Citation Nr: 20046893 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-16 904 DATE: July 14, 2020 ORDER Entitlement to service connection for prostate cancer, to include due to herbicide exposure is denied. Entitlement to service connection for diabetes mellitus, type II, to include due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) and, thus, he is not presumed to have been exposed to herbicides. 2. The evidence of record does not competently and credibly establish that the Veteran was otherwise exposed to herbicide agents while stationed in Okinawa, Japan. 3. Prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 4. Diabetes mellitus, type II, is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran’s discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to December 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. The Veteran testified at a travel board hearing in April 2017 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the record. In August 2018, the Board reopened, but denied, the Veteran’s claims service connection for prostate cancer and diabetes mellitus, type II, to include as due to herbicide exposure. The Veteran appealed the August 2018 Board decision for such issues to the United States Court of Appeals for Veterans Claims (Court). By an order dated October 2019, the Court granted a Memorandum Decision, vacating the August 2018 Board decision for such issues and remanding the case for compliance with the terms of the Memorandum Decision. Therefore, the case has been returned to the Board for appellate review. The Board notes that additional evidence has been received since the October 2019 Court Memorandum Decision. As his substantive appeal was received after February 2013, a waiver of AOJ consideration is not necessary. See section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. The Board notes that, in April 2020, the Veteran’s representative submitted a Freedom of Information Act (FOIA) request to the National Personnel Records Center and National Archives and Records Administration. However, it appears that efforts to obtain the records had been exhausted and that further attempts would be futile. Therefore, the Board may properly consider such evidence. Service Connection The Veteran contends that his diabetes and prostate cancer are related to his alleged herbicide exposure while serving in Okinawa, Japan, in the 1970s. As such, he claims that service connection is warranted. Service connection may be granted 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). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as diabetes mellitus, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, the law provides a presumption of service connection for certain diseases, to include prostate cancer and diabetes mellitus, type II, that are associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § § 1116; 38 C.F.R. §§ 3.307(a)(6). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107; 38 C.F.R. § § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for prostate cancer, to include due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, type II, to include due to herbicide exposure. At the April 2017 hearing, the Veteran reported that as an ammunition storage helper, he was required to clean, sand, and repaint crates of ammunition being returned from Vietnam that were exposed to Agent Orange. He maintains that his prostate cancer and diabetes mellitus are related to Agent Orange exposure. At the outset, the Board finds that the Veteran has a current diagnosis of diabetes mellitus and prostate cancer. Nonetheless, service connection is not warranted on a presumptive basis. That is, the Board finds that herbicide exposure is not conceded on a presumptive basis; thus, service connection is not warranted in this regard. The Veteran’s records reflect that he had overseas service in Okinawa, Japan. His records do not reflect, and the Veteran does not contend, that he served in the Republic of Vietnam or in one of the units designated by the Department of Defense as having served in or near the Korean DMZ. As such, he is not presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (a)(6). The Veteran contends that he was directly exposed to herbicides while he was stationed in Okinawa, Japan. Again, he maintains that he was required to clean, sand, and repaint crates of ammunition being returned from Vietnam and were exposed to Agent Orange. In this regard, the Board finds that the probative and persuasive evidence fails to show that the Veteran was exposed to Agent Orange during service. In January 2015, the AOJ sent a request to Compensation Service to verify whether the Veteran was exposed to herbicides or any other hazardous or toxic chemicals while serving in Okinawa. Regarding the Veteran’s specific contentions, Compensation Service indicated that DoD had not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported. As for the alleged exposure from equipment used in Vietnam, the report states there is no presumption or acknowledgment of exposure for such remote or secondary contact and no evidence of long-term health effect from any such contact. Therefore, Compensation Service concluded that they could provide no evidence to support the claim. At this time, the Board acknowledges the Court’s notation that the Compensation Service’s statement that the “long-term health effects” of “remote or secondary contact” with herbicides may have been a Colvin v. Derwinski, 1 Vet. App. 171 (1991) violation to the extent that the Board relied on such. In this regard and for clarification purposes, the Board specifies that it places its reliance on the finding that DoD had not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported. There was also no acknowledgement of exposure from equipment use. In addition to the foregoing, the Board points out that the AOJ also sent a request for verification of exposure to herbicides to the JSRRC. The JSRRC provided a response in March 2015, stating, “we coordinated our research with the National Archives and Records Administration (NARA) in College Park, Maryland. They were unable to locate 1973 unit records submitted by the 175th Ordinance Company (175th Ord Co.). Therefore, we coordinated our research with the US Army Center for Military History (CMH). We were able to verify from the 1973 Army Station List that the 175th Ord Co. was stationed at Fort Buckner, Okinawa, Japan. We also researched the 1973 Okinawa historical records available to this office. The records reveal that 158 US Navy ships and 10 foreign ships delivered supplies to Okinawa during the calendar year. However, the records do not document the use, storage, spraying, or transporting of herbicides.” Based on the aforementioned, in an April 2015 memorandum, the AOJ formally found that it was unable to verify the Veteran’s exposure to herbicides. Thus, the Veteran’s claimed exposure to herbicides in Okinawa, Japan, was not verified through a review of the evidence of record, a request to Compensation Service, or a request to JSRRC. In light of the foregoing, the Board finds that the Veteran’s claimed herbicide exposure has not been verified and that the Veteran’s assertions of exposure to Agent Orange are not competent or credible (discussed further below). At this time, the Board also notes that in an April 2020 sworn statement, the Veteran stated that he did not remember seeing anyone spray any chemicals while he was in Okinawa. The Veteran further asserted that he believed that he was exposed to Agent Orange when he refurbished the equipment and ammunition that returned from Vietnam, although he did not know what Agent Orange was while he was stationed in Okinawa. Also, even though the Veteran provided pictures in an attempt to show the circumstances of his claimed exposure to Agent Orange, the sworn statement and general pictures do not substantiate the Veteran’s contentions. The Board also acknowledges the prior Board decisions referenced by the Veteran. However, each decision by the Board is necessarily based on review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants, even those who may appear to be similarly situated. See 38 C.F.R. § 20.1303. The Board must decide this case based on the facts presented herein and specific to this Veteran. The Board has considered the Internet documents and articles that the Veteran has provided purporting to show that chemicals and tactical herbicides were used in Okinawa. Treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Such articles and evidence are not present here. In this case, the articles provide only speculative generic statements that contain no evidence that the Veteran in this case was exposed to herbicides during his service in Okinawa. In fact, the articles submitted in reference to hazardous waste and chemical clean up at Camp Kinser primarily reference periods prior to and subsequent to the Veteran’s service. The reports do not suggest herbicide exposure resulting from cleaning and refurbishing equipment between 1971-1973. Therefore, the articles do not, in and of themselves, support the Veteran’s claimed herbicide exposure. Wallin v. West, 11 Vet. App. 509 (1998). The Board finds the reports from the departments and agencies, to include the JSRRC, NARA and CMH, as well as the Veteran’s April 2020 sworn statement, serve to be highly probative as to whether the Veteran was exposed to herbicide agents consistent with his duties in Okinawa. In this regard, based on a review of official documents, it was found that there was no indication of the use, storage, spraying, or transporting of herbicides. Consequently, the Board finds that the Veteran was not exposed to herbicide agents coincident with his service in Okinawa. In reaching such determination, the Board recognizes the Veteran’s contention that he was exposed to herbicide agents during his military service; however, the Veteran is not competent to identify the particular herbicide chemicals, if any, to which he was exposed. Moreover, even when assuming without conceding that he is competent in this regard, the Veteran’s statements are not credible. The Veteran has submitted no competent, credible, and persuasive evidence demonstrating that he was exposed to herbicide agents. Further, as previously noted, in an April 2020 sworn statement, the Veteran reported that he did not remember seeing anyone spray any chemicals while he was in Okinawa and further reported that he did not know what Agent Orange was while he was stationed on Okinawa. In light of these facts, the Board concludes that the Veteran’s statements are not competent or credible and that there is no competent or credible evidence that the Veteran was exposed to herbicide agents coincident with his service in Okinawa. The Board also finds that the evidence of record weighs against the claim for service connection on any other basis. The Veteran’s prostate cancer and diabetes mellitus did not manifest in service. Service treatment records, including entrance and separation examinations, are negative for any complaints, diagnoses, or treatments for diabetes or prostate cancer or related symptoms. The first clinical documentation of the onset of diabetes mellitus is dated in January 1998, approximately 25 years after service separation. See Health Center of Northern New Mexico treatment records. The onset of prostate cancer was in 2009, 36 years after separation from his period of military service. See Las Vegas CBOC treatment records. Furthermore, while VA treatment records demonstrate continued treatment for diabetes and prostate cancer, the records do not suggest that such conditions are related to military service. Moreover, there is no indication that the Veteran’s diabetes mellitus and prostate cancer were manifested to a compensable degree within one year of separation from service. The Board emphasizes the multi-year gap between discharge from active duty service and evidence of disability decades later for each of these disabilities. See Maxson v. Gober, 230 F.3d 1330 at 1333. Therefore, service connection is not warranted on a presumptive basis. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § § 3.307, 3.309. The Board has considered the Veteran’s statements regarding the etiology of his disabilities. However, the diagnosis and etiology of diabetes and prostate cancer are not matters capable of lay observation, and require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not demonstrated that he has such expertise. Accordingly, the record does not show that diabetes mellitus, type II, and prostate cancer are otherwise related to service. In this regard, such disorders were not diagnosed until many years after service and the Veteran has not alleged a continuity of symptomatology or specified a disease, injury, or event in service, other than alleged herbicide exposure. Consequently, the Board finds that direct or presumptive service connection for the Veteran’s claimed disorders is not warranted as such is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of his discharge from service. Finally, the Board also notes that the Veteran has not been afforded VA examination. As detailed above, in service incurrence or herbicide exposure has not been established. The Board finds that no examination or opinion is necessary to decide the claims as there is no indication, beyond the Veteran’s own statements, that he has diabetes and prostate cancer related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Based on the foregoing, service connection is not warranted for diabetes mellitus, type II and prostate cancer. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, Associate Counsel 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.