Citation Nr: 20002264 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 06-12 769 DATE: January 10, 2020 ORDER Entitlement to service connection for residuals of prostate cancer, status post- radical retropubic prostatectomy, to include as due to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have had any service in the Republic of Vietnam (RVN) during his period of military service; the preponderance of the evidence of record is against a finding that the Naval vessel on which the Veteran served operated within the territorial waters of the RVN, nor is he otherwise shown to have had exposure to herbicide agents as a result of his military service. 2. The evidence of record does not demonstrate that the Veteran’s prostate cancer is caused by or otherwise related to his exposures to diesel fuel and a Class B fire during his period of military service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of prostate cancer status post-radical retropubic prostatectomy, to include as due to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), (6), 3.309(a), (e). REASONS AND BASES FOR FINDING AND CONCLUSION The Board initially denied service connection for prostate cancer in a November 2010 Board decision (11/05/2000 BVA Decision); the Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the parties agreed to jointly vacate and remand the case to the Board for further development in February 2013 (02/05/2013 Court Documents, 1st and 2nd Entries). The case was returned to the Board in November 2013 in compliance with the February 2013 Joint Motion for Remand (JMR) and Court Order; the Board remanded the case at that time for further development (11/07/2013 Remand BVA) and remanded the case again for additional development in June 2015 (06/24, 2015 Remand BVA). Following the return of the case to the Board by the Agency of Original Jurisdiction (AOJ), the Board again denied the appeal in a July 2018 decision (07/24/2018 BVA Decision. The Veteran appealed the July 2018 Board decision; and, the parties again entered into a JMR which the Court granted, vacated the July 2018 Board decision, and remanded the case to the Board for further appellate review consistent with the JMR and Order (06/05/2019 CAVC Decision). As an initial matter, as the Board noted in the July 2018 Decision, the Board reviewed its June 2015 remand directives and the subsequent development. As discussed in further detail later in this decision, the Board finds that the AOJ obtained the documents requested, as well as the medical opinions requested, as noted in the August 2016 VA examination and subsequent April 2017 VA addendum opinion. The Board finds further that its remand directives have been substantially complied with in this case. Consequently, the Board finds that it may proceed to adjudication of this case at this time. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). As concerns the June 2019 Court Remand, the Board finds that the JMR may be fully addressed by the evidence already of record, a determination that the Board, as factfinder, may make. Hence, the Board finds that a remand is not indicated. Entitlement to service connection for residuals of prostate cancer, status post- radical retropubic prostatectomy, to include as due to herbicide agents 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 (2012); 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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations also provide that service connection may be presumed for malignant tumors, including prostate cancer, that manifests to a compensable degree within one year of separation from active service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, VA regulations provide that for a veteran who has been exposed to an herbicide agent, such as that contained in Agent Orange, during military service, service connection for prostate cancer will be presumed. See 38 C.F.R. § 3.309(e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i) (2017). Furthermore, a veteran who, during active military, naval, or air service, served in RVN during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. The VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic, generally requires that an individual actually have been present within the boundaries of the country. Specifically, the General Counsel has concluded that in order to establish qualifying “service in Vietnam” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water vessel in waters off the shore of RVN may, under certain circumstances, constitute “service in the Republic of Vietnam” for the purposes of 38 U.S.C. § 101(29)(A) (establishing that the term “Vietnam era” means the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In this case, the Board notes that the Veteran’s initial diagnosis of prostate cancer was in April 2004 following a biopsy by VA. The Veteran had a radical retropubic prostatectomy of his prostate cancer in May 2004. Consequently, the Board finds that the Veteran has a current disability in this case, which meets the first element for entitlement to service connection. See 38 C.F.R. § 3.303. However, as the Veteran’s prostate cancer began many years after his military service, service connection under the chronic disease presumption is not warranted. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Next, on appeal, the Veteran has repeatedly and extensively contended that he was exposed to Agent Orange and other tactical herbicides as a result of his military service aboard the U.S.S. Independence (CVA-62) (Independence), a Forrestal class supercarrier. Initially, the Board notes that the Veteran submitted an April 2006 medical opinion from a VA doctor, Dr. W.A.W. (04/28/2006 Medical Treatment-Government Facility, 2nd Entry), in which it was noted that the Veteran’s prostate cancer was related to his herbicide exposure during military service. The Board notes that the basis of the JMR was that the Board needed to seek clarification of that opinion. The Board notes further that it obtained the noted clarifications, as discussed below in the August 2016 and April 2017 VA opinions, subsequent to the JMR. The Board points out, however, that the probative value of that opinion is that there is a link between prostate cancer and exposure to herbicides agents. The Board notes that the law, such as it is, already recognizes this link between the claimed disorder in this case and exposure to herbicides agents. Thus, there does not appear to be a need to clarify that opinion, as the entirety of the probative value of that opinion is already an accepted medical principle in this case. See 38 C.F.R. § 3.309(e). Thus, insofar as the Board was required by the JMR to obtain clarifications, such has been accomplished in this case, although the Board does not purport to understand the need for clarification, as the medical link between exposure to herbicides agents and prostate cancer already exists. Rather, the entire crux of this case is the question of whether the Veteran was exposed to herbicides agents during his period of military service. Such is a question of fact, and not a medical question in this case. Turning to that question, the Board reflects that the evidence of record does not demonstrate that the Veteran had any service on the landmass of RVN during his period of military service; nor has the Veteran or his representative ever alleged any such service at any time during the record. At his Board hearing, he in fact conceded that he spent his entire time aboard ship during the timeframe during which the USS Independence supported combat operations. See 07/14/2010 Hearing Testimony, P. 5. At the time of the July 2018 Board decision, the state of the law was that a veteran must have been physically present on the landmass or inland waters of RVN at some point during his service in order to establish qualifying service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied 129 S. Ct. 1002 (2009). In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), however, the Federal Circuit reversed Haas and held that service in Vietnam includes service on ships that operated within the territorial seas of Vietnam that extended 12 nautical miles from the shores of that nation. Congress implemented the Procopio holding in the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act). The Act added new section of the U.S. Code, 38 U.S.C. § 1116A, which says that VA must treat a location as being “offshore” of Vietnam (and therefore falling within the presumption of herbicide agent exposure) “if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia….” The consensus of the parties in the 2019 JMR was that the July 2018 Board decision should be vacated so that the Board could address whether the holding in Procopio and the Blue Water Act applies to the Veteran’s claim. See 06/05/2019 CAVC Decision. As noted earlier in this decision, the Board determined that a remand was not necessary to address the impact, if any, of the Procopio holding and the Blue Water Act. A January 2005 PIES Response to the AOJ notes that the USS Independence was in the official waters of the Republic of Vietnam for portions of time from August through November 1965 during the Veteran’s period of service aboard that vessel. See 02/18/2005 VA 21-3101. Nonetheless, the extensive deck logs of the vessel submitted by the Veteran and his representative show that it did not operate within 12 miles of the RVN or North Vietnam coastline. For example, the deck logs for August 1965 record that the Independence operated in the South China Sea at Yankee Station. See 03/01/2006 CAPRI, 9th Entry, P. 9. Yankee Station was initially located at 16° 00′ N, 110° 00′ E. After a massive increase in operations over North Vietnam in 1966, the station was moved about 145 miles (230 km) northwest to 17° 30′ N, 108° 30′ E, placing it about 90 miles (145 km) from the North Vietnamese shore. See Yankee Station, Wikipedia. The coordinates in the deck logs noted the position of the Independence as: 17° 14.8’ N, 108° 37.5’ E; 17° 14.5’ N, 108° 25.2’ E; and 67° 5.3’ N, 108° 44.5’ E. See 03/14/2005 Military Personnel Records (MPR); 03/30/2005 Logbooks. Those coordinates approximate Yankee Station. The points within Yankee Station from which the Independence and other carriers operated were 90 to 100 miles from the coast of Vietnam. See 03/29/2006 WEB/HTML Documents; Wikipedia, supra. The Veteran’s assertion that the Independence operated in proximity to Da Nang, see 03/01/2006 CAPRI, 7th Entry, is refuted by the log books of the vessel. His testimony at the hearing that the Independence operated within a mile of the coastline is not only refuted by the evidence set forth above, it also is simply impractical as well as incredible. Aircraft carriers simply did not operate that close to the coast. Hence, the Blue Water Act is of no benefit to the Veteran, since his ship, the Independence, did not operated within 12 miles of the coastline of Vietnam; so, the evidence of record is against presumed exposure to herbicides agents while in the Vietnam Theater. The Veteran, of course, still may prove by direct evidence that he was exposed to herbicides agents. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With respect to the April 2006 VA examiner’s opinion (04/28/2006 Government Facility), the VA examiner noted that the Veteran’s prostate cancer was “more likely than not related to his exposure to herbicides (Agent Orange) by his service in the Navy during the Vietnam War.” However, other than stating that the Veteran was exposed to herbicides during his military service, the examiner does not provide a basis for the conclusion that the Veteran was exposed to herbicides during his service, but rather he merely takes as conclusive fact that he was. The April 2006 VA examiner provided no rationale for that conclusion based on any of the evidence of record regarding the Veteran’s service aboard the Independence in this case. Moreover, the Veteran and his representative have not indicated what competency that particular doctor would have in providing any evidence with respect to whether the Veteran was exposed to herbicides in this case, as it does not appear that the doctor ever served with the Veteran aboard the Independence in this case. Again, as noted above, the examiner did not provide any support for the conclusion that the Veteran would have been exposed to herbicides in this case. Thus, as to the question of whether the Veteran was exposed to herbicides during military service, the April 2006 VA examiner’s opinion has no probative value. Turning to the other evidence of record in this case, the Veteran has asserted several avenues for exposure to herbicides, including that such was in the water, that such herbicides blew out to sea, and/or that his food was contaminated by herbicides. However, aside from allegations of such, the Veteran has not proffered any evidence of record to demonstrate that any water he drank, air he breathed, or food he ate during service contained or was otherwise “contaminated” with tactical herbicide agents. The Veteran and his representative’s statements as to such are purely speculative statements that are unsupported by the evidence of record. Furthermore, insofar as the Veteran and his representative have submitted treatise evidence that indicated that the water in Da Nang and Subic Bay was found to have herbicide contamination many years after his period of service, the Board notes that there is no evidence that the Veteran ever was in Da Nang or Subic Bay or that he ever came in contact with any of the water in Da Nang that purportedly contained herbicides. In fact, as discussed earlier, the evidence shows that the Independence did not operate in that area. Hence, the treatise evidence does not demonstrate that the Veteran—specifically during his period of service—was ever exposed to tactical herbicide agents while aboard the Independence. The Board further acknowledges the wealth of treatise evidence, studies, and internet articles submitted by the Veteran regarding widespread herbicide use in RVN. The Board, again, notes that this evidence is known fact, and is conceded by VA as noted by the presumption of exposure with “boots on the ground” in RVN and other locales discussed earlier. See 38 C.F.R. § 3.307(a)(6)(ii); VAOPGCPREC 27-97; Blue Water Act, supra. Such evidence, however, is not relevant, pertinent, or probative to the Veteran’s case, as he did not have any service ashore in RVN of within 12 miles of the coastline. Finally, the Veteran and his representative have submitted extensive evidence with regards to the presumption related to the C-123 aircraft that participated in Operation RANCHHAND. The Board, again, acknowledges that such a presumption exists, although it is again not relevant to the Veteran’s case. The Board notes that the Veteran has never asserted nor has he submitted any evidence that he came in contact with or otherwise worked or maintained the C-123 aircraft involved in Operation RANCHHAND, either during his service or any subsequent reserve service he may have that after his discharge from active duty, which would allow him to take advantage of this presumption. Instead, the evidence of record is clear that the aircraft that the Veteran maintained during his time on the Independence was the F-4 Phantom II fighter aircraft. The Board notes that the F-4 Phantom II fighter aircraft are decidedly not the C-123 aircraft that participated in Operation RANCHHAND and which are the subject of the presumption. Insofar as the Veteran has asserted that the F-4 Phantom II aircraft operated extensively in the airspace of the RVN—as noted in the June 2018 informal hearing presentation (06/14/2018 Third Party Correspondence), the F-4’s logged several combat hours over RVN—and has provided evidence that such aircraft diverted to in-country bases, including Da Nang, during the Independence’s combat operations in official Vietnam waters. See 07/13/2010 MPR. The Board significantly notes that, again, the Veteran does not assert that at any time he was aboard any of those aircraft during any of those combat operations and/or diversions such that he, personally, would have had any contact with the either the airspace or landmass of RVN. Rather, the Veteran has asserted that he came in contact with the muddy landing gear of those aircraft while maintaining the aircraft when they returned to the Independence, as well as mud in the cockpit. To this end, the Veteran and his representative in this case have specifically argued a second-hand theory of exposure; in other words, the Veteran and his representative have asserted that the aircraft—because it had contact with the airspace and landmass of Vietnam—was exposed to herbicide agents and therefore the Veteran’s contact with the aircraft post-exposure would have exposed him to herbicide agents. First, the Board notes that although there is a presumption of exposure for persons who had contact with the landmass of RVN, there is no presumption that aircraft or any other inanimate objects that were, at any time, present on the landmass or inland waterways of RVN, are presumed to be exposed to herbicides. See 38 C.F.R. § 3.307(a)(6)(iii) (limiting the presumption of exposure to “a veteran” with requisite service during a specified time period). Consequently, there is no “presumption” in the law that allows the Board to merely assume that because aircraft were present in RVN that it was therefore exposed to tactical herbicide agents. Nevertheless, in compliance with the JMR, the Board obtained a VA medical opinion related to such exposure, as well as his alleged exposures to diesel fuel and a Class B fire that occurred aboard the Independence in December 1965. The Veteran underwent a VA examination in August 2016, at which time he was noted to have residuals of prostate cancer. Regarding the Veteran’s assertions related to diesel fuel and Class B fire exposures during service, the examiner opined that his prostate cancer was less likely than not related to those exposures. Specifically, the August 2016 examiner opined as follows: In a Public Health Statement released by the ATSDR (Agency for Toxic Substances and Disease Registry—an agency of the Centers for Disease Control and Prevention (CDC)) prepared to evaluate fuel oils and to emphasize the human health effects that may result from them. It first defines fuel oils as petroleum products that are used in many types of engines, lamps, heaters, furnaces, stoves and as solvents. Fuel oils come from crude petroleum and are refined to meet specifications for each use. The fuel oils of interest and common synonyms are: fuel oil No. 1 (the most widely used fuel oil) includes kerosene and JP-5[;] fuel oil No. 1-D includes diesel fuel [; and,] fuel oil No. 2-D includes diesel fuel no. 2. In a case-control study, there was no association between renal cell cancer and occupational exposure to fuel oils, including diesel fuel. In another study, increased risk of laryngeal cancer was associated with self-reported exposure to diesel oil. However, the data were equivocal. Similarly, exposure to “petroleum products,” including diesel fuel, has been associated with acute leukemia, but the study was very limited in that the type of product exposed to was not described, and included a wide range of product types. In a study conducted on rats, no renal tumors were observed during life-time observation following a 90-day continuous exposure to JP-5 vapor or to marine diesel fuel vapor. There are limited epidemiological data regarding carcingenicity in humans following chronic inhalation exposure to kerosene. In one case-control study, there was no association between the use of kerosene stoves for cooking and bronchial cancer in non-smoking women. However, there may be additional or alternative effects resulting from exposure to the combustion products of kerosene, which may be toxicology different from the kerosene itself. Another study associated the use of kerosene stoves and exposure to “petroleum products” with oral and pharyngeal cancer. The first study is limited because it does not quantify the levels of exposure and cannot accurately determine the duration of exposure to fuel oils. The second study suffers the same limitations of the first with the addition that use of kerosene stoves involves exposure to both kerosene vapor and combustion products. The fire that occurred on the Independence on December 12, 1965 is described as when an aircraft dropped its center fuel tank on the deck which then exploded. The [V]eteran introduced this evidence it seems in support of his PTSD claim. There was a fireball and the [V]eteran witnessed men being burned. There was no evidence that the [V]eteran helped fight the fire or was treated for smoke inhalation, etc. In addition, there is no mention of prostate cancer in any of these studies. When a chemical is released from a container, such as a drum or bottle, it enters the environment as a chemical emission. This emission, which is also called a release, does not always lead to exposure. You can be exposed to a chemical only when you come in contact with the chemical. I will not opine on the [V]eteran’s allegations of other exposures only to state he offers no credible evidence of exposure. He submits pictures of aircraft with muddy landing gear which he surmises contains dioxin. There is also a study on drinking water which speculates there may have been dioxin in the water. There is study of chloromethane effects but again no evidence that he was personally exposed to it. He submits a report on the Subic Bay site. This report dated June 30,1998, was mostly about the shortcomings of the EQS report on the site and speculation of what other contaminants are there. He did produce a photograph of him fueling an aircraft but it is assumed he had exposure to diesel fumes as part of his job as an aircraft mechanic. Therefore, based on all the available evidence, in my opinion it is less likely than not, (less than 50 percent probability) that the [V]eteran’s prostate cancer was caused by [his] exposure to diesel fuel and/or the Class B fire that occurred aboard the U.S.S. Independence on December 12, 1965. See 08/17/2016 C&P Examination, 2nd Entry, P. 1-2. In an April 2017 addendum, the August 2016 examiner noted that he had reviewed the claims file, including the extensive amount of evidence submitted by the Veteran and his representative related to herbicides, C-123 aircraft, etc. In particular, the August 2016 examiner noted the IOM report related to the C-123 aircraft, which were used to spray Agent Orange. He continued as follows: It is felt that these aircraft were so heavily contaminated with Agent Orange and other herbicides that the Air Force Reserve units they were assigned to after the war continued to expose their crews to significant levels of Agent Orange. Operation Ranch Hand operated out of various air bases in Vietnam between 1961 and 1971. During the time the U.S.S. Independence was stationed off of Vietnam (1965), missions were flown out of Tan Sun Nhut Air Base (1962-1966) and Da Nang Air Base (1964-1971). There is no evidence that these aircraft operated from aircraft carriers. In a document titled the aviation history of the U.S.S. Independence dated May 10, 1965 through December 13,1965, it is recorded that there were 91 diverts to Da Nang. It is further broken down into: 1) 23 F4B diverts with hung ordinance; 2) 34 total diverts with hung ordinance; 3) 29 diverts with low fuel; and, 4) 28 diverts for other reasons. In the last two categories it does not specify how many of these were F4Bs or the reason for their diversion. According to the [V]eteran’s military record, it appears that he was a member of VF-41 his entire time on active duty. VF-41 was a Navy fighter squadron initially formed in 1950. In 1962 it was transitioned from F3H-2 Demons to the F4B Phantom II. It appears that the principal, if not the only, aircraft the [V]eteran was exposed to was the F4B. In my opinion these diversions to Da Nang lasted a matter of hours, e.g. to remove ordinance or to refuel. In contrast, the C-123 aircraft were exposed to high levels of Agent Orange for months if not years. In my opinion it is less likely than not (less than 50% probability) that the level of contamination of the fighter aircraft the [V]eteran was exposed to was comparable to the level of contamination of the C-123 aircraft discussed in the IOM report. See 04/09/2017 C&P Examination, 2nd Entry. Insofar as the JMR instructed the Board to obtain these clarifications from a VA medical examiner and to consider them, the Board did so in this case and concludes that this evidence is the most probative evidence of record with regards to such exposures. The Board initially acknowledges the Veteran’s representative’s arguments in the June 2018 informal hearing presentation that the examiner’s rationale regarding length of exposure was flawed. However, as noted above, any such discussion regarding presumptive exposure of aircraft or inanimate objects that would have been present in RVN is not grounded in the law and is completely misplaced. Moreover, the Board reiterates that the policy rationale for providing such a presumption to the C-123 aircraft that participated in Operation RANCHHAND and to no other aircraft or other inanimate objects that were ever present in RVN, is that the evidence is clear that those aircraft—which actively sprayed the tactical herbicide agents over RVN—were actually shown to have extensive contact with the tactical herbicide agents during their use in RVN. In contrast, the Board notes that there is no such evidence of actual exposure in the record related to the F-4 Phantom II aircraft the Veteran maintained during his period of service. Thus, insofar as the Veteran’s representative has attempted to provide evidence related to number of flight hours in Vietnam airspace—which the Board notes would have been at a higher altitude than the C-123 aircraft operated at anyways—or the number of hours on the ground at airbases in RVN, such evidence does not corroborate that any of the aircraft that the Veteran worked on or maintained during military service was actually exposed at all to any tactical herbicide agents during the use in or above RVN, or that any such tactical herbicide agents were on the aircraft when the Veteran worked on the aircraft. (Emphasis added). Thus, insofar as the Veteran’s representative has argued that the length of the C-123 aircraft’s exposure versus the length of exposure of the F-4’s in this case are in fact not relevant, the Board notes that what is relevant is the fact that the C-123 aircraft were actually shown to have been exposed to tactical herbicide agents—by virtue of those aircraft having actively sprayed the tactical herbicide agents—whereas the Veteran and his representative have failed to so proffer any evidence of exposure respecting the F-4’s at issue in this case, aside from pure speculation that there was some sort of exposure by virtue of being present in Vietnam airspace or on the ground for a few hours, or even days, in RVN. In short, the entire argument advanced by the Veteran and his representative in this case is an inaccurate reading of the law and is entirely misplaced. Barring any application of the presumptions incumbent in this case, the burden of proof of actualized exposure to tactical herbicide agents falls to the Veteran; in other words, what the Veteran and his representative must prove in this case is that the Veteran—or possibly alternatively, that the F-4 Phantom II aircraft that he worked on during service—was actually exposed to tactical herbicide agents as a result of his military service. The Veteran and his representative—aside from their assertions that such is true—have not proffered any evidence to demonstrate that any aircraft, mud, or any other object that had been present in RVN and to which the Veteran came in contact with during military service had actually been exposed to tactical herbicide agents such that any such contact would have actually exposed the Veteran to tactical herbicide agents. In summary, the Veteran and his representative have failed to demonstrate any such actualized exposure in this case. As the Veteran and his representative have not met their burden in this case, the Board must find that the Veteran is not presumed to be, nor has he shown that he was, in fact, exposed to any tactical herbicide agents during his period of service, to include as a fire control technician aboard the Independence. Accordingly, service connection is not warranted in this case based on the presumption due to exposure to herbicides. See 38 C.F.R. §§ 3.307, 3.309(e). Finally, turning to direct service connection, after review of the Veteran’s service treatment records, the Board notes that there is no evidence of any symptoms, complaints, or diagnosis of the Veteran’s prostate cancer during his military service. Rather, the post-service medical evidence demonstrates that the Veteran’s prostate cancer manifested many years after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Nevertheless, the Veteran has asserted that his prostate cancer is the result of exposure to diesel fuel as a result of his military occupational specialty (MOS) as a fire control technician, and that during his period of service aboard the Independence he was exposed to a Class B fire on December 12, 1965. The evidence of record does support that a Class B fire occurred during the Veteran’s period of service, and given his MOS during service, the Board finds that he was likely exposed to diesel fuel during service. The Board therefore finds that those two exposures occurred during service and the second element of service connection has also been met, an in-service event. Insofar as the Veteran and his representative have stated that such exposures caused or otherwise resulted in the Veteran’s development of prostate cancer, the Board notes that they are not competent to render any such medical opinions in this case, as they lack the requisite medical expertise to so. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Consequently, the Board finds that service connection is not warranted, as the sole competent evidence regarding whether the diesel fuel exposure and/or exposure to the Class B fire caused his prostate cancer is the August 2016 VA examiner’s opinions noted above. Such evidence is highly competent and probative, and it is not refuted by any evidence of record in this case. Accordingly, the Board must also deny service connection on a direct basis in this case. See 38 C.F.R. § 3.303. Finally, the Board acknowledges the Veteran’s representative’s arguments in the June 2018 informal hearing presentation that reliance on the August 2016 examiner’s opinion is not proper as the Board requested an oncologist and the August 2016 examiner is not an oncologist. First, the Board notes that it in fact requested “an oncologist or other appropriate specialist” in the June 2015 remand directives. Hence, the Board finds the Veteran’s representative’s arguments to be factually inaccurate. Secondly, the Board finds significant that, other than noting that he is not an oncologist, the Veteran’s representative has not otherwise made any argument regarding the August 2016 examiner’s credentials. To this end, the Board notes that the Veteran’s representative has not submitted any evidence or argument that an oncologist would necessarily have more experience or expertise than a physiatrist. Furthermore, the Board notes that the Veteran’s representative has failed to otherwise indicate why either of those medical professionals would be any more qualified to render an opinion, the entire crux of this case, which is the factual question as to whether the Veteran was actually exposed to herbicide agents during his period of service. Instead, the Board reflects that the AOJ’s selection of an appropriate examiner is due the presumption of regularity. “There is a presumption of regularity under which it is presumed that government officials ‘have properly discharged their official duties.’ United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926);” Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (Ashley II). However, “[t]he presumption of regularity is not absolute; it may be rebutted by the submission of ‘clear evidence to the contrary.’” Ashley II, 2 Vet. App. at 309 (citing Rosler v. Derwinski, 1 Vet. App. 241, 242 (1991)); see also YT v. Brown, 9 Vet. App. 195, 199 (1996). Significantly, as the AOJ regularly and routinely select qualified examiners, the presumption of regularity applies in this case. The Veteran and his representative have not rebutted that presumption in this case, and absent any argument with respect to why the August 2016 examiner is not competent to render an opinion in this matter merely because he is not an oncologist, the Board finds the August 2016 examiner to be competent to render a medical opinion in this case, and that his selection substantially complies with the Board’s previous remand directives. See Stegall, supra. In conclusion, the Veteran’s prostate cancer was not shown to have manifested during service or within one year of discharge therefrom. Nor has the Veteran and his representative shown that he was present on the landmass, in the inland waterways of RVN, or within 12 miles of the coastline such that the presumption of exposure to herbicides attaches in this case. Finally, the Veteran and his representative have not otherwise demonstrated that he was actually exposed to tactical herbicide agents during his period of service, and as the evidence of record weighs against finding the Veteran’s prostate cancer was due to or the result of his exposures to diesel fuel and/or a Class B fire during service, the Board must deny the Veteran’s service connection claim in this case. See 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), (6), 3.309(a), (e). In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M.W. KREINDLER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.