Citation Nr: 21011461 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-03 815A DATE: March 1, 2021 ORDER Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam and, thus, he is not presumed to have been exposed to herbicide agents. 2. Prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, and did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for prostate cancer, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1966 to October 1970. In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2018 and September 2020, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its July 2018 and September 2020 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure, is denied. The Veteran contends that he suffers from prostate cancer as a result of his active duty service. Specifically, he alleges that he was exposed to herbicides, to include agent orange, while stationed at Norton Air Force Base and that such exposure caused his current cancer. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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.; 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 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, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran 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, 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 service. 38 U.S.C. § 1116 (f). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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). As an initial matter, the Board observes that the Veteran was diagnosed with prostate cancer in 2012. However, the evidence does not show, and the Veteran has not contended, that such had its onset during service, manifested within one year of service, or is otherwise directly related to service. In fact, the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of prostate cancer or related symptoms, and such was not diagnosed for many years after service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). Therefore, presumptive service connection and service connection based on continuity of symptomatology is not warranted. Rather, the Veteran alleges that his prostate cancer is presumptively related to his alleged in-service exposure to herbicide agents. In regard to presumptive service connection based on agent orange exposure, as previously noted the Veteran contends that he was exposed to herbicide agents during his service. The Board notes that the Veteran served for approximately 4 years from November 1966 to October 1970 in the United States Air Force during the Vietnam Era. However, there is no indication, and the Veteran has not contended, that he set foot in the Republic of Vietnam. Furthermore, there is no indication that the Veteran served aboard a “brown water” vessel during his active duty. The Veteran’s DD 214 and his personnel records do not reflect that he served in the inland waters of Vietnam or the waters off Vietnam. Furthermore, there is no indication that the Veteran is in receipt of the Vietnam service medal. In fact, this document indicates he had no foreign and/or sea service. Therefore, the Board finds that the Veteran does not have the requisite service in Vietnam to recognize presumptive exposure to herbicide agents. Rather the Veteran has alleged that he was exposed to herbicides during his time stationed at Norton Air Force base, where he worked as a mechanic. The Board notes that the Veteran’s DD 214 does confirm that the Veteran was stationed at Norton Air Force Base. However, in this regard, the Board finds that the evidence does not support the Veteran’s contention that he was exposed to herbicides, specifically Agent Orange during his time at Norton Air Force Base. Rather inquiries into whether the Veteran’s unit history, personnel history and history of the base failed to confirm the use of or exposure to agent orange. See September 2019 DPRIS request. Specifically, the DPRIS response noted that “the information was negative and did not report on, or discuss the Veteran, or unit personnel assigned to the 63rd OMS or the 63rd MAW being exposed to Agent Orange or tactical herbicides, while performing daily duty assignments on, or around unit aircraft at Norton AFB.” Furthermore, “the information did not report on unit personnel being assigned to load unit aircraft with unknown barrels in-route to Vietnam, and did not report on or describe the Veteran’s daily duty assignments while assigned to Norton AFB, during the May through June 1967 time periods.” Further inquiry revealed that routine range management, brush clearing and weed killing at bases was accomplished with commercial herbicides which do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). Furthermore, it was noted that the Department of Defense has not identified any location on Norton Air Force Base where Agent Orange was used, tested, stored or transported. Rather they indicated that Agent Orange was developed specifically for jungle combat and only used in Vietnam from 1962 to 1971. In addition, Agent Orange was not transported to or from Vietnam aboard military aircraft, rather it was shipped directly from Alabama or Mississippi via merchant ships. Finally, upon termination of its use, Agent Orange was stored at Johnston Island and brought there via merchant ships and not military aircraft. Consequently, as the Veteran did not serve in the Republic of Vietnam, he is not presumed to have been exposed to herbicide agents. Furthermore, there is no presumption of exposure to herbicides for Norton Air Force Base and the evidence has not demonstrated that the Veteran was otherwise exposed. Therefore, presumptive service connection based on Agent Orange exposure is not warranted. Finally, while presumptive service connection is not warranted, the Veteran is not barred from direct service connection. However, there is no credible evidence that the Veteran was otherwise exposed to herbicides, and therefore no way to show that the Veteran’s prostate cancer was directly related to any such exposure. See Combee, 34 F.3d at 1042. Despite a lack of evidence of in-service exposure, the Veteran was provided with VA examinations in May 2013, September 2016 and November 2020. The examiners found that the Veteran’s prostate cancer was not caused by or related to any event or injury in service, to include any alleged herbicide exposure. The November 2020 VA examiner specifically found no evidence of any herbicide exposure and therefore no nexus. As the examiners supported their conclusions with adequate reasoning and rationale, the Board finds them probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Finally, the Board notes that there are no contrary opinions of record. Therefore, as essential elements of direct service connection are missing, direct service connection is not warranted. The Board finds that the Veteran’s prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include any alleged herbicide exposure, and did not manifest within one year of service discharge. Therefore, service connection for such disorder is not warranted. 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 claim of entitlement to service connection for prostate cancer. As such,   that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.