Citation Nr: 21032260 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-58 658 DATE: May 26, 2021 ORDER Entitlement to service connection for prostate cancer is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. FINDING OF FACT The Veteran's prostate cancer was not clinically evident during his active service or for many years thereafter and the most probative evidence establishes that the Veteran's current prostate cancer is not causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1974 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, inter alia, denied service connection for prostate cancer and hepatitis C. In July 2020, the Veteran testified at a telehearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran's Notice of Disagreement (NOD) also included the issues of entitlement to service connection for traumatic brain injury, to include chronic residuals claimed as blurred vision and headaches, and a left hand index finger disability. These issues were included in the October 2016 Statement of the Case (SOC). As the Veteran's VA Form 9 indicated that he wished to limit his appeal to the issues of entitlement to service connection for prostate cancer and hepatitis C, the issues of entitlement to service connection for traumatic brain injury, to include chronic residuals claimed of blurred vision and headaches, and a left hand index finger disability are not before the Board on appeal. The Board also notes that before the appeal was certified and transferred to the Board, the Veteran submitted additional medical records which were associated with the Veteran's electronic claims file. Since these records were submitted by the Veteran and because his VA Form 9 was submitted after February 2, 2013, waiver of AOJ consideration is not necessary. See 38 U.S.C. § 7105(e) (providing that waiver of initial AOJ review of evidence submitted by the claimant or his representative to the AOJ or the Board is presumed in cases where the substantive appeal was filed after February 2, 2013.). 1. Entitlement to service connection for prostate cancer is denied. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including malignant tumors, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). VA regulations also provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A veteran who, during active 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 C.F.R. § 3.307(a). In addition, an individual who performed service in the Air Force or Air Force Reserve under circumstances in which he or she regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). "Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he developed prostate cancer as a result of herbicide exposure. Specifically, he contends that he was exposed to Agent Orange while handling equipment and weapons returning from Vietnam while serving at Fort Campbell. See July 2020 Transcript of Hearing, pages 5-6. After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claim of service connection for prostate cancer. The Veteran's service treatment records (STRs), including his March 1977 separation examination, are negative for complaints, observations, or treatment for prostate cancer. Post-service clinical records indicate a diagnosis of prostate cancer. See private treatment records received in December 2012 and November 2016. As noted above, VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include prostate cancer. See 38 C.F.R. § 3.309(e). In this case, however, the Board concludes that the record does not establish that the Veteran was exposed to Agent Orange in service, nor is he entitled to the legal presumption of exposure to an herbicide agent. Service personnel records contain no indication of Agent Orange exposure, duty or visitation in the Republic of Vietnam or in or near the Korean Demilitarized Zone (DMZ), or regular and repeated contact with C-123 aircraft. Notably, at the July 2020 Board hearing, the Veteran indicated that he handled equipment and weapons returning from Vietnam and believed he was exposed to Agent Orange through that contact. Although the Veteran is competent to relate his experiences in service, he is not competent to identify Agent Orange or herbicide agents because such determination requires education, training or experience that the Veteran is not shown to possess. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event occurred during service). He has not contended that he had service on the land mass of Vietnam, in its inland waterways, or within the 12 nautical mile territorial sea of Vietnam during the Vietnam era, nor has he alleged regular and repeated contact with C-123 aircraft. Based on the evidence currently of record, therefore, the Board finds that in-service exposure to an herbicide agent, such as Agent Orange, has not been established, nor may it be presumed. 38C.F.R. § 3.309(e). The Veteran's claim fails for lack of an in-service disease or injury. Prostate cancer was not "noted" during service, and the Veteran does not assert onset during service. There is no evidence that symptoms of the Veteran's current disability manifested in service or to a compensable degree within a year of his separation from service. A preponderance of the evidence is also against finding that the Veteran was actually exposed to herbicides. In the absence of an in-service disease or injury, a nexus between the Veteran's current disability and service is necessarily also lacking. Moreover, no medical professional has suggested that the Veteran's prostate cancer is related to his military service, and neither the Veteran nor his representative has presented, identified, or alluded to the existence of any such medical evidence or opinion. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). The Board acknowledges the Veteran's assertion that his prostate cancer is related to military service. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of prostate cancer is a medical question not subject to lay expertise. See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the Veteran's prostate cancer is a medical question requiring medical training, expertise and experience. Again, the Veteran has alleged no continuity of symptomatology since service and no in-service symptoms indicative of prostate cancer. In summary, the Board finds that the most probative evidence shows that prostate cancer did not manifest in service or for many years thereafter. The record also does not contain any indication that the Veteran's prostate cancer is causally related to his active service or any incident therein. For these reasons, the preponderance of the evidence is against the claim of service connection for prostate cancer. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. A March 1975 entry in the Veteran's STRs noted that the Veteran underwent repair of the radial collateral ligament, proximal interphalangeal (PIP) joint of the left long finger. A July 1975 hospital record noted that the Veteran sustained multiple traumas in an automobile accident while riding in a taxi cab. A September 1975 entry noted that the Veteran presented with complaints of chills, headaches, chest pain, and vertigo. The impression was viral syndrome and tension headaches. The Veteran's March 1977 separation examination noted a diagnosis of gonorrhea in 1974. At the July 2020 Board hearing, noted above, the Veteran testified that his only risk factors for hepatitis C were a sexually transmitted disease diagnosed during active duty and an in-service surgery. He also testified that he was diagnosed with a viral syndrome during service, which could have been hepatitis C, since the virus was not identified. He further testified that he was diagnosed with hepatitis C in 1985, only 8 years after service. See July 2020 Transcript of Hearing, pages 3-5, 8. The Board notes that the Veteran has not been afforded a VA examination in connection with his claim for hepatitis C. The VA has a duty to assist the Veteran in obtaining a medical examination or opinion in certain circumstances. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A VA examination must be obtained in a disability compensation claim if there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; establishment of an in-service event, injury, or disease; an indication that the current disability may be associated with an in-service event; and insufficient competent medical evidence to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81-6 (2006). Because the Board cannot make a fully informed decision on the issue of the Veteran's hepatitis C without an examination, the Board concludes that a VA examination is warranted. Accordingly, the matter is REMANDED for the following action: 1. Obtain a VA examination addressing the nature and etiology of the Veteran's hepatitis C. Access to the Veteran's electronic VA claims file must be made available to the examiner for review in connection with the examination. After examination of the Veteran and review of the record, the examiner should provide an opinion, with supporting rationale, as to the following: (Continued on the next page) Is it at least as likely as not that the Veteran's hepatitis C had its inception during his period of active service, was manifest to a compensable degree within one year of separation, or is otherwise causally related to an in-service disease or injury? A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should consider the relevant evidence of record, to include the Veteran's STRs (noting an in-service finger surgery, diagnosis of gonorrhea, an automobile accident with multiple traumas, and treatment for a viral syndrome) and post-service clinical records, as well as his July 2020 hearing testimony indicating that his only risk factors for hepatitis C were a sexually transmitted disease diagnosed during active duty and an in-service surgery. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.