Citation Nr: 21021073 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 14-34 657A DATE: April 9, 2021 ORDER Service connection for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran served in the United States Air Force (USAF) and was stationed in Mukdahan USAF Dispensary in Thailand. However, the evidence does not show that he was in-fact exposed to herbicides, including Agent Orange, while on active duty. 2. The Veteran’s prostate cancer was not shown in service or for many years thereafter; and the preponderance of the evidence fails to establish that the disability is etiologically related to service, including herbicide exposure therein. CONCLUSION OF LAW The criteria for service connection for a prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, 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(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Entitlement to service connection for prostate cancer. The Veteran contends that his prostate cancer is due to exposure to herbicides in service. Specifically, he contends that while stationed at Mukdahan, Thailand, his duties placed him at the perimeter which was “at least 104 miles from the DMZ in Vietnam” and also approximates “he was 50 miles or closer to the Ho Chi Minh Trail” and exposed herbicides including Agent Orange. See Correspondence dated May 2014; Appellate Brief dated March 2019. Additionally, at his hearing, the Veteran testified that Mukdahan was a “satellite facility” and he “traveled to multiple other bases in Thailand” where he was “within 500 meters of the perimeter” of the base at Ubon and Nakhon Phanom and ultimately exposed to herbicides; alternatively, he stated that “Agent Orange from NPK was transported down to Mukdahan to be sprayed” and clear the vegetation at his facility. See February 2021 Hearing Transcript, pp. 6-7. By way of history, the Veteran filed a claim for prostate cancer in April 2012 which was denied by rating decision and notification dated April 2013. As a preliminary matter, the Board notes that the Veteran did not serve in the Republic of Vietnam or Korea, nor does he contend visitation to those locations. However, he specifically alleges exposure to herbicides including Agent Orange while in Mukdahan USAF Dispensary in Thailand. Although the record shows the Veteran had service in Mukdahan, Thailand, the Board notes that herbicide exposure consideration is extended to veterans who served at one of the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhil, Korat, and Don Muang. Here, the Mukdahan site is not one of the RTAFB recognized by VA as associated with exposure to herbicides. Indeed, military personnel records indicate that on December 1, 1969, the Veteran was ordered to report to Don Muang Air Base, Thailand for passenger service and transport to Travis Air Base in California. Another record shows dental treatment was received at Nakon Phanom, Thailand in February 1969. However, neither of the two documented visits show that the Veteran’s duties placed him near the base perimeter. Rather, the evidence shows that his visit to Don Muang, which was 13 days prior to service discharge, was merely the location to depart Thailand; likewise, the visit to Nakon Phanom was for a dental appointment. Even with the two visitations described above, the evidence still fails to show his duties placed him on or near the perimeters of one of these qualifying Thailand bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. As to the Veteran’s contentions of having “traveled to multiple other bases in Thailand” and being “at least 104 miles from the DMZ in Vietnam” and “50 miles or closer to the Ho Chi Minh Trail,” there is simply no evidence to support this assertion and the claimed exposure is not established. Moreover, as indicated above, Mukdahan is not one of the Royal Thai Air Force Bases and special consideration of herbicide exposure on a factual basis is not extended as he was shown to visit for dental treatment or departure location. The Board relies on the official service records. Meaning, there is no corroborating evidence of actual, direct exposure to herbicides in service. Thus, he cannot be presumed to have been exposed to herbicides. Additionally, there is also no probative evidence of a nexus between the Veteran’s service and prostate cancer. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In fact, VA treatment records of April 2012 notes a biopsy showed prostate cancer, with a subsequent note in May 2012 indicating newly diagnosed prostate cancer, which is approximately 43 years after service discharge. To that end, the Board notes that no VA examination or medical opinion was obtained in relation to the issue of service connection for squamous cell carcinoma. In determining whether the duty to assist requires the VA to provide such examination or opinion, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for squamous cell carcinoma. Although the Board acknowledges that the Veteran’s VA and private medical records show treatment for prostate cancer, there is no objective evidence of record relating the disease to service. Furthermore, there is no evidence of record to show that prostate cancer manifested during active service or within one year of separation from active service. In fact, the Veteran’s service treatment records are absent of any treatment, findings, or diagnosis of prostate cancer until the biopsy in 2012, over four decades after separation from service. Moreover, treatment records after separation fail to demonstrate persistent or recurrent symptoms associated with prostate cancer. Lastly, there is simply no competent evidence of record even suggesting that prostate cancer may be associated with service. In the absence of required elements above, the Board observes that VA has no duty to provide an examination or obtain an opinion in this case. See 38 U.S.C. § 5103A(a). Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the Veteran’s claim herein. The Board has considered the multiple website links to Internet articles and research submitted in his Appellate Brief in March 2019. Among those includes a website link about “Arsenic” from the National Pesticide Information Center; a link to document titled, “Air Force Munitions Facilities Standards Guide”; a link to report titled “Assessment of Ecological Effects of Extensive or Repeated Use of Herbicides” dated December 1967; and a link to technical manual titled, “Cleaning and Corrosion Prevention and Control, Aerospace and Non-Aerospace equipment”. However, the Internet articles submitted by the Veteran were not accompanied by an opinion of any expert, and the articles speak in terms too general to be of probative value to the Veteran’s case. See Mattern v. West, 12 Vet. App. 222, 228 (1999). Furthermore, the Internet articles and research are insufficient to establish the medical nexus opinion required for causation. Lastly, consideration has been given to the Veteran’s statements of the etiology of his claimed prostate cancer as related to service; essentially that his prostate cancer is due to herbicide exposure in Thailand. However, as a layperson, without any demonstrated, specialized knowledge concerning the etiology of these disabilities, his allegations are not competent evidence of a medical nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran is not competent to independently opine of exposure to Agent Orange as the specific etiology of a claimed condition, because this involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Consequently, the Veteran’s lay statements of nexus opinion cannot constitute competent medical evidence upon which to grant a claim for service connection in this case. As demonstrated above, there is simply no competent evidence to support a finding of an etiological relationship between the Veteran’s current prostate cancer and military service. Additionally, the Board finds persuasive the absence of competent medical evidence to substantiate a claim for service connection in this case. As such, service connection for prostate cancer is not warranted. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for prostate cancer. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.