Citation Nr: 1802297 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-31 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as secondary to herbicide-agent exposure. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to herbicide-agent exposure and prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran and his spouse testified at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In September 2014, the Veteran submitted a statement from his private doctor. Although the Veteran did not submit a waiver for that evidence, his substantive appeal was received after February 2, 2013. Therefore, that evidence shall be subject to initial review by the Board because the Veteran did not request in writing that the agency of original jurisdiction (AOJ) initially review such evidence. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). The additional records added to the claims file after the last adjudication are not pertinent to the claims on appeal. 38 C.F.R. § 20.1304. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) ( 2012). FINDINGS OF FACT 1. The preponderance of competent and credible evidence shows that the Veteran served in South Korea from April 1961 to August 1962. 2. The preponderance of competent and credible evidence weighs against a finding that the Veteran was exposed to herbicide agents in service while serving in South Korea, visiting Midway Island and Wake Island, and traveling on the USS General J. C. Breckinridge. Therefore, exposure to herbicide agents may not be presumed. 3. The preponderance of competent and credible evidence weighs against a finding that prostate cancer was demonstrated in-service, that prostate cancer was compensably disabling within a year of separation from active duty, or that there is a nexus between a current diagnosis of prostate cancer and service. 4. The preponderance of competent and credible evidence weighs against a finding that erectile dysfunction was demonstrated in-service or that there is a nexus between a current diagnosis of erectile dysfunction and service. 5. Service connection is not in effect for prostate cancer. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred while on active duty, and it may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2017). 2. Erectile dysfunction was not incurred in service, may not be presumed to have been so incurred in service, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letters dated in October 2013 and January 2014. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott, 789 F.3d at 1381 (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). Governing Law and Regulation Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C.A. §§ 1110, 1131. Service connection may also be warranted 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). In order to establish service connection for the claimed disorder, 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Prostate cancer is listed under that section as one of these diseases. The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for Veterans who have any of several diseases and served on active duty between April 1968 and August 1971 in a unit that, as determined by the Department of Defense, operated at or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. Certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis The Veteran essentially contends that he was exposed to herbicide agents while serving in South Korea, visiting Midway Island and Wake Island, and traveling on the USS General J. C. Breckinridge. The Veteran's service personnel records show that he served in South Korea from April 1961 to August 1962. He did not have active service during the period in which a veteran could be presumed to have been exposed to herbicide agents while serving in a unit in or near the Korean DMZ - April 1968 to August 1971. There is no evidence that he served in the Republic of Vietnam, and he does not allege that he had such service. In an October 2013 letter, the RO asked the Veteran to provide an explanation of when, where, and how he was exposed to herbicide agents. The Veteran did not respond to that letter. In February 2014, the RO determined a request by the U.S. Army and Joint Services Records Research Center (JSRRC) could not be conducted because the Veteran had not provided any information required by JSRRC to conduct a search. As the Veteran did not provide any additional information as to his alleged exposure to herbicide agents while serving in South Korea, visiting Midway Island and Wake Island, and traveling on the USS General J. C. Breckinridge, the preponderance of competent and credible evidence weighs against a finding that the Veteran was exposed to herbicide agents in service while serving in South Korea, visiting Midway Island and Wake Island, and traveling on the USS General J. C. Breckinridge. Therefore, as actual exposure has not been shown by service department record, and there is no credible evidence otherwise establishing exposure to herbicides, the Board finds that exposure to herbicides is not conceded, and service connection cannot be granted on a presumptive basis for disability as a result of herbicide exposure. Although the Veteran has not been shown to warrant a regulatory presumption of service connection for his prostate cancer as a result of in-service herbicide exposure, his claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). In an August 2014 statement, the Veteran's private treating doctor noted that the Veteran was exposed to Agent Orange and Agent Blue in service. This notation of in-service exposure to Agent Orange and Agent Blue is merely the reporting by the Veteran of his asserted history of exposure to herbicide agents. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, the August 2014 statement of a private doctor is not competent evidence of in-service exposure to herbicide agents. The Board has also considered the statements of the Veteran that he was exposed to herbicide agents that were allegedly present in South Korea, Midway Island, Wake Island, and the USS General J. C. Breckinridge. The Board is cognizant of the holding in Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The United States Court of Appeals for Veterans Claims (the Court) in Bardwell held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. The Veteran has not been shown to have any expertise to determine if he had been exposed to Agent Orange or Agent Blue serving in South Korea, visiting Midway Island and Wake Island, and traveling on the USS General J. C. Breckinridge. As for Hickson and Wallin element (1), current disability, the medical evidence shows diagnoses of prostate cancer and erectile dysfunction. Therefore, element (1) under both theories of entitlement is satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board will address disease and injury separately. Concerning in-service disease or injury, the Board notes that Veteran's service treatment records are negative for any finding, complaints, or treatment related to prostate cancer or erectile dysfunction. At an April 1967 separation examination, the Veteran denied any history of frequent or painful urination. The genitourinary system and anus and rectum were all normal. There are no indications in the record of any such problem or diagnosis before 2013, which is the year of diagnoses of prostate cancer and erectile dysfunction. The lack of time between service discharge and onset of disability does not in and of itself preclude establishing service connection for this disability if the competent evidence shows that the disability is related to an in-service injury, such as the Veteran's claimed in-service herbicide-agent exposure. As noted herein above, the Board has found that there is no credible evidence that the Veteran was exposed to herbicide agents during his time in service. Therefore, Hickson element (2) is not met. Therefore, because Hickson element (2) is not met, Hickson element (3), evidence of a nexus between a current disability and service, cannot be satisfied either. An August 2013 VA treatment record reflects that a physician assistant noted that it is known that Agent Orange and Agent Blue were both used in Korea and that both herbicide agents have been shown to cause prostate cancer. The physician assistant concluded that if the Veteran's exposure to these herbicide agents is confirmed, it is more likely than not that his prostate cancer is related to exposure to Agent Orange and Agent Blue. In the August 2014 statement, the private doctor opined that it is more likely than not that the prostate cancer was caused by in-service exposure to Agent Orange and Agent Blue. This evidence relating prostate cancer to service is predicted on in-service exposure to herbicide agents. As the Board has found that there is no credible evidence that the Veteran was exposed to herbicide agents during his time in service, the Board gives no weight to this evidence relating prostate cancer to active service. There is no other competent medical evidence relating the current diagnosis of prostate cancer or erectile dysfunction to active service. Neither the Veteran nor his representative asserts that he has had prostate cancer or erectile dysfunction since service. Therefore, he is not claiming continuity of symptomatology. As to the Veteran's and his spouse's claim that his prostate cancer is related to active service, the Board notes that although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of cancer falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). Thus, service connection for prostate cancer and for erectile dysfunction on a direct basis is not warranted. With regard to secondary service connection, as determined above, the Veteran is not service connected for prostate cancer. Accordingly, Wallin element (2), a service-connected disability, is not met. Therefore service connection for erectile dysfunction as secondary to prostate cancer cannot be granted. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that his prostate cancer and erectile dysfunction are related to service, to include as secondary to herbicide agent exposure. Therefore, the preponderance of the evidence is against the claims, and they are denied. ORDER Entitlement to service connection for prostate cancer, to include as secondary to herbicide-agent exposure, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to herbicide-agent exposure and prostate cancer, is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs