Citation Nr: 21067479 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-28 213 DATE: November 4, 2021 ORDER The petition to reopen a claim of entitlement to service connection for prostate cancer is granted. Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for hepatitis B is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for liver cancer, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. An April 2009 rating decision last denied service connection for prostate cancer; evidence pertaining to the Veteran's prostate cancer since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 2. The Veteran had service in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. 3. Hepatitis B and hypertension are not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 4. The preponderance of the competent and credible evidence of record fails to establish that hepatitis B or hypertension manifested in service or within one year of service discharge or that they are otherwise etiologically related to the Veteran's active service (including his in-service exposure to herbicides). CONCLUSIONS OF LAW 1. The April 2009 rating decision which denied the Veteran's claim for prostate cancer is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. The evidence received since the last final April 2009 rating decision is new and material, and the claim for service connection for prostate cancer is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for hepatitis B are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 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 July 1967 to April 1971. In October 2021, the Veteran did not report for his requested hearing before the Board. Rather, his representative submitted a statement indicating that the Veteran wished to withdraw his hearing request due to his deteriorating health condition. The Board will thus proceed with adjudication of the Veteran's claims. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for prostate cancer. At the time of the last final denial of the Veteran's claim for service connection for prostate cancer in April 2009, evidence of record included service treatment records, and post service treatment records. The claim was denied because there was no evidence the Veteran had served on the ground in the Republic of Vietnam. The Veteran did not appeal this denial and it became final. Evidence associated with the claims file since the previous April 2009 denial includes additional treatment records reflecting continued issues with the Veteran's prostate cancer, deck logs, and a VA memo conceding in-service exposure to herbicide agents. The evidence is new as it was not previously considered by the RO. The VA memo relates to a previously unestablished fact necessary to substantiate the claim exposure to herbicide agents, which is an in-service event. Thus, new and material evidence has been received to reopen the claim for service connection for prostate cancer and the petition to reopen is granted. Service Connection 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 2. Entitlement to service connection for prostate cancer. A Veteran who during active military, naval, or air service 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 certain herbicide agents, to include the commonly referred herbicide agent, Agent Orange, absent affirmative evidence to establish that the Veteran was not exposed. See 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. Certain disorders, including prostate cancer, if manifest to a degree of 10 percent or more for an herbicide agent-exposed veteran may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The Veteran asserts that his prostate cancer is due to his exposure to herbicide agents. As noted above, prostate cancer is a disease recognized as being associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). The Veteran has not asserted, nor does the evidence suggest, theories of etiology other than herbicide agent exposure. As a preliminary matter, the Veteran's treatment records reflect an initial diagnosis of prostate cancer around 2006. More recent treatment records in May 2020 reflect metastatic prostate cancer. With a current disability established, the question becomes whether the Veteran was exposed to herbicide agents during his active service in the offshore waters of Vietnam. An August 2021 internal VA memorandum shows the Veteran's exposure to herbicide agents was conceded based on the Veteran's nautical service in the offshore eligible waters of Vietnam, as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2, 133 Stat. 966, 966-67. With in-service herbicide agent exposure conceded, the Veteran's prostate cancer is presumptively found related to his in-service exposure to herbicide agents. Service connection is therefore warranted. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). 3. Entitlement to service connection for hepatitis B. 4. Entitlement to service connection for hypertension. The Board first considers whether the Veteran is entitled to service connection for hepatitis B and hypertension on a presumptive basis. Here, however, despite the Veteran's presumed exposure to an herbicide agent during his service in Vietnam, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is still not for application. Although not specifically alleged by the Veteran, the Board has initially considered whether service connection is warranted for his claimed conditions due to his presumed exposure to herbicide agents. Service connection is only warranted on this basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e). As the Veteran's hepatitis B and hypertension are not among those listed under 38 C.F.R. § 3.309(e), an award of presumptive service connection based on herbicide exposure is not warranted. Additionally, with respect to presumptive service connection under § 3.309(a), in light of the lack of medical evidence reflecting a diagnosis of hypertension within one year of the Veteran's separation from active service, service connection on a presumptive basis for this disability is also not available. 38 C.F.R. § 3.309. Next, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the Veteran's hepatitis B and hypertension and in-service herbicide exposure or any other incident of active service. Here, the Veteran generally claims that his hepatitis B and hypertension are the result of his service. Essentially, the Veteran asserts that service connection is warranted under the theories of direct service connection and presumptive service connection. As noted above, presumptive service connection is not warranted. The Board will next address the Veteran's contentions that his hepatitis B and hypertension are the result of service. However, the evidence does not show a causal relationship between the Veteran's hepatitis B and hypertension and in-service herbicide exposure or any other incident of active service. The Veteran's service treatment records are devoid of any instance of treatment for hepatitis B or hypertension. An April 1971 separation examination did not reflect a diagnosis of hepatitis B or hypertension. VA treatment records first show a diagnosis of hepatitis B and hypertension around 2006. The Veteran's reported history of continued symptomatology since active service has been considered but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, as noted above, treatment records first reflect a diagnosis of hypertension around 2006. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This long period without problems is a factor that weighs against the claim. The value of the Veteran's assertions is additionally diminished, given that there is clinical evidence indicating that hypertension was not noted on his separation examination. Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology of hypertension since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Continuity of symptomatology has not here been established, either through the competent evidence or through the Veteran's statements. The Board has also considered the Veteran's statements regarding continuity of symptoms of his hepatitis B since service. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.309(a). As the Veteran's hepatitis B is not listed under § 3.309(a), entitlement to service connection based on a theory of continuity of symptomatology is simply not applicable in the present case. Nevertheless, the Board notes that treatment records do not reflect treatment for hepatitis B until around 2006. Having determined that the Veteran's alleged clinical history regarding onset and continuity of hypertension is not consistent with the evidence, and is not applicable for his hepatitis B claim, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active service and current complaints. Here, however, the service and post-service evidence provides particularly negative evidence against these claims. The objective medical evidence of record does not establish a link between the Veteran's hepatitis B and hypertension and his period of military service, to include his presumed herbicide exposure. With respect to his hepatitis B and hypertension claims, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service, including herbicide exposure, and his claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the etiology of hepatitis B and hypertension, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board notes that no examination was conducted nor is one warranted in conjunction with the service connection claim for hepatitis B or hypertension. In this regard, under 38 U.S.C. § 5103A(d), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Specifically, there is no indication that the Veteran's hepatitis B or hypertension is related to his service. Further, the Board notes that a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In conclusion, the Board finds that the preponderance of the evidence is against the entitlement to service connection for hepatitis B and hypertension, to include as due to his in-service herbicide exposure. As such, the appeal is denied. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Entitlement to service connection for a lumbar spine disability is remanded. Service treatment records reflect that the Veteran was treated for low back pain in November 1968. A January 1969 treatment record reflects that he was diagnosed with a muscle strain of the back. Current treatment records reflects treatment for a lumbar spine disability. The Board notes that an April 2018 VA examination and opinion were completed. The VA examiner provided a negative etiological opinion; adequate rationale for this opinion was not provided. The Board finds that an addendum opinion regarding this claimed disability is warranted. 2. Entitlement to service connection for liver cancer, to include as due to herbicide exposure, is remanded. The Veteran asserts that his liver cancer is secondary to his conceded herbicide exposure. Treatment records reflect a diagnosis of liver cancer. See August 2014 VA treatment record. The Board finds that a VA examination and opinion are necessary to adjudicate this claim. The matters are REMANDED for the following actions: 1. Forward the Veteran's claims folder to an examiner for addendum opinion. The examiner is requested to review the claims folder, to include this remand. Following review of the claims file the examiner should provide opinions on the following: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's lumbar spine disability had its clinical onset during his active duty service or is otherwise etiologically related to his active service, to include his in-service treatment in November 1968 and January 1969. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 2. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his liver cancer. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with the examinations, and the examiner must indicate that such review occurred. The examiner must provide a well-reasoned opinion on: Whether it is at least as likely as not (a probability of 50 percent or greater) that any liver cancer had its onset in service or is otherwise medically related to in-service injury or disease, to include presumed herbicide exposure. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any of the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.