Citation Nr: 21014119 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-06 795 DATE: March 11, 2021 ORDER The severance of service connection for prostate cancer based on herbicide exposure was proper, and the appeal is denied. FINDINGS OF FACT 1. In a July 2012 rating decision, the Veteran was granted service connection for prostate cancer based on herbicide exposure. 2. In a January 2013 rating decision, the RO proposed to sever service connection for prostate cancer on the basis of clear and unmistakable error (CUE) in the grant of service connection for this disability in the July 2012 rating decision. The accompanying notice informed the Veteran of the 60-day period for the submission of evidence, and of the right to request a hearing. 3. A March 2014 rating decision severed service connection for prostate cancer, effective July 1, 2014. 4. The award of service connection for prostate cancer was clearly and unmistakably erroneous based on the evidence of record. CONCLUSION OF LAW The severance of service connection for prostate cancer was proper and service connection may not be restored. 38 U.S.C. § 5112 (2012); 38 C.F.R. § 3.105 (d)(2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had several periods of active service between April 1969 and September 1990. The record indicates that he retired from the Idaho Army National Guard in June 1996 after 27 years of service. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This claim was recently remanded in November 2018 for additional development, including to afford the Veteran a VA examination, which was accomplished in November 2019. A review of the record shows substantial compliance with the Board’s prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Law and Regulations Service connection will be severed only where evidence establishes that that the service connection grant was clearly and unmistakably erroneous, the burden of proof being on the Government. 38 C.F.R. § 3.105 (d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at the latest address of record of the contemplated action and furnished detailed reasons for the severance and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (d). To establish that a grant of service connection was the product of clear and unmistakable error, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. Allen v. Nicholson, 21 Vet. App. 54 (2007); Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). A clear and unmistakable error (CUE) is one about which reasonable minds could not differ. 38 C.F.R. § 20.1403 (a). In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105 (d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105 (a). The regulation at 38 C.F.R. § 3.105 (d) places at least as high a burden of proof on the VA when it seeks to sever service connection as 38 C .F.R. § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. Baughman v. Derwinski, 1 Vet. App. 563 (1991). However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the basis on which service connection was predicated is clearly erroneous. VA's burden is not to prove CUE in the original decision in the same manner a claimant would show CUE under 38 U.S.C. § 5109A or 38 U.S.C. § 7111. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen v. Nicholson, 21 Vet. App. 54 (2007). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. The diseases which are presumed to result from exposure to herbicides include prostate cancer. 38 C.F.R. § 3.309 (e). The presumption requires exposure to an herbicide agent and a manifestation of the disease to a compensable degree at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). 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 an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). If the evidence does not demonstrate service connection on a presumptive basis based on herbicide exposure, the Veteran may establish service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Factual history By way of history, the Veteran filed an original claim of entitlement to service connection for prostate cancer in June 2012. He asserted that he incurred the disorder after having spent one day in the Republic of Vietnam. In July 2012, the RO granted service connection for prostate cancer on a presumptive basis under 38 C.F.R. § 3.309(e) based on herbicide exposure in Vietnam. In January 2013, the RO proposed severing the award, stating that CUE had been committed in the July 2012 grant. The RO indicated that its previous finding that the Veteran had served in Vietnam had been erroneous based on a review of the Veteran’s service personnel records showing no Vietnam service. Notice of this rating decision was sent to the Veteran in January 2013, informing the Veteran of the 60-day period for the submission of evidence, and of the right to request a hearing. In the March 2014 rating decision on appeal, the RO effected the proposed severance from July 1, 2014. In appealing the decision, the Veteran has reiterated that he spent one day in Vietnam during the Vietnam Era, and was thereby exposed to herbicides causing his prostate cancer. 38 C.F.R.§ 3.309(e). He also testified at his Board hearing that while serving in the U.S., he was exposed to herbicides by handling materiel that had been in Vietnam, such as military equipment, gear, and uniforms. However, the Veteran denied having any evidence demonstrating a link between handling materiel from Vietnam and prostate cancer when questioned by the undersigned. A review of the service treatment records (STRs) reveal no complaints or treatment for prostate cancer. Clinical examination was normal on entrance and separation. A review of the post-service VA and private treatment records note a diagnosis of prostate cancer in March 2012; however, none of the Veteran’s treating physicians have given a positive opinion that the prostate cancer was the result of military service, including any claimed herbicide exposure. The Veteran underwent a VA examination in December 2019. He was diagnosed with prostate cancer. The examiner then gave a negative opinion that the prostate cancer was due to military service. The examiner noted that there was no evidence of an in-service event, injury, or illness during active duty, finding that there were no indications of any exposure event or other event that relates to the Veteran’s prostate cancer diagnosis in 2012. Analysis The initial question before the Board is whether the RO followed the applicable due process procedures for the actions taken. The Board finds that the RO followed the proper due process steps for severing service connection. See 38 C.F.R. § 3.105 (d). The RO complied with its notification obligations under 38 C.F.R. § 3.105 (d) by affording the Veteran notice of the proposed severance within a January 2013 rating decision, which also provided an adequate explanation concerning the reasons for the proposed severance, notified him that he had 60 days to submit additional evidence, and that he could request a hearing. The RO then issued the March 2014 rating decision severing service connection effective July 1, 2014. In short, the RO satisfied the procedural requirements of 38 C.F.R. § 3.105 (d). Accordingly, the remaining issue is whether the severance itself was proper in accordance with the applicable laws and regulations. Based on a review of the evidence of record, the Board finds that severance of service connection for prostate cancer was proper. A review of the Veteran’s service personnel records does not indicate that he had any Vietnam service, despite his contentions. The Veteran's testimony that he got “smuggled on” a plane going to Vietnam without orders is without probative value. There is no objective evidence documenting this alleged incident. The Board finds there would have been at least some objective evidence in the military records documenting that the Veteran was found in Vietnam and not supposed to be there or a finding of being absent without leave and some sort of documentation of the return trip to the United States. The complete absence of any of this evidence totally undercuts the Veteran's testimony (which is noted to be under oath). The Board finds the Veteran did not set foot in Vietnam. Therefore, the Veteran is not entitled to service connection on a presumptive basis. In addition, there is no probative evidence demonstrating service connection for prostate cancer on a direct basis is warranted. The STRs were silent for any complaints or treatment for prostate cancer. Furthermore, the examiner who conducted the December 2019 VA examination noted that there was no medical evidence of in-service herbicide exposure that related to the Veteran’s prostate cancer. The Board finds the VA opinion to be competent, credible, and probative. The examiner provided detailed rationale that took into consideration the Veteran’s lay statements and an accurate history of no service in Vietnam, a clinical examination of the Veteran, and the evidence of record, and provided a clear explanation that contained a clear conclusion and supporting data. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds no adequate basis to reject the competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Furthermore, this VA opinion is the only probative evidence that addresses the issue of medical nexus. The Veteran has not submitted or identified any evidence demonstrating a positive medical nexus between his prostate cancer and military service. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his prostate cancer is the result of his military service, including herbicide exposure. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of prostate cancer requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. The Board finds that the grant of service connection for prostate cancer was incorrect. The record did not contain probative evidence that the Veteran’s prostate cancer was related to service or any event, injury, or disease during service. Accordingly, the RO’s subsequent decision to sever service connection for prostate cancer was proper. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.