Citation Nr: 1802822 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 16-23 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for prostate cancer claimed as due to Agent Orange (AO) exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1954 to March 1973. This matter is before the Board of Veterans' Appeal (Board) on appeal of a May 2013 rating decision of the Cheyenne, Wyoming, Regional Office (RO) of the Department of Veterans Affairs (VA). 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). FINDING OF FACT Prostate cancer is not shown in service or within the initial post separation year; prostate cancer is not attributable to service including alleged AO and/or herbicide exposure. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Duty to Notify and Assist In the instant case, the Board finds that the VA satisfied its duty to notify under the VCAA by virtue of the Veteran's submission of his claim of service connection for prostate cancer through the fully developed claim program. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his claim, other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ, received September 27, 2012. The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection, and of the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings and effective dates. Id. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the duty to notify with regard to his service connection claim. The Board finds that additional development, such as a VA examination is not necessary. In determining whether VA's duty to assist requires a VA medical examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017). There is a low threshold for the third factor. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As further explained below, the evidence does not establish that the Veteran was exposed to herbicide agents while stationed at Korat Air Force Base (AFB) in Thailand or that his prostate cancer is associated with an established event, injury, or disease in service. Therefore, a VA examination to secure a nexus opinion as to prostate cancer is not necessary. II. Service Connection for Prostate Cancer Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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' - the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If the veteran was exposed to an herbicide agent (to include AO) during active service, prostate cancer shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Special consideration of herbicide exposure on a factual basis has been extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. In this regard, if a veteran served at a Royal Thai Air Force base in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang as an Air Force security policeman, security patrol dog handler, a member of a security police squadron, or otherwise near the air base perimeter as shown by the evidence of daily work activities, performance evaluation reports, or other credible evidence, herbicide exposure will be conceded on a direct/facts-found basis. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5 (M21-1); see also VA Public Health Thailand Guidance, http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. In making all determinations, the Board must fully consider the lay assertions of record. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends he is entitled to service connection for prostate cancer due to exposure to AO while stationed at Korat AFB in Thailand. According to the Veteran, he was exposed to AO as a result of his physical fitness training, which included running the perimeter of the base. The medical evidence of record shows that the Veteran was diagnosed with prostate cancer in 1995. The Veteran's medical records note that he is currently in remission. The Veteran's military personnel records confirm that he was stationed at Korat Air Force Base (AFB) from August 1971 to July 1972. The record reflects that the Veteran's military occupational specialty (MOS) was a pilot until 1964 when he was physically disqualified from flying due to medical reasons unrelated to this claim. The Veteran's MOS was reassigned to Auditor, which was his assigned MOS while stationed at Korat AFB. The Veteran's military personnel and service treatment records do not contain evidence that the Veteran served as an Air Force security policeman, security patrol dog handler, or a member of a security police squadron while stationed at Korat AFB. After careful review of all records, the Board finds they do not contain evidence of daily work activities, performance evaluation reports, or other credible evidence indicating that the Veteran's duties as an Auditor required him to be on or near the perimeter. Although the Veteran asserts that he was exposed to AO as a result of his physical fitness training, which included running the perimeter of the base, this statement is deemed inplausible when faced with the more likely reality that only security personnel are considered to have been sufficiently proximite to the perimeter. It is unlikely by any reasonable standard that physical training would be allowed to take place in an potentially unsafe area that needed to be guarded. The Board notes that the Veteran is competent to describe observable facts, such as his physical training at Korat AFB. However, the Board finds that the evidence of record, to include the Veteran's lay statements, is insufficient to establish AO exposure due to the Veteran being on or near the perimeter as part of his duties while stationed at Korat AFB. Thus, presumptive service connection is not warranted. When the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee, 34 F.3d 1039, 104. In this case, the Veteran's prostate cancer did not manifest during active service or within one year of separation. The service treatment records are silent as to any complaints, treatments, or diagnosis related to prostate cancer. Post-service treatment notes reveal that the Veteran was not diagnosed with prostate cancer until the 1990s, which is over a decade after his separation from active service. Therefore, the evidence does not establish an in-service occurrence and direct service connection is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a prostate cancer is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for prostate cancer is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs