Citation Nr: 21031659 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-21 690 DATE: May 24, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. A preponderance of the evidence does not show that the Veteran was actually exposed to herbicides in service. 2. A preponderance of the evidence does not show the Veteran's diabetes had its onset in or was otherwise etiologically related to his military service. 3. A preponderance of the evidence does not show the Veteran's prostate cancer had its onset in or was otherwise etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1973 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018 at which time they were remanded for further development, specifically, to provide additional development regarding the Veteran's contentions of exposure to herbicides in Panama. A Supplemental Statement of the Case was issued in March 2021. Service Connection 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 diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires (1) evidence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for certain chronic disabilities, including diabetes mellitus and prostate cancer, if manifested as such during service or manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Where a veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence that the currently diagnosed chronic disease was chronic during service or within the presumptive period after service, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is shown. This is an alternative method of establishing service connection, but only for those chronic diseases listed under 38 C.F.R. § 3.309(a): Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the theory of continuity of symptomology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a)). In addition, service connection may be granted on a presumptive basis for certain diseases if a veteran was exposed to an herbicide agent during active service. The governing law provides that 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 that service." 38 U.S.C. § 1116(f). The laws and regulations pertaining to Agent Orange exposure do not provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of the listed diseases and served on active duty in Panama or the Panama Canal Zone. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure The Veteran essentially contends that he was exposed to herbicide agents while serving in the Panama Canal Zone at Fort Kobbe. The Veteran reports exposure to herbicides while serving as a Field Artillery Cannon Crew Member with survey and search light section while stationed at Fort Kobbe, Panama Canal Zone, assigned to the Bravo Battery, 22nd Field Artillery Regiment. See Research Request Record, April 2021. In September 2014 correspondence, the Veteran asserted that he was exposed to herbicides while stationed in Panama from 1973 to 1975, where his duties in infantry frequently required him to sleep in the surrounding jungle. In October 2014 correspondence from the Veteran, he asserted he was stationed at Fort Davis in Panama, at which time he spent 6 months in the jungle and watched the spraying of herbicides for 20 months. The Veteran's service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis of diabetes. An in-service examination conducted in June 1976 was silent for any issues related to diabetes. Further, service records do not show any reports of environmental exposures in service. Post service records show that the Veteran has been diagnosed with diabetes. See Private Treatment Records, March 2002. As such, the first element of service connection has been established. Therefore, resolution of this appeal turns on whether there is the required attribution of his diabetes to his military service, including to his claimed herbicide exposure. As to the second element of service connection, the Veteran's diabetes was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Essentially, the evidence of record shows that the Veteran was not diagnosed with diabetes until March 2002, approximately 26 years after his separation from service and outside of the applicable presumptive period. As such, the Veteran is not entitled to service connection on a presumptive basis for chronic conditions. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends that he is entitled to service connection on a presumptive basis due to herbicide exposure while stationed in Panama. As discussed above, service connection for diabetes may be granted on a presumptive basis if a veteran was actually exposed to herbicides. See 38 C.F.R. § 3.309(e). To support his claim of herbicide exposure, the Veteran has submitted several articles discussing allegations of the use of herbicide agents in Panama from the mid-1960s to early-1970s. Of particular note, the Veteran submitted an article from the Dallas Morning News, as well as articles from bluewaternavy.org, which discussed an article by the Dallas Morning News concerning the use of herbicides in Panama during the Vietnam War. Though noting that the allegations were unproven, the articles discussed reports that Agent Orange was used at Fort Sherman in 1969 and 1970, as well as the award of benefits to the widow of a veteran on the basis of herbicide exposure while stationed in Panama in the early 1970s. See Robberson, Tod, U.S. Tested Agent Orange in Panama, Dallas Morning News, August 20, 1999; Agent Orange in Panama, bluewaternavy.com. However, the articles provide only speculative general statements that contain no evidence that the Veteran was personally exposed to herbicides during his service in Panama. Therefore, the articles do not, in and of themselves, support the claim for service connection. Wallin v. West, 11 Vet. App. 509 (1998). In other words, these articles are afforded no probative weight as to whether this specific Veteran was exposed to herbicides while stationed in Panama. Moreover, a layperson's assertions indicating exposure to gases or chemicals during service are not, alone, sufficient to establish actual exposure to an herbicide agent. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In an October 2014 Memorandum, VA issued a formal finding that it lacked the information required to verify herbicide agent exposure in Panama. The memorandum noted a review of the Veteran's available service treatment and personnel records that indicated he was stationed in Panama in 1974 and 1975 at Fort Kobbe; however, they did not include any irrefutable confirmation that he was exposed to Agent Orange or any other tactical herbicides while stationed there. Therefore, exposure to herbicides is not conceded. Pursuant to the September 2018 Board remand, a record received October 22, 2020 show VA received notice that the Joint Services Records Research Center (JSRRC) was temporarily closed due to the COVID-19 pandemic. VA received a records research response in December 2020. Upon reviewing the internet articles and historical reports supplied by the Veteran, the VA researcher noted that Military Records Services was unable to research this request because the circumstances of the Veteran's specific exposure were not provided. An additional records research response was supplied in April 2021. The examiner noted the Veteran reported he was exposed to herbicides while serving as a Field Artillery Cannon Crew Member, with the survey and search light section. The researcher noted the request was closed without research, as it was not associated with an open/pending EP. The Veteran's service personnel records do not indicate service in the Republic of Vietnam or along the Korean DMZ. See Service Personnel Records. The Veteran does not contend to the contrary. As such, as actual exposure has not been shown by service department records, and there is no credible evidence otherwise establishing exposure to herbicide agents, the Board finds that exposure to herbicide agents is not conceded, and service connection cannot be granted on a presumptive basis for disabilities as a result of herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Nonetheless, service connection may still be granted on a direct basis. However, there is no credible evidence supporting an in-service event, nor is there competent evidence suggesting a medical nexus between the Veteran's diabetes and his active duty service. Indeed, the evidence of record is silent with respect to any indication or assertion of a medical nexus aside from the Veteran's claim of entitlement to service connection. The Board notes that no examination has been conducted. The Board acknowledges that, under 38 U.S.C. § 5103A(d), VA's duty to assist includes providing a claimant with a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim and there is competent evidence that the claimant has a current disability and there is an indication that the disability may be associated with the claimant's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the evidence "suggesting" a nexus between the Veteran's diabetes and his military service consists solely of the Veteran's assertion that his condition is related to in-service herbicide exposure. However, a mere conclusory generalized lay statement that a claimant's condition is related to their military service is insufficient to require VA to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Given the complete lack of evidence of a medical nexus between the Veteran's diabetes and military service, the Board finds that the third element of service connection has not been met. The Board has considered the Veteran's contentions that his diabetes was caused by herbicide exposure. The Veteran is competent to give evidence about what he experiencedsuch as observing chemicals sprayed. He is not; however, competent to determine whether the chemicals sprayed were herbicides. In this regard, the service department records are more probative than the Veteran's lay assertions about chemical exposure. In most cases, the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. Further, herbicide exposure has not been established. The Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his diabetes and service. As herbicide exposure is not conceded, service connection on a presumptive basis cannot be granted. The Board appreciates the Veteran's contentions that his claimed disabilities were incurred in service, however, these statements are outweighed by the probative evidence showing no diabetes during service, or for several years post-discharge. In other words, there is no competent or credible evidence of record showing that the Veteran's diabetes was caused or aggravated by an event, injury, or disease in service. Additionally, as there is no medical nexus between the Veteran's diabetes and service, the claim fails on a direct basis for service connection. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claim is denied. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure The Veteran has claimed entitlement to service connection for a prostate cancer disability, asserting that his prostate cancer was a result of exposure to an herbicide agent while serving in Panama. Turning first to an analysis of the Veteran's claim for service connection on a presumptive basis, the Veteran asserts that his prostate cancer disability was caused by exposure to Agent Orange in service. As previously noted, there is no evidence that the Veteran ever served in the Republic of Vietnam. Notably, the Veteran's service treatment records and personnel records do not indicate any service in Vietnam. The Veteran has offered many lay statements about his current prostate cancer disability and its etiology, including linking it to in-service experiences where he believes he was exposed to Agent Orange. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, a determination of whether the Veteran was exposed to Agent Orange or what caused the Veteran's current prostate cancer disability, requires specialized training for a determination as to what a chemical is, even if present, and specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. See also 38 C.F.R. § 3.303(b). As actual exposure has not been shown by service department records, and there is no credible evidence otherwise establishing actual exposure to herbicide agents, the Board finds that exposure to herbicide agents is not conceded, and service connection cannot be granted on a presumptive basis for disabilities as a result of herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6), 3.309(e). The Board incorporates, by reference, the findings of no herbicide exposure in Panama as discussed in the section above. Additionally, the Veteran's prostate cancer was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Essentially, the evidence of record shows that the Veteran was not diagnosed with prostate cancer until 2007, therefore outside of the applicable presumptive period. As such, the Veteran is not entitled to service connection on a presumptive basis for chronic conditions. 38 C.F.R. § 3.307, 3.309(a). Furthermore, the evidence fails to establish that the Veteran is entitled to service connection for his prostate cancer disability on a direct service connection basis. Although the Veteran has a diagnosis of a prostate cancer disability, there is no evidence of the other two elements required for direct service connection, an in-service incurrence or aggravation of a disease or injury, and a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. Here, the Veteran's service treatment records do not contain any mention of prostate cancer or related symptoms during service. Similarly, the Veteran's June 1976 EDP Report of Medical Examination does not indicate any prostate problems or symptoms. In this regard, the medical provider checked "Normal" for the "G-U System." Post-service, there are no records indicating that the Veteran sought treatment for a prostate condition within one year of separation from service, or for decades after service. Instead, the evidence of record indicates that the Veteran was diagnosed with prostate cancer in April 2007, decades following service. In August 2007, the Veteran underwent a prostatectomy. A private medical record from April 2007 noted a significant family history of prostate cancer. Four of the Veteran's eight brothers had prostate cancer, in addition to his father. In addition, the available records do not contain any medical opinion finding or indicating any causal connection or link between the Veteran's current prostate cancer disability and his military service. In sum, the evidence does not support a direct service connection for the Veteran's prostate cancer disability, as there is no evidence that the Veteran's prostate condition was incurred or aggravated in service and there is no evidence that there is a casual relationship (nexus) between an in-service disease or injury and the Veteran's current prostate cancer disability. The available evidence does not demonstrate that there was any in-service diagnosis or symptom of a prostate condition and the Veteran was not diagnosed with prostate cancer until 2007, decades after separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the lapse of time between service separation and the earliest documentation of a current disability is a factor for consideration in deciding a service connection claim). Additionally, the available record does not contain any medical opinion finding or indicating any causal connection or link between the Veteran's current prostate cancer disability and his military service. Thus, the Board finds that the Veteran's claim for service connection for a prostate cancer disability on a direct service connection basis must be denied. The Board acknowledges that the Veteran has not been provided with a VA compensation examination addressing his service connection claim for prostate cancer. Regulations provide that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). In service-connection claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) 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, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon, 20 Vet. App. at 81-82. In this case, an examination is not necessary to adjudicate the Veteran's service-connection claim. As noted in the discussion above, there is no indication of an injury or other incident in service resulting in a current prostate cancer disability that is etiologically due to his military service. Therefore, a remand requesting an examination is not required. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit of the doubt rule as required by law and VA regulations. The preponderance of the evidence is against the Veteran's claim, and as such entitlement to service connection for a prostate cancer disability, to include as a result of exposure to herbicide agents, is denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.