Citation Nr: 21063423 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-50 341 DATE: October 14, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for allergic rhinitis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's allergic rhinitis began during active service, or is otherwise related to an in-service event, injury, or disease, to include exposure to herbicide agents. 2. The preponderance of the evidence is against finding that the Veteran's allergic rhinitis began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for allergic rhinitis have not been satisfied. 38 U.S.C. §§ 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 June 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in May 2021, along with the additional issue of entitlement to service connection for and acquired psychiatric disorder, where they were remanded for additional development. Subsequent to the Board's remand, service connection was granted for posttraumatic stress disorder (PTSD). As the award of service connection represents a full grant of the benefit sought, the acquired psychiatric disorder claim is no longer on appeal. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2021. A transcript is of record. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Service connection for prostate cancer. The record verifies that the Veteran was diagnosed with prostate adenocarcinoma, for which he underwent a prostatectomy. See August 10, 2021 VA Examination. Thus, the remaining question is whether his prostate cancer and its residuals is related to service. While the Veteran's service treatment records (STRs) show treatment for gonococcal urethritis, which was treated with tetracycline, there are no complaints, diagnosis, or treatment related specifically to the prostate. Of note, a VA examiner in August 2021 opined that it was less likely than not that the Veteran's prostate cancer was related to these in-service infections, explaining that gonococcal urethritis (i.e., gonorrhea), is typically considered a sexually transmitted disease and has not been found to be a strong causal agent in the development of prostate cancer. The examiner further noted (and the Board confirms) that the Veteran explicitly denied any urinary issues at separation, and there is no further documentation of sequelae from these in-service infections. The earliest recorded evidence of a history of prostate cancer is his diagnosis decades after service. There is no competent evidence suggesting that the Veteran developed prostate cancer during service, within the year after separation, or as a result of an in-service event, injury, or disease. Therefore, direct service connection cannot be established. The Veteran's main contention, however, is not that his prostate cancer started during service, but that he was exposed to herbicide agents while stationed in Korea, and that VA should presume he developed prostate as a result of that exposure. See 38 C.F.R. § 3.309(e). A Veteran who served in or near the Korean Demilitarized Zone (DMZ) during the period beginning on September 1, 1967 and ending on August 31, 1971 is presumed to have been exposed to herbicides. 38 U.S.C. § 1116B. "Near" is not defined in the statute or the corresponding regulation. Id.; see also 38 C.F.R. § 3.307(a)(6)(iv). The Board understands "near" to mean "[t]o, at, or within a short distance or interval in space or time." WEBSTER'S II NEW COLLEGE DICTIONARY 730 (1999). The Board notes that the Veteran's tour dates in Korea fall outside of the required date range for presumptive service connection purposes. Thus, the Veteran cannot be presumed to have been exposed to herbicide agents as a result of his service in Korea. The Veteran asserted in an April 2016 statement that, while stationed in Korea, he was assigned to a "Korean Service Car," and his duties included delivering supplies to Army bases "all over South Korea, including the DMZ." He reiterated this assertion during his hearing testimony before the undersigned. Review of the record, however, reflects that VA considered the Veteran's statements regarding his possible herbicide agent exposure and determined that the information required to corroborate the purported exposure described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. See May 20, 2016 VA Memo. While the Veteran is certainly capable of identifying dead vegetation, as a lay person he is not competent to identify an actual chemical compound or to offer an opinion as to how far a chemical compound could travel or how long a chemical would last after exposure to the elements. Simply put, the Veteran is not competent to establish that he was exposed specifically to Agent Orange or any other herbicide agent in order to establish exposure for direct service connection purposes, nor does he actually allege that he witnessed dead vegetation or the spraying of a chemical agent. As such, the Board finds the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents in Korea. In sum, without competent evidence showing treatment for or a diagnosis of diabetes while on active duty, findings that it manifested to a compensable degree within a year following discharge from active duty, or affirmative evidence of the Veteran's personal exposure to herbicide agents during service, entitlement to service-connection for prostate cancer cannot be established. The claim for service connection must, therefore, be denied. 2. Service connection for allergic rhinitis The Veteran has a current disability, diagnosed upon VA examination in August 2021 as allergic rhinitis, that he asserts began during service. He stated to the undersigned during his hearing that he reported to hospital in service after feeling dizzy while stationed at Fort Huachuca, Arizona, which was assessed as an allergic reaction. The Veteran's STRs do indeed note treatment with Benadryl for an allergic reaction in August 1966. The Veteran's remaining STRs show no further complaints, diagnosis, or treatment related to any allergic reaction or symptoms indicative of allergic rhinitis. As the Veteran reported other ailments during service, and such problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with allergies or allergic rhinitis-type symptoms during service the Board would expect that he would have reported these problems to medical professionals. During his April 1967 separation examination, evaluation of the nose and sinuses was normal. In a corresponding report of medical history, the Veteran specifically denied having had ear, nose, or throat trouble, as well as sinusitis, hay fever, asthma, shortness of breath, or dizziness/fainting spells. If allergic rhinitis was present during service, and as the Veteran responded affirmatively when asked whether he had other conditions at separation, the Board would expect the Veteran would have responded "yes" when asked if he had symptoms indicative of such at separation because a reasonable person would have interpreted the question to include symptoms of rhinitis. A disability is not shown by medical evidence until February 2003, many years after the Veteran's separation from service, with VA treatment records noting a history of allergies and treatment with an antihistamine. As a chronic disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of the Veteran's allergic rhinitis cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he denied symptoms indicative of allergic rhinitis. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Additionally, and to the extent the Veteran may assert that his allergic rhinitis is related to herbicide agent exposure, as noted above the evidence is against a finding that the Veteran was exposed to herbicide agents while stationed in Korea. Pursuant to the Board's previous remand, the Veteran presented for a VA examination in August 2021, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that it was less likely than not that the Veteran's current allergic rhinitis onset during service or is related to any incident of service, to include environmental exposures at Fort Huachuca, Arizona. In support of this conclusion, the examiner explained that "[t]here is no documentation that the claimant was specifically medically evaluated, diagnosed and treated for an allergic rhinitis condition in the medical service records provided for review," and there is no documentation in the records provided that the Veteran was ever medically treated for allergic rhinitis following his separation from the military in 1967 until 2012, representing a 45-year time span. Such documentation on a consistent basis, would help substantiate that the Veteran indeed incurred an allergic rhinitis condition while on active duty that could reasonably persist in a chronic and unremitting manner to the present day. The examiner further noted that the Veteran explicitly denied allergic rhinitis on his separation health questionnaire, and the August 1966 allergic reaction note addresses a generalized allergic reaction of the entire body and not allergic rhinitis, as evidenced by the note making no mention of the nasal congestion, watery eyes, or scratchy throat that is typical of allergic rhinitis, as well as his treatment with intramuscular injection of Benadryl as to typical intranasal or traditional allergy medications given for allergic rhinitis. Had this note represented allergic rhinitis, the medical provider would have stated that is allergic rhinitis rather than allergic response, as an allergic response and allergic rhinitis are not synonymous without one another and are not used interchangeably by medical professionals. Finally, as to the Veteran's assertion of some sort of chemical exposure at Fort Huachuca, the examiner stated that there is no known epidemiologic study that has shown that, of those service members stationed at Fort Huachuca, greater than 50 percent of them, at least as likely as not, will go on to develop a permanent chronic allergic rhinitis condition. It is far more likely, the examiner concluded, that whatever episodes of allergic rhinitis that the Veteran presently experiences is due to allergens present where he resides rather than a continuation of nasal congestion experienced more than four decades previously. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. As to both claims being decided herein, the Board has considered the Veteran's statements, to include his assertions that his disabilities are related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, i.e., sinus and genitourinary issues; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. 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 this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.