Citation Nr: 1750439 Decision Date: 11/07/17 Archive Date: 11/17/17 DOCKET NO. 13-03 399A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as a result of Agent Orange (herbicide) and asbestos exposure. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). Subsequent to the most recent supplemental statement of the case, the Veteran submitted additional evidence in support of his appeal. However, RO review of such evidence was waived. Therefore, the Board can proceed. In February 2013, the Veteran requested a travel Board hearing. A hearing was scheduled for September 13, 2017. In August 2017, the RO sent to the Veteran's last known address notice regarding the time, date, and location of the scheduled hearing. The notice was also sent to the Veteran's representative. The notice sent to the Veteran's address was returned as undeliverable. The Veteran did not appear for the scheduled hearing. Neither the Veteran nor his representatives have indicated a desire for a rescheduled hearing and neither has provided either a new address or any cause for failure to attend the scheduled hearing. The Board may proceed to consider the merits. 38 C.F.R. § 20.704 (d). FINDINGS OF FACT 1. There is no persuasive evidence the Veteran was actually exposed to herbicide agents or asbestos during his service, and there is no other suggestion of how his prostate cancer might be related to his service. 2. The Veteran's erectile dysfunction is not related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer, to include as a result of herbicide and asbestos exposure, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1110, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for erectile dysfunction, to include as secondary to prostate cancer, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any specific issues with the duty to notify or duty to 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 a duty to assist argument). The Board acknowledges that the Veteran has not been provided with VA examinations in conjunction with his service connection claims. However, as his service and post-service treatment records fail to suggest that he developed prostate cancer or erectile dysfunction during or soon after service, and, as will be discussed below, the probative evidence of record fails to indicate that he was actually exposed to Agent Orange or asbestos during service, VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Veteran claims entitlement to service connection for prostate cancer, to include as a result of herbicide and asbestos exposure, and entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer. Specifically, he asserts in an October 2010 statement that while stationed on the USS John R. Craig, the vessel spent two or three months in dry dock, meaning the ship was having a redo on the skin, electric, and plumbing. There were asbestos wraps on all the pipes on the ship and he encountered Agent Orange. He served in Vietnamese waters at about a mile or less off the coast running security for small craft airplanes. He elaborated in a June 2011 statement that his ship shadowed the USS Hamner, which was on the list of Brown water ships. He also remembered "Vietnam officers coming and going on board my ship and don't know how they got there and how they got off the ship." Furthermore, he claims in a June 2015 statement that the water he washed his clothes in and showered in was not fresh water, he remembered searching sand pans for guns and taking the rice that "certainly was contaminated from Agent Orange," and the mail was most likely contaminated with Agent Orange. Also, his ship was 3000 yards from shore supplying support to the troops and mist from Agent Orange hit him. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310) were initially provided to the Veteran in the 2013 Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. The Board notes the Veteran was diagnosed with prostate cancer in August 2008. Thus, his disability was not factually shown during service and did not manifest to a compensable degree within one year of separation from service. There is also no continuity of symptomatology, as the Veteran's medical records do not indicate he complained of symptoms of prostate cancer or sought ongoing treatment prior to his formal diagnosis. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a claimant can show, in pertinent part, that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Further, "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); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom, Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). To establish qualifying "service in the Republic of Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); VAOPGCPREC 27-97. First, as to actual duty or visitation in Vietnam, the Veteran has never alleged such. Importantly, the Veteran has never alleged that he, personally, went ashore. Second, as for service in the "waters offshore," a veteran who served on a blue water vessel must show that the conditions of his or her service involved duty or visitation in the Republic of Vietnam. See VA Adjudication Manual, M21-1MR, IV.ii.2.C.10.k [M21-1MR]; Haas v. Peake, 545 F.3d 1168 (2008). When a veteran claims exposure to herbicides during service aboard a Navy or Coast Guard ship that operated on the offshore waters of the Republic of Vietnam, exposure may be established on a presumptive basis if evidence shows that while the veteran was aboard, 1) the ship docked on the shores or piers of the Republic of Vietnam; or 2) the ship operated temporarily on the Republic of Vietnam inland waterways; or 3) the ship operated on close coastal waters for extended periods, with evidence that crew members went ashore, or smaller vessels from the ship went ashore regularly with supplies or personnel. In addition, the veteran must have stated that he went ashore when the ship docked or operated on close coastal waters for extended periods, if the evidence shows the ship docked to the shore or pier. VA Adjudication Manual, M21-1MR, IV.ii.2.C.10.k [M21-1MR]. Here, again, the Veteran does not contend that he went ashore as part of his duties or that the USS Craig docked at Vietnam. While the Board acknowledges the Veteran's assertions that his ship shadowed the USS Hamner, which was on the list of Brown water ships, and submitted numerous pieces of evidence noting a correlation between serving in Vietnam and exposure to Agent Orange, a report from the Personnel Information Exchange Service dated August 2010 noted the Veteran served aboard the USS Craig in the official waters of Vietnam, but the record provided no conclusive proof of in-country Vietnam service. A report from the Defense Personnel Records Information Retrieval System (DPRIS) printed September 2010 noted that the 1996 command history of the USS Craig did not document that the ship docked, transited inland waters or that personnel stepped foot in the Republic of Vietnam. Additionally, a September 2010 memorandum noted a formal finding of lack of information required to verify in-country Vietnam service. Therefore, there is no evidence the Veteran had "in-country" service or was close enough to the coast to have been exposed to Agent Orange. Accordingly, the Veteran is not entitled to the presumption of exposure to Agent Orange. Even though the Veteran is not entitled to the presumption of exposure to Agent Orange pursuant to 38 C.F.R. § 3.307(a)(6)(iii), he may, nonetheless, establish service connection if he has put forth sufficient evidence to demonstrate by an equipoise standard that he was actually exposed to Agent Orange. The Board finds that the evidence does not factually support finding exposure to Agent Orange. The Veteran contends that he was exposed while serving on the USS Craig as the waters were contaminated, Vietnam officers would come and go on his ship and the mail was contaminated. However, there is no presumption of "secondary exposure" based on handling equipment (or, in this case, interacting with people and mail) that was once in Vietnam. See VA Adjudication Procedure Manual Rewrite M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection 10.r. The "second hand" exposure alleged by the Veteran is too remote and attenuated to support a finding of actual exposure. Importantly, the Veteran has merely stated generally that the people his ship picked up and mail had been exposed. Obviously he was alleging some residual contamination, but there is no basis upon which to quantify the contamination. The Board thus finds that the Veteran's statements are not competent evidence, and thus cannot support a finding of actual exposure. Additionally, lay evidence may be competent on a variety of matters. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Veteran's lay testimony is not competent to establish that the people and mail he was exposed to were actually contaminated by herbicides or Agent Orange. This Veteran has not demonstrated any experience with herbicides or chemicals that would have allowed him to recognize it in service. Moreover, he has provided no indication that he is competent to identify or distinguish the herbicides listed in 38 C.F.R. § 3.307 (a)(6). Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The record also does not establish the Veteran has the required expertise to determine whether the water used on the ship was fresh. While the Veteran is competent to report he was told the water was contaminated with Agent Orange, the evidence has not demonstrated that those individuals were competent to identify or distinguish herbicides or contaminated water. Id. In fact, his testimony that he was exposed to Agent Orange on the ship was inadequate as entirely speculative, and he has offered no evidence other than simply stating it is so. There is no assumption service members on naval ships were exposed to Agent Orange simply by being in the general vicinity of Vietnam. A July 2011 private treatment record notes there was a known association with Agent Orange and prostate cancer in serviceman. "However, it cannot be determined how much exposure the patient received while service in the Navy." The Board does not find this statement probative because it is speculative and there is no persuasive evidence in the record to indicate the Veteran was directly exposed to Agent Orange. Additionally, regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations. VA has issued a circular on asbestos-related diseases, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), which provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates. See M21-1MR, Part IV, Subpart ii, Ch.2, Section C, Topic 9. In this regard, the M21-1MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: fibrosis, the most commonly occurring of which are interstitial pulmonary fibrosis or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; lung cancer, bronchial cancer, cancer of the gastrointestinal tract, cancer of the larynx, cancer of the pharynx, and cancer of the urogenital system (except the prostate). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining; milling; work in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacture and servicing of friction products such as clutch facings and brake linings; and manufacture and installation of roofing and flooring materials; asbestos cement sheet and pipe products; and military equipment. The applicable sections of the M21-1MR note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The guidelines point out that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. The Board notes the Veteran does not allege any specific event resulted in exposure to asbestos, instead he suggests that his service aboard a navy ship brought him into regular contact with asbestos as it was throughout the ship. His military occupation was a barber. A barber is not one of the major occupations and does not perform duties similar in nature to one of the major occupations that the M21-1MR lists as involving exposure to asbestos. The Board cannot assign significant probative value to the Veteran's allegations of in-service asbestos exposure. The M21-1MR does not provide any support for the assertion of asbestos exposure while working as a barber. Moreover, the Veteran has asserted working on ships where there was asbestos but he has not described how or if he actually ingested or inhaled large amounts of toxic asbestos fibers. The Veteran has not presented competent and credible evidence as to whether he inhaled or ingested asbestos while serving with the U.S. Navy. He has only made general assertions that he was near asbestos on a ship. The service personnel records and service treatment records do not document asbestos exposure. Thus, the Board finds that the weight of the evidence establishes that the Veteran was not exposed to asbestos in active service and he did not inhale asbestos fibers in active service. Based on the totality of the evidence, the Board finds that the Veteran was not exposed to the herbicide Agent Orange in service nor was he exposed to asbestos, either on a presumptive or direct basis. He has offered no other theory as to how his prostate cancer might be related to his service. Therefore, without persuasive evidence he was actually exposed to Agent Orange or asbestos, service connection for prostate cancer is not warranted. Additionally, the Veteran claims his erectile dysfunction is secondary to his prostate cancer. The record indicates the Veteran has a current diagnosis of erectile dysfunction. However, because the Board is denying service connection for prostate cancer, as explained above, secondary service connection is not warranted as a matter of law. 38 C.F.R. § 3.310. Furthermore, the Board notes the evidence of record does not include any medical opinion otherwise relating the Veteran's erectile dysfunction directly to his active service and the Veteran does not assert such. There is no competent or credible medical or lay evidence that the Veteran's erectile dysfunction began in or is related to his service. Therefore, the Board finds service connection for prostate cancer and erectile dysfunction is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer, to include as a result of herbicide and asbestos exposure, is denied. Service connection for erectile dysfunction, to include as secondary to prostate cancer, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs