Citation Nr: 18141913 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-30 028 DATE: October 11, 2018 ORDER Service connection for prostate cancer, claimed as due to herbicide agents exposure, is denied. FINDINGS OF FACT 1. It is not shown that the Veteran served in-country in the Republic of Vietnam or was exposed to an herbicide agent, to include Agent Orange, during service. 2. The Veteran’s prostate cancer did not manifest in service or within the first post-service year, and is not shown to be otherwise related to service. CONCLUSION OF LAW The criteria for establishing service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1969 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran’s claim for service connection for prostate cancer. Under 38 C.F.R. § 3.156(c), if, at any time after VA issues a decision on a claim, relevant official service department records are received that existed but were not associated with the claims file when the claim was first decided, VA will reconsider the claim. Here, the Veteran’s military personnel records (MPRs) were received by VA after the initial denial of service connection for prostate cancer in September 2012. See MPRs, March 2016. Accordingly, the Board will not address whether to reopen the Veteran’s claim but instead will consider the claim de novo. 1. Entitlement to service connection for prostate cancer. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence 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, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Merits The Veteran seeks service connection for prostate cancer. His service treatment records are silent for any complaints, findings, treatment, or diagnosis of prostate cancer. His post-service treatment records also show that his prostate cancer was diagnosed in July 2000 after a radical prostatectomy, at least 30 years after his separation from service. See June 2016, Private Treatment records. Based on the foregoing information, there is no evidence that the Veteran’s prostate cancer manifested in service or to a compensable degree in the first year following his separation from active duty service. Consequently, service connection for prostate cancer on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from prostate cancer continuously since service. See 38 C.F.R. § 3.303(b). Instead, the Veteran contends he was exposed to herbicide agents (Agent Orange) while in service, and that his prostate cancer is the result of that exposure. With respect to the Veteran’s claimed in-service herbicide agents exposure, he does not assert any direct exposure, but rather claims that his disability was caused by latent residual herbicide agents exposure which occurred while sleeping and crawling on the ground during training at Fort Gordon, Georgia. Prostate cancer is on the list of diseases for which presumptive service connection can be awarded if the evidence indicates exposure to an applicable herbicide agent. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Therefore, the question for the Board to resolve is whether the Veteran was exposed to any herbicide agents, to include Agent Orange, in service. There is no presumption of herbicide exposure that applies in the Veteran’s case. The evidence does not show nor does the Veteran assert that he had service in Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. A review of the Department of Defense’s (DoD) listing of herbicide use and test sites in the U.S. reflects that herbicide agents, including Agent Orange and Agent Blue, were tested at Fort Gordon from July 15, 1967 and July 17, 1967. See US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides. While the DoD confirms the use of herbicide agents at Fort Gordon in July 1967, the Veteran’s DD-214 shows that he did not enter active duty until August 1969 and would not have been directly exposed. In an effort to corroborate the Veteran’s herbicide agents exposure, VA submitted a request for information to the U.S. Army and Joint Service Records Research Center (JSRRC). However, the claim did not have enough evidence to verify herbicide agents exposure. There is no evidence of record that any general Agent Orange contamination occurred on the base, nor is there any acknowledgement of exposure by virtue of being on the base or training there. Accordingly, the presumption of disease due to exposure to herbicide agents afforded under 3.309(e) cannot provide the basis for a grant of service connection. 38 C.F.R. §§ 3.307, 3.309. To the extent the Veteran asserted in his June 2016 VA Form 9, substantive appeal, that “Agent Orange may remain in the ground” or that “irrigation could cause contamination of surrounding areas used for training,” he has provided no support for these assertions, either in the form of medical or other scientific research. His statements are thus not competent evidence to establish that he could have been exposed to any herbicide agents at Fort Gordon when they were used over the course of three days, two years prior to his arrival at that location. As a lay person, he has not demonstrated that he has the training or experience to opine regarding the toxicity of herbicide agents and their latent effects; this is a complex scientific question and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran has submitted two letters, dated in October 2015 and June 2016, from his private physician, Dr. M.B., in which he states the Veteran’s aggressive prostate cancer has been determined to be from Agent Orange exposure. However, the evidence as discussed above fails to show that the Veteran was exposed to any herbicide agents in service; therefore, Dr. M.B.’s opinions appear to be based solely on the Veteran’s self-reported history which remains unsubstantiated. The United States Court of Appeals for Veterans Claims has held that the Board may reject a medical opinion/finding that is based on facts provided by the Veteran which have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran which formed the basis for the opinion. See Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). Accordingly, the conclusions by the Veteran’s private physician are afforded no probative weight. (CONTINUED ON NEXT PAGE) In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for prostate cancer. Accordingly, the benefit of the doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel