Citation Nr: 20003341 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-23 075 DATE: January 14, 2020 ORDER Service connection for prostate cancer, to include as due to exposure to toxic herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran does not have confirmed service in a unit that operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicide agents are known to have been applied and, therefore, is not presumed to have been exposed to toxic herbicide agents. 2. The Veteran’s prostate cancer was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, including exposure to toxic herbicide agents. CONCLUSION OF LAW The criteria for service connection for prostate cancer, to include as due to exposure to toxic herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1970. The Board notes that the Veteran’s representative has requested that this appeal be remanded for the scheduling of a VA examination to consider whether the Veteran’s prostate cancer is related to his active duty service. However, as discussed below, given that he does not have confirmed service in a unit that operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied, the complete absence of in-service manifestations of, treatment for, or complaints regarding prostate cancer, and the lack of any treatment for prostate cancer until more than 39 years after his separation from service, the Board finds that a VA examination is not warranted. 38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, the Board finds that the available records and medical evidence are sufficient to make an adequate determination as to his claim seeking service connection for prostate cancer. 1. Entitlement to service connection for prostate cancer, to include as due to exposure to toxic herbicide agents The Veteran contends that service connection for prostate cancer is warranted on a presumptive basis because he was exposed to herbicide agents during his active duty service. Specifically, he asserts that he was exposed to herbicide agents during his active duty service when his duties as a cook stationed in Seoul, South Korea, required him to travel to the Korean DMZ. VA regulations state that certain diseases associated with exposure to toxic herbicide agents maybe presumed to have been incurred in service even if there is no evidence of the disease in service, provided that the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § § 3.309(e). Pursuant to 38 C.F.R. § 3.307(a)(6), a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicide agents used during that time, with “Agent Orange” being the most common. Exposure to toxic herbicides may also be recognized to veterans who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 C.F.R. § 3.307(a)(6)(iv). The units or other military entities that the DoD has identified as operating in or near the Korean DMZ during the qualifying time period are listed in a table in the VA Adjudication Procedure Manual, M21-1MR (M21-1), Part IV.ii.1.H.3.b (December 31, 2019). When a Veteran claims exposure in Korea, and his or her service was either not between April 1, 1968, and August 31, 1971, or not in a unit or entity listed in the table, VA is to send a request to the U.S. Army and Joint Service Records Research Center (JSRRC) for verification of exposure to herbicides. Id. Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). Initially, the Board finds that service connection for the Veteran’s prostate cancer is not warranted on a presumptive basis due to exposure to herbicide agents because the evidence does not establish that he served in a unit that operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied. Although he contends that he delivered food at the DMZ, the most probative evidence includes an August 2015 memorandum from the Joint Services Records Research Center (JSRRC) Coordinator and an October 2016 response from the Defense Personnel Records Information Retrieval System (DPRIS). The August 2015 memorandum from the JSRRC Coordinator reflects that a May 2015 letter was sent to the Veteran requesting additional information concerning herbicide exposure, that all available personnel records were obtained, and that based upon a review of all available information and his claims file, the evidence failed to corroborate his claimed herbicide exposure. Similarly, the October 2016 DPRIS response reflects that DPRIS coordinated its research with the National Archives and Records Administration, that research showed that his unit was located at Yongsan, South Korea, that the records did not document the use, storage, spraying, or transportation of herbicide agents in that area, and that the records do not document any specific duties performed by members of his unit along the Korean DMZ. Given the extensive research performed and thorough responses to the requests to verify his exposure to herbicide agents at the Korean DMZ, the Board finds that the August 2015 memorandum from the JSRRC Coordinator and the October 2016 DPRIS response are the most probative evidence and show that the Veteran is not entitled to the presumption of exposure to herbicide agents based upon being in a unit that operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied. Accordingly, presumptive service connection based upon exposure to herbicide agents is not warranted. Although the Veteran’s primary assertion regarding his prostate cancer has been addressed above, he is not precluded from establishing service connection for it with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, as discussed below, the Board concludes that although the Veteran has been diagnosed with prostate cancer, the preponderance of the evidence weighs against finding that it began during service or is otherwise etiologically related to service. 38 U.S.C. § 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d), 3.304, 3.310. Under the relevant laws and regulations, 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. 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). First, the Board finds that the Veteran’s service treatment records fail to establish that his prostate cancer was incurred in or is otherwise related to his active duty service. Specifically, his service treatment records do not reflect any signs of, symptoms of, treatment for, or a diagnosis of prostate cancer. The post-service evidence also does not indicate that the Veteran has experienced continuous symptoms related to prostate cancer. Indeed, the objective medical evidence does not demonstrate any diagnosis of, signs of, symptoms of, or treatment for prostate cancer until May 2010, more than 39 years after his separation from active duty service. In fact, he is not truly asserting that he has experienced continuous symptoms of prostate cancer given that he has primarily contended that service connection is warranted based upon exposure to herbicide agents. Accordingly, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and his prostate cancer. Indeed, there is no objective medical evidence linking the Veteran’s prostate cancer to his active duty service. Further, the Board notes that he has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his prostate cancer. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his prostate cancer to his active duty service, including his alleged exposure to herbicide agents. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his prostate cancer. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, prostate cancer is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that he believes that his prostate cancer is related to his active duty service, he is a lay person without the appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Crosnicker, Associate Counsel