 2015 Remand.  However, the Veteran and his representative did not respond to this letter and have not supplied any additional evidence.

The Veteran's personnel records indicate that he was stationed in Thailand from September 1964 to October 1965.  There is no indication that the Veteran served in Vietnam.  The Veteran's DD Form 214 indicates that the Veteran served in the Army and that his MOS was a Clerk Typist.  Additional personnel records indicate that during the time period during which he was stationed in Thailand, he served as a Company Clerk, a Mail Delivery Clerk, and a Clerk Typist.  

In June 2016, the RO issued a Memorandum finding that there was a lack of information required to corroborate the Veteran's contention that he was exposed to herbicides. 

With respect to the Veteran's contention that he was within the Republic of Vietnam, the Board finds that the evidence does not support such a finding.  The Board has considered the Veteran's contentions, but given their contradictory nature, a two week temporary duty versus a two hour layover, the Board does not find them to be credible evidence of in country service.  The Veteran has not provided any additional evidence to support these contentions, and his personnel records do not indicate any time spent within Vietnam.  As a result, the Board concludes that a preponderance of the evidence is against a finding that he served in Vietnam for any period of time.  

With respect to the Veteran's contention that he was exposed to herbicides while in Thailand, the Board finds that the preponderance of the evidence does not support such a conclusion.  Notably, the Veteran served in the Army with an MOS of Clerk Typist.  There is no indication in the Veteran's personnel records that he served in the capacity of a guard around the perimeter of the Korat Air Base.  While the Board notes the Veteran's contention of such temporary assignments, the Veteran has not provided any additional evidence to support these contentions.  With respect to the Veteran's contention regarding exposure during travel onto the Air Base for food or due to his work in the open air in and around Camp Friendship, the Board finds that contention far too speculative to constitute credible evidence of exposure.  The Board notes that the occupational specialties listed as having presumed exposure to herbicides in Thailand were those service members whose duties included actually walking the perimeter of the airbases.  The Veteran served in the Army and personnel records do not indicate that he was stationed at Korat Air Base, and as noted, the Board does not find sufficient evidence that he was assigned to temporary guard duty around the perimeter of the base.  As a result, the Board cannot concede exposure to herbicides on account of duty at a Royal Air Force Base, specifically Korat.  As a result, the evidence of record fails to confirm the Veteran was exposed to herbicides while serving in Thailand.

The Board is mindful of the Veteran's sincere belief that he was directly exposed to herbicides while serving in Thailand.  In light of his statements in this case, and upon review of his service personnel records, the Board finds that the weight of the credible evidence is against finding that he was exposed to herbicides while stationed in Thailand.

Accordingly, while prostate cancer is a disease that would warrant a regulatory presumption of service connection for as a result of in-service herbicide exposure, this is not applicable to the Veteran's claim as herbicide exposure is not conceded.

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for prostate cancer as secondary to herbicide exposure is not warranted.

The Board notes that the diagnosis of prostate cancer was not made until approximately 2007,  four decades after separation from active duty.   Accordingly, service connection on a presumptive basis as a "chronic" disease may not be granted as there is no evidence of a malignant tumor in service or within one year of discharge therefrom.  See 38 C.F.R. §§ 3.307, 3.309. 

Service connection on a direct basis is not warranted as service treatment records are negative for treatment or complaint of prostate cancer and there is no evidence that the Veteran's prostate cancer is related to his service on a direct basis.  Further, there is no competent evidence or opinion otherwise suggesting that there exists a medical nexus between prostate cancer or any residuals and the Veteran's service, to include as secondary to herbicide exposure and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. 

The Board finds that the competent evidence of record, while showing a diagnosis of prostate cancer and associated residuals during the claims period, does not demonstrate a malignant tumor manifested to a compensable degree within one year of separation.  Additionally there is no competent evidence that prostate cancer is related to the Veteran's service to include as secondary to herbicide exposure.

The Board notes that none of the competent medical evidence currently of record refutes the above conclusions, and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. 

The only evidence linking the prostate cancer and associated residuals to service is the Veteran's own statements.  To the extent that the Veteran contends that a medical relationship exists between his claimed current disability and service, the Board finds that the Veteran does not have the medical expertise to provide an opinion regarding the etiology of prostate cancer.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999).  Thus, the Veteran's assertions that there is a relationship between his prostate cancer and his service, to include as secondary to herbicide exposure, are not sufficient in this instance and are outweighed by other probative evidence of record.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 
For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection and the claim must be denied.  38 C.F.R. §§ 3.1, 3.102, 3.303. 


ORDER

Entitlement to service connection for residuals of prostate cancer, claimed as due to exposure to herbicides is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs