Citation Nr: 21031590 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-37 447 DATE: May 24, 2021 ORDER Service connection for a prostate disability, claimed as cancer, is denied. Service connection for erectile dysfunction is denied. Service connection for peripheral neuropathy of the bilateral lower extremities is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for coronary artery disease (CAD); as such, the appeal is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for diabetes mellitus, as such, the appeal is denied. FINDINGS OF FACT 1. It is not shown that the Veteran served in the Republic of Vietnam or was otherwise exposed to an herbicide agent (to include Agent Orange) during service. 2. A prostate disability did not manifest in service, prostate cancer did not manifest within the one-year presumptive period, and a prostate disability is not otherwise shown to be related to service. 3. The preponderance of the evidence of record is against finding that the Veteran has had erectile dysfunction at any time during or approximate to the pendency of the claim. 4. The Veteran does not have a diagnosis of early onset peripheral neuropathy; the preponderance of the evidence of record does not show that peripheral neuropathy of the bilateral lower extremities began in service, within the one-year of service, or is otherwise related to service or secondary to a service-connected disability. 5. Claims for service connection for CAD and diabetes mellitus were previously denied in a June 2013 rating decision; the Veteran did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the notice of the determination was mailed to the Veteran. 6. The evidence received since the June 2013 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claims of entitlement to service connection for CAD and diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for a prostate disability have not been met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The June 2013 rating decision pertaining to CAD and diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. Evidence received since the June 2013 rating decision is not new and material, and the Veteran's claims of entitlement to service connection for CAD and diabetes mellitus are not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1953 to November 1967. He testified at a videoconference hearing before the undersigned in March 2020. This case was before the Board in May 2020 when it was remanded for additional development. Service Connection The Veteran maintains that his prostate cancer, peripheral neuropathy, and erectile dysfunction are related to exposure to Agent Orange in service. See March 2018 Notice of Disagreement and July 2018 VA Form 9. He also maintains that his peripheral neuropathy is secondary to diabetes, and his erectile dysfunction is secondary to prostate cancer. See August 2017 VA Form 21-526EZ. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and, (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases, including malignant tumors and organic diseases of the nervous system, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a nonservice-connected condition is proximately due to or a result of a service-connected disability a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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), 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). Prostate cancer and early onset peripheral neuropathy (with an onset within one year of exposure) are included in this list. 38 C.F.R. § 3.309(e). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Prostate Cancer Post service treatment records show Veteran has had elevated prostate specific antigen (PSA) levels as early as 2009, with an abnormal prostate examination in 2013. Despite the Veteran's claim of being diagnosed with prostate cancer, the medical evidence does not confirm this diagnosis. Notably, a December 2017 VA treatment record notes the Veteran's report of one private physician diagnosing prostate cancer, and another private physician subsequently telling him he did not have prostate cancer. Treatment records are negative for any treatment, surgical or otherwise, for prostate cancer. Of note, no prostate disability was shown in service or until many years after service. The Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from prostate problems since service. Rather, as noted above, it is his contention that he has prostate problems as a result of herbicide agents that he believes he was exposed to in service. The Veteran maintains that his military service includes time in the Republic of Vietnam and Thailand, although he has provided inconsistent accounts of this service. During a December 1987 VA psychiatric evaluation, he stated that he served "two tours" overseas, including heavy construction work in Thailand from 1960 to 1961, and as a part of a motor transport and supply unit in Da Nang, Vietnam, from 1964 to 1965. In a January 2011 Statement in Support of Claim, he reported serving in Vietnam for six months in 1961 and then again in July 1964. In a March 2018 Notice of Disagreement, the Veteran indicated that he traveled to and from Da Nang, by landing craft and helicopter, on many occasions in service, with "boots on the ground" in Vietnam "for at least 30-60 days." He conceded he did not believe his records showed his service in Vietnam. In a June 2018 VA Form 9, the Veteran stated he was assigned to the third Marine air wing in March 1965, when he left Okinawa and went to Da Nang for six months. At the April 2020 Board hearing, the Veteran testified that his unit was assigned to temporary duty in Vietnam from May to July 1964 as a part of Marine Air Group 16. He also testified that he flew to Vietnam on roughly a weekly basis, spent the night in Phu Bai, and then returned to Da Nang. In support of his claim, the Veteran submitted (in August 2017 and again in May 2020) information obtained from the Internet pertaining to Marine Aviation Logistics Squadron 16 of the 3rd Marine Aircraft Wing. This material states that elements of the squadron deployed to South Vietnam and Thailand in April 1962. In March 1965, the squadron left Okinawa and was stationed in Da Nang. However, a review of the Veteran's service personnel records does not show any service in the Republic of Vietnam or Thailand. In a Statement of Personal History signed by the Veteran in June 1971, the only overseas service reported was Japan, from 1961 to 1962, and from 1964 to 1965. These records also show the Veteran embarked on board the USS Mann on July 1, 1964, in California and disembarked in Japan on July 2, 1964. He was assigned to Marine Air Group 16 only from July 21, 1964, through July 31, 1964. He was reassigned to Marine Wing Support Group 17 on August 1, 1964. He remained in Japan until July 25, 1965, when he departed on board the USS Mitchell. In August 2011 and April 2013, VA made formal findings that the Personnel Information Exchange System (PIES), military personnel records, service treatment records, and other information failed to confirm the Veteran's in-country Vietnam service. The only overseas service confirmed was in Japan. See August 2011 and April 2013 VA Memos. After reviewing the evidence of record, the Board finds that the Veteran's service records and the information from PIES to be more probative and persuasive of the circumstances of the Veteran's active service, as they are from official sources. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Internet article that the Veteran submitted is not specific to his service and the record does not otherwise support his claim that he had service in the Republic of Vietnam, or that he served in places in Thailand where herbicide agents might have been used. Accordingly, the Board cannot make a finding that he was exposed to herbicide agents during his military service. Finally, there is no medical opinion or other competent evidence showing that any current prostate disability is related in any way to the Veteran's military service. Erectile Dysfunction The Veteran's service treatment record (STRs) are silent for any complaints or findings related to erectile dysfunction. Likewise, the Veteran's post-service treatment records and examination reports are also silent for any findings of erectile dysfunction. After reviewing the foregoing evidence, the Board concludes the Veteran does not have current erectile dysfunction, and has not had any such disability during the pendency of the claim or recent to the filing of the claim. Lacking current disability, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, with regard to obtaining a VA examination, there is no indication in the record, to include no competent evidence of record (other than the Veteran's lay assertions, which have been non-specific in this regard) showing that he been diagnosed with erectile dysfunction. The Federal Circuit Court of Appeals (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). In this case, VA's duty to provide an examination is not triggered, and a VA examination regarding the Veteran's claim is neither necessary nor warranted. Id. Thus, the Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have erectile dysfunction at any time during the pendency of the claim or recent to the filing of the August 2017 claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the Veteran does not have a diagnosis, there is no current disability and the first element of service connection has not been met. See Brammer v. Derwinski, supra. Significantly, even if a diagnosis of erectile dysfunction was shown, the basis for this claim is that the Veteran believes he has erectile dysfunction secondary to a prostate condition. As discussed above, however, service connection for a prostate condition is not established. Therefore, although service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury, the minimum requirements for establishing service connection on a secondary basis are not met in this case. See 38 C.F.R. § 3.310. For the above reasons, service connection for erectile dysfunction must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, supra. Peripheral Neuropathy The Veteran's STRs are silent for any complaints or findings related to peripheral neuropathy. Following service, a November 1987 VA examination report similarly noted no complaints related to peripheral neuropathy, and a neurological examination was normal. A September 2012 private treatment record shows the Veteran denied numbness, tingling, and other neurological symptoms. The Veteran submitted a claim seeking service connection for peripheral neuropathy of the bilateral lower extremities in August 2017. However, the first mention of peripheral neuropathy in the post-service treatment records is in a February 2020 VA outpatient treatment record. Based on the foregoing, it is not shown that the Veteran has a diagnosis of early onset peripheral neuropathy (with an onset within one year of herbicide agents exposure). Moreover, as was discussed above, the record does not show the Veteran served in the Republic of Vietnam or was otherwise exposed to an herbicide agent (to include Agent Orange) during service. The evidence of record does not show that peripheral neuropathy was diagnosed in service or within a year of separation. The Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from peripheral neuropathy of the lower extremities since service. Additionally, there is no evidence showing that any current peripheral neuropathy of the lower extremities is related in any way to the Veteran's military service. To the extent the Veteran may claim service connection for peripheral neuropathy of the lower extremities secondary to diabetes mellitus, the Board notes he is not service-connected for diabetes mellitus. Therefore, although service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury, the minimum requirements for establishing service connection on a secondary basis are not met in this case. See 38 C.F.R. § 3.310. Claims to Reopen CAD and Diabetes Mellitus In a June 2013 rating decision, the Regional Office (RO), in pertinent part, denied the Veteran's claims for service connection for CAD and diabetes, finding that there was no evidence of any such disabilities being related to his military service. The Veteran did not appeal this decision or submit new and material evidence within one year of that decision. The decision is thus final based on the evidence then of record. 38 U.S.C. § 7105. At the time of the June 2013 rating decision, the record included STRs, which are silent for any complaints or findings related to CAD or diabetes, and service personnel records, which do not confirm any service in the Republic of Vietnam or Thailand. The record also included a November 1987 VA examination report that is negative for complaints or findings related to CAD (2007) or diabetes (2012), and VA and private treatment records dated from 2000 to 2013 that note the Veteran's treatment for CAD and diabetes. The Veteran did not appeal the June 2013 rating decision. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and was not associated with the claims file at the time of the June 2013 decision. Therefore, the June 2013 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. In 2017, the Veteran again filed claims for service connection for CAD and diabetes mellitus. As he was previously denied service connection for these disabilities, he must submit new and material evidence to reopen those claims. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence added to the record since the June 2013 denial includes VA medical records dated from 2013 to 2020. Although the additional medical evidence submitted is new, it is not material as it only shows ongoing treatment and does not otherwise show or indicate that the Veteran's CAD or diabetes mellitus is related to his military service. Similarly, the Internet article and statements that the Veteran has provided since 2013 concerning service in the Republic of Vietnam and Thailand are cumulative of information that was considered at the time of the June 2013 rating decision. Importantly, it has not been established that the Veteran was exposed to any herbicide agents in service. (Continued on the next page) Therefore, none of the evidence associated with the record since June 2013 relates to a previously unestablished fact necessary to substantiate the Veteran's claims. As such, the Board finds that new and material evidence has not been presented sufficient to reopen the previously denied claims of entitlement to service connection for CAD and entitlement to service connection for diabetes mellitus. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.