Citation Nr: 20046626 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-41 130 DATE: July 13, 2020 ORDER Entitlement to service connection for prostate cancer, claimed as secondary to in-service herbicide exposure, is denied. Entitlement to service connection for diabetes mellitus, type II, claimed as hypoglycemia secondary to in-service herbicide exposure, is denied. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran’s prostate cancer began during active service or is otherwise related to an in-service injury, event, or disease. 2. The evidence of record is against finding that the Veteran’s diabetes mellitus began during active service or is otherwise related to an in-service injury, event, or disease. 3. The evidence of record is against finding that the Veteran has had a current disability of residuals of a TBI at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer, claimed as secondary to in-service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus, type II, claimed as hypoglycemia secondary to in-service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1965 to September 1967. This case is on appeal before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In November 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran seeks entitlement to service connection for prostate cancer, diabetes mellitus, and residuals of a TBI. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Moreover, for certain chronic diseases, which include diabetes mellitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). I. Herbicide Exposure The Veteran seeks entitlement to service connection for prostate cancer and diabetes mellitus, type II. He traces these conditions to in-service herbicide exposure, alleging that he handled tanks of Agent Orange during an assigment at Fort Jackson, South Carolina. See November 2019 Board hearing. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962 and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Department of Defense has also confirmed that certain herbicide agents were used in Thailand during the Vietnam Era. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. VBA Manual M21-1, IV.ii.1.H.5.b. Furthermore, a veteran 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. The Department of Defense has recognized that Agent Orange was used from April 1968 through July 1969 along the Korean DMZ to defoliate the fields of fire between the frontline defensive positions and the south barrier fence. VA Adjudication Procedure Manual, MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. Under the development instructions, if it is determined that a veteran who served in Korea during the time period belonged to one of the units identified by Department of Defense, then it was presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) would apply. Id. If a veteran served in a different unit located in Korea during this time period, the unit’s location must be verified. Here, prostate cancer and diabetes mellitus, type II, are both conditions listed in 38 C.F.R. § 3.309(e) as being entitled to presumptive service connection related to in-service herbicide exposure. Despite this, the Board reiterates that the Veteran does not allege, nor do his service personnel records establish, qualifying service in the Vietnam, Thailand, or Korea. However, the presumption of service connection for the conditions identified in 38 C.F.R. § 3.309(e) arises not only for those veterans with qualifying service, but also for a veteran without appropriate service but with competent evidence of in-service herbicide exposure, who develops one of the enumerated diseases and satisfies the rebuttable presumption provisions of 38 C.F.R. § 3.307(d). Although the Veteran claims to have handled tanks filled with Agent Orange during an assignment at Fort Jackson, he has provided no additional evidence to substantiate these assertions. The Board points out that there is no documentation from the Department of Defense acknowledging that certain herbicide agents, to include Agent Orange, were used, stored, transported, or disposed of in the vicinity of Fort Jackson. Moreover, the Veteran’s testimony stating that, “I was handling Agent Orange, I guess,” does not suggest that he himself was sure of the contents of the tanks. Therefore, due to the lack of credible or competent evidence to show that the Veteran was exposed to certain herbicide agents during his period of active duty, the Board concludes that none of the presumptive provisions recited above are applicable to the present case. Nonetheless, the failure to meet the criteria for a presumptive provision does not preclude the Veteran from establishing entitlement to service connection on a different basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). As such, the Veteran could still prevail by showing the existence of prostate cancer or diabetes mellitus, type II, otherwise related to service. II. Prostate Cancer The Veteran seeks entitlement to service connection for prostate cancer. He alleges that this condition manifested during his period of active duty, claiming to have experienced frequent urination. See November 2019 Board hearing. The Veteran’s service treatment records are absent for any indication of prostate complaints or a diagnosis of prostate cancer. He also denied frequent urination during a physical evaluation in June 1967, as well as during his August 1967 separation examination. The first references to prostate cancer do not appear until decades after the Veteran’s discharge from active duty. A private treatment record from October 2005 reveals that he was then diagnosed with prostate cancer; in January 2006, the Veteran underwent a radical prostatectomy. Letters from two of the Veteran’s private treating physicians in December 2014 and June 2015 indicate that he is still receiving medical care for complications related to prostate cancer. However, neither of these doctors expressed the opinion that the Veteran’s prostate cancer was related to events in service. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s prostate cancer began during active service or is otherwise related to events in service. The Board reiterates that the Veteran’s service treatment records do not reflect a diagnosis of prostate cancer or reports of frequent urination during his period of active duty. Additionally, no medical professional has issued an opinion linking the Veteran’s current disability to events in service. Rather, the evidence suggesting a connection between the Veteran’s prostate cancer and his military service consists solely of lay statements from the Veteran himself. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to offer an opinion concerning the etiology of complex medical issues. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Therefore, the Veteran is not competent to diagnose himself with prostate cancer or state that it is related to service. The Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Given the absence of competent medical opinion evidence to link his current impairment to active service, the Board finds that the Veteran has not substantiated his claim for entitlement to service connection for prostate cancer. Hickson, 12 Vet. App. at 253. Moreover, because there is no indication that the Veteran’s current prostate cancer could be related to an in-service injury, event, or disease, the Board determines that a VA examination or opinion is not warranted for this issue. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). For the reasons set forth above, the Board concludes that the evidence of record does not show that the Veteran’s prostate cancer began during active service or is otherwise related to an in-service injury, event, or disease. Although the Board acknowledges the Veteran’s statements to the contrary, there is no competent or credible evidence currently associated with the claims file to corroborate his assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Veteran’s claim for service connection for prostate cancer is denied. III. Diabetes Mellitus The Veteran seeks entitlement to service connection for diabetes mellitus, type II. He alleges that this condition manifested during his period of active duty, claiming to have experienced hypoglycemia. The Veteran asserts that he was diagnosed with diabetes mellitus in 1967, but states that he did not start regularly seeing a doctor to manage this condition until 1978. See November 2019 Board hearing. The Veteran’s service treatment records are completely absent for reports of hypoglycemia or diagnoses of diabetes mellitus. Indeed, no evidence of diabetes mellitus was documented in his August 1967 separation examination report. Although the Veteran claims to have been diagnosed with diabetes mellitus in 1967, the first references to this condition do not appear until nearly four decades after his separation from active duty. Recent medical records from VA and private sources confirm that the Veteran has a current diagnosis of diabetes mellitus, type II. However, none of his treating physicians have indicated that this condition manifested during service or soon after separation, nor opined that it is related to events in service. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s diabetes mellitus began during active service or is otherwise related to events in service. The Board first notes that the evidence of record contains no indication of a diagnosed disability of diabetes mellitus during service or within one year of the Veteran’s separation from active duty. While he claims to have been diagnosed with diabetes mellitus in 1967, the first documented evidence of this condition dates from approximately 40 years after discharge. The Board also emphasizes that, for reasons discussed in greater detail below, the Veteran is not competent to diagnose himself with diabetes mellitus. As such, there is no presumption of service connection in this instance. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, the Board has considered service connection on an alternative basis under the theory of continuity of symptomatology. 38 C.F.R. § 3.303(b). Despite his testimony to the contrary, the fact that the first mention of diabetes mellitus does not appear until decades after discharge weighs against finding that the Veteran has experienced symptoms associated with this condition since service. Accordingly, the Board determines that service-connection on this basis is likewise unwarranted. The Board reiterates that the Veteran’s service treatment records do not mention hypoglycemia or diabetes mellitus during his period of active duty. Additionally, no medical professional has issued an opinion linking the Veteran’s current disability to events in service. Rather, the evidence suggesting a connection between the Veteran’s diabetes mellitus and his military service consists solely of lay statements from the Veteran himself. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to offer an opinion concerning the etiology of complex medical issues. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Therefore, the Veteran is not competent to diagnose himself with diabetes mellitus or opine that his current condition is related to events in service. The Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan, 573 F.3d at 1287-88. Given the absence of competent medical opinion evidence to link his current impairment to active service, the Board finds that the Veteran has not substantiated his claim for entitlement to service connection for diabetes mellitus, type II. Hickson, 12 Vet. App. at 253. Moreover, because there is no indication that the Veteran’s current diabetes mellitus could be related to an in-service injury, event, or disease, the Board determines that a VA examination or opinion is not warranted for this issue. McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1278-79. For the reasons set forth above, the Board concludes that the evidence of record does not show that the Veteran’s diabetes mellitus began during active service or is otherwise related to an in-service injury, event, or disease. Although the Board acknowledges the Veteran’s statements to the contrary, there is no competent or credible evidence currently associated with the claims file to corroborate his assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Veteran’s claim for service connection for diabetes mellitus, type II, is denied. IV. Residuals of Traumatic Brain Injury The Veteran seeks entitlement to service connection for residuals of a traumatic brain injury, which he traces to an in-service motor vehicle accident. See November 2019 Board hearing. The Veteran’s service treatment records confirm that he was involved in a motor vehicle accident in April 1967. However, the associated progress note states that there was “no significant abnormality” resulting from this incident. The Veteran’s August 1967 separation examination is likewise absent for reports of cognitive or neurological anomalies in the aftermath of the car crash. In March 1968, about six months after his separation from active service, the Veteran was knocked unconscious by a piece of falling glass. He was taken to a hospital, where he remained for nine days. During a private neurological evaluation in April 1968, he reported headaches, which he described as a “knife-like” sensation on both sides of his head. The Veteran also complained of dizziness, anxiety, and mood swings. There are no further references to a head injury until more than three decades after the Veteran’s discharge from the military. A private treatment record from September 2000 indicates that the Veteran was then diagnosed with a brain abscess and drainage. However, the attending physician did not opine, nor does the Veteran allege, that this condition is related to his in-service motor vehicle accident from April 1967. A VA examination report from March 2015 reflects review of the claims file and an in-person evaluation. Although it was noted that the Veteran had been injured by falling glass and later diagnosed with a brain abscess after separation, the examination report indicates that he had never been diagnosed with a TBI. Despite his claims of being involved in an in-service motor vehicle accident, the Veteran could not remember if he had sustained a head injury. His judgement was normal, his social interaction was routinely appropriate, and he was properly oriented to person, time, place, and situation. Additionally, the Veteran’s motor activity, visual spatial orientation, communication, and consciousness were normal. There was also no evidence of subjective symptoms or neurobehavioral effects. Based on these findings, the VA examiner concluded that there was no objective evidence of residuals of a TBI. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a current disability of residuals of a TBI. The Board notes that the opinion provided by the March 2015 VA examiner is the only statement from a medical professional to address the nature and etiology of the Veteran’s claimed TBI. The VA examiner had the opportunity to review the claims file, to include the Veteran’s service treatment records. While this evidence establishes that the Veteran was involved in a car accident in April 1967, there was no associated diagnosis of a TBI. Furthermore, despite his documented head injury in March 1968 and his September 2000 diagnosis of a brain abscess, an in-person evaluation of the Veteran failed to reveal any observable cognitive or neurological abnormalities. Based on this evidence, the VA examiner determined that the Veteran did not experience a TBI due to his in-service motor vehicle accident and therefore did not suffer residual effects stemming from this incident. Given the absence of competent medical opinion evidence to contradict these assessments, the Board assigns the greatest probative weight to the opinion of the March 2015 VA examiner; it thus adopts the conclusion that the Veteran does not have a current disability of residuals of a TBI. Lastly, the Board recognizes the statements of the Veteran, which allege the existence of an in-service TBI and current residuals. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to offer an opinion concerning the etiology of a complex medical condition. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Here, while the Veteran is competent to report injuries following a car crash, he is not competent to diagnose himself with a TBI or opine that his current complaints are linked to a particular in-service incident. Therefore, for the reasons discussed above, the Board finds that the opinion provided by the VA examiner in March 2015 is more probative than the Veteran’s unsupported lay assertions. The VA examiner has expertise, education, and training the Veteran is not shown to have. As such, that opinion is entitled to greater evidentiary weight. For the reasons set forth above, the Board concludes that the evidence of record does not show that the Veteran has a current disability of residuals of a TBI. Although the Board acknowledges the Veteran’s statements to the contrary, there is no competent or credible evidence currently associated with the claims file to corroborate his assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Veteran’s claim for entitlement to service connection for residuals of a TBI is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals MJS, Attorney for the Board Department of Veterans Affairs 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.