Citation Nr: 21074260 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-20 912 DATE: December 14, 2021 ORDER Service connection for a left big toe condition is denied. Service connection for prostate cancer is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's left big toe condition began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's prostate cancer began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left big toe condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 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 1963 to December 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Service connection for a left big toe condition is denied. The Veteran contends that his left big toe condition is due to service. The Veteran indicated that he jumped off a military transport truck at Fort Jackson and injured his left plantar toe. See March 2015 correspondence. The Veteran asserted that he continued to have chronic pain as a result. At the August 2021 Board hearing, the Veteran testified that he jumped from 6 to 10 feet off the ground. The Veteran also testified that he did not seek treatment during service. As to symptoms, the Veteran testified that he had initial symptoms of bruising and calluses. Currently, he has corns or calluses on the underside of his big toe which is trimmed every month or two to relieve discomfort. The Veteran reported that current treatment includes diabetic creams, shoes, and socks, as well as surgical intervention two years ago. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Upon review, the preponderance of the evidence weighs against finding that the Veteran's left big toe condition began during service or is otherwise related to an in-service injury, event, or disease. Service treatment record are silent for complaint, diagnosis, or treatment for a left big toe condition. In fact, the November 1965 medical examination for release from active duty did not mention any abnormality related to the Veteran's left big toe. In the November 1965 report of medical history, the Veteran denied any foot trouble. In a December 1965 statement, the Veteran denied any changes in his medical condition since that November 1965 examination. After his separation from service, the Veteran was noted to have pre-diabetic neuropathy type calluses on his feet in May 2007 private treatment records. In January 2010 private treatment records, the Veteran was noted to have left hallux lesion almost completely resolved. The Veteran also denied ulcers during foot examination in February 2011 and June 2015. The Veteran was again noted to have a left foot callus in June 2016 and June 2018. In a February 2017 VA treatment record, the Veteran underwent imaging tests of his left foot. The findings ruled out a great toe accessory sesamoid, but noted large posterior and plantar calcaneal spurs. Upon review, service connection is not warranted in this case. The service treatment records are negative for a left toe condition. The Veteran's testimony did not establish that he had continuing symptoms of his left big toe condition after the alleged in-service injury. Rather, the treatment records and the Veteran's statements show that the condition manifested in irregular intervals. Moreover, post-service records appear to relate the Veteran's left toe condition to his diabetes mellitus, which is not a service-connection disability. The claims file otherwise contains no competent opinions linking the Veteran's disability to service. The Board has considered the Veteran's assertion that his left big toe condition is related to jump off a truck during service. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The etiology of the Veteran's callus of the left big toe is a medical etiological question involving internal and unseen system processes unobservable by the Veteran. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). As such, he is not competent to relate his left toe condition to service. The Board acknowledges that the Veteran has not been provided a VA examination. Generally speaking, for a VA examination to be warranted the evidence of record must "indicate" that a current disability "may be associated" with a Veteran's military service or due to or aggravated by a service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). While this is a low evidentiary threshold, there must be evidence indicating the existence of a current disability and possible association to military service. In this case, the evidence, as summarized above, does not indicate that the Veteran's left big toe condition may be associated with his military service. Rather, the treatment records indicate an etiological link to his nonservice-connected diabetes mellitus. Considering the evidence of record, the Board finds that the criteria outlined in McLendon are not met. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for his left toe condition. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection is not warranted. 2. Service connection for prostate cancer is denied. The Veteran asserts that his prostate cancer is due to exposures while he was stationed in Korea. See February 2014 correspondence. In his August 2021 Board hearing, the Veteran testified that he was exposed to toxic material, Agent Orange, and hazardous or waste material while stationed in Korea. See also March 2015 correspondence and April 2017 VA Form 9. Initially, the Board notes that the June 2014 rating decision denied service connection for prostate cancer. Within one year of the rating decision, new and material evidence was received. This included the March 2015 Veteran correspondence and the November 2014 private opinion. As such, the June 2014 rating decision was not final. Accordingly, new and material evidence is not required prior to adjudication of the claim for service connection for prostate cancer. 38 C.F.R. § 3.156 (b). Regarding service connection due to Agent Orange exposure, 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 to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations extend a presumption of Agent Orange exposure to certain veterans who served in Korea. Specifically, 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 (DoD), 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 the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). Based on the foregoing, the Board finds that a presumption of herbicide agent exposure in service is not warranted. The Veteran's military personnel records document that he served in Korea from May 1964 to May 1965. He does not allege, and the evidence does not show, that he served on the DMZ in Korea during the period from April 1968 to August 1971. Accordingly, presumptive exposure to herbicide agents is not established. As the Veteran is not presumed to have been exposed to herbicide agents during his service in Korea, the Board will now evaluate whether the evidence establishes service connection on a direct basis. There is no evidence, and the Veteran does not contend, that his prostate cancer had onset during service. In fact, the Veteran's November 1965 separation examination noted no related abnormalities, except a left thumb and wrist scar. In a November 1965 report of medical history, the Veteran reported no abnormalities related to prostate cancer. See also December 1965 statement. Post-service treatment records show that the Veteran was diagnosed with prostate cancer in the late 1990s and underwent a radical prostatectomy in June 1998. See November 2014 letter. The Veteran has a recurrence of prostate cancer in 2005 which was treated by radiation. When the prostate cancer recurred again in 2010, the Veteran was started on androgen deprivation medications. Thereafter, he was noted to be doing well. Turning to the Veteran's assertion of exposure in service, the Veteran's military personnel records show that his military occupational specialty was as a personnel carrier driver while stationed in Korea. At the August 2021 Board hearing, the Veteran testified that his duties included unloading and loading drums marked with orange stripes. When asked if he was ever actually exposed to the substance in the orange striped drums, the Veteran could not definitively say if anything might have gotten on him. In February 2014 correspondence, the Veteran indicated that he heard rumors that these drums contained herbicide agents several years after service. The Veteran also reported other exposures in service. This included exposure to toxic material while in the motor pool and hazardous or waste material during trainings in rice paddies. VA attempted to verify the Veteran's exposure to Agent Orange. However, it was determined that the information required to verify Agent Orange exposure was insufficient to send to Joint Services Records Research Center (JSRRC). See April 2014 memorandum. In making this determination, the JSSRC coordinator considered the Veteran's claim and statements, his personnel records, and service treatment records. Agent Orange exposure was not conceded. Upon review, the evidence does not establish exposure to herbicide agents, toxic or hazardous material. It is clear from the records that the Veteran did not observe any positive identification on the drums as those containing herbicide agents. The Veteran does not appear to have obtained clarification of what materials were in the drums. Further, he could not identify when he was ever in contact with the substances. Finally, the Veteran has not shown that he has any expertise in toxicology or hazardous material. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, he is not competent to identify Agent Orange, other herbicide agents, any toxic, or hazardous materials on sight. In addition, the Veteran is not competent to relate any exposure in service to his prostate cancer. Diagnosing cancer falls outside the realm of common knowledge of a lay person as it is a complex medical question that requires medical training and knowledge. Because the Veteran has not been shown to possess the requisite medical training, specialized training or expertise, his lay opinion has no probative value. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In support of his claim, the Veteran submitted a February 2017 private opinion of Dr. Cox. The opinion noted that the Veteran was exposed to chemical and toxin in Korea. Dr. Cox further opined that the Veteran's current prostate cancer, among others, are potentially accounted for by exposure to toxins during service. Upon careful review, the Board does not find this opinion probative. The opinion relies on an exposure history that is not supported by the record, as detailed above. As the probative value of a medical opinion is predicated on that opinion being fully informed, the February 2017 opinion is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the opinion is framed in speculative terms without any probability language. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). For these reasons, the opinion is not probative evidence in this claim. Ultimately, there is no competent or probative evidence which supports a nexus between the Veteran's prostate cancer and active service. As such, there is no reasonable doubt to be resolved in this instance. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for prostate cancer is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.