Citation Nr: 21040975 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-32 243 DATE: July 7, 2021 ORDER Entitlement to service connection for prostate cancer to include as due to herbicide exposure, is denied. Entitlement to service connection for diabetes mellitus Type II (diabetes) to include as to herbicide exposure, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's prostate cancer began during active duty service, manifested to a compensable degree within the applicable one-year presumptive period following discharge from service, or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure. 2. The preponderance of the evidence is against finding that the Veteran's diabetes began during active duty service, manifested to a compensable degree within the applicable one-year presumptive period following discharge from service, or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for DIABETES have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1968 to July 1970 with service in the Republic of Korea from May 1969 July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In April 2018, the Board remanded this matter for additional development and consideration. The issue has now been returned to the Board for further appellate consideration. As is further discussed below, the Board finds that there has been substantial compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran is seeking service connection from prostate cancer and DIABETES, that he contends is due to his military service. Specifically, he contends that his prostate cancer and diabetes are the result of exposure to Agent Orange while stationed at Camp Saint Barbara in the Republic of Korea. The Veteran further contends that part of his duties while deployed during field exercises was to bring chow to different gun emplacements close to the demilitarized zone (DMZ). The Veteran reports that he was close enough to the DMZ to hear North Korean loudspeakers. The Veteran has submitted photographs of defoliation in the Republic of Korea dated 1970. See September 2012 VA Form 21-526 Fully Developed Claim; February 2014 Notice of Disagreement; September 2014 VA Form 9; October 2014 Statement of Accredited Representative; May 2021 Statement in Support of Claim,Veteran Submitted Photographs. Applicable Laws and Regulations In general, in order to prevail on the issue of service connection the evidence 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. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 for a chronic disease as enumerated for VA compensation purposes, to include hypertension and arthritis, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself 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; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to herbicide agents, to include lung cancer. Exposure to herbicides is presumed for veterans who served in the Republic of Vietnam (RVN) during the Vietnam Era or who served between September 1, 1967, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during this period. See 38 U.S.C. § 1116, 1116B; 38 C.F.R. § 3.307(a)(6), 3.309(e). Claimants who are not entitled to a presumption of exposure to herbicides may establish herbicide exposure through the submission of probative evidence. See Gray v. McDonald, 27 Vet. App. 313 (2015). Factual Background The Veteran's personnel records indicate that, from May 1969 July 1970, the Veteran was stationed with C Battery, 6th Battalion 12th Artillery at Camp St. Barbara, in the Republic of Korea. See Military Personnel Records. The Veteran's service treatment records are silent with respect to complaints, treatments, or diagnoses suggestive of prostate cancer and/or diabetes. See Medical Service Treatment Records. In September 2012, the Veteran was treated with radiation for prostate cancer. See September 2012 Non-Government Medical Records. In September 2012, the Veteran submitted a diagnosis of diabetes from his private treating physician Dr. T. S. See September 2012 Non-Government Treatment Records. In October 2013, the Joint Services Records Research Center (JSRRC) stated that, although the Veteran served in the Republic of Korea during the presumptive herbicide exposure period from April 1968 to August 1971, he was not stationed with a unit alongside the Korean DMZ. See October 2013 VA Memo. In April 2021, the JSRRC stated that, after professional research they have concluded that there is no evidence to support the Veteran underwent herbicide exposure during service in the Republic of Korea. See April 2021 Records Research Response; April 2021 VA Memo. Presumptive Service Connection As discussed above, the Veteran has been diagnosed with prostate cancer and diabetes. See September 2012 Non-Government Medical Records; September 2012 Non-Government Treatment Records. Therefore, resolution of this appeal turns on whether there is the required attribution of his prostate cancer and/or diabetes to his military service, including to his claimed herbicide exposure. 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. The evidence of record shows that the Veteran was not diagnosed with prostate cancer until September 2012, approximately 42 years after his separation from service and outside of the applicable presumptive period. See September 2012 Non-Government Medical Records; Service Personnel Records. 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). Additionally, 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. The evidence of record shows that the Veteran was not diagnosed with DIABETES until September 2012, approximately 42 years after his separation from service and outside of the applicable presumptive period. See September 2012 Non-Government Treatment Records; Service Personnel Records. 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 during service. As previously discussed, service connection may be granted on a presumptive basis for prostate cancer and diabetes if a veteran was exposed to herbicides. See 38. C.F.R. § 3.309(e). As noted above, exposure to herbicides is presumed for veterans who served in the RVN during the Vietnam Era or who served between September 1, 1967, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during this period. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.307(a)(6). The Veteran did not serve in the RVN, and though the Veteran did serve in Korea from May 1969 to July 1970, his unit C Battery, 6th Battalion 12th Artillery is not a unit determined by the DoD to have operated near the Korean DMZ in which herbicides are known to have been used. See September 2012 VA Correspondence; Military Personnel Records; October 2013 VA Memo. As such, the Veteran is not entitled to a presumption of herbicide exposure. Furthermore, the JSRRC has stated that, the Veteran's unit C Battery, 6th Battalion 12th Artillery was not a unit that operated or rotated near the Korean DMZ. See October 2013 VA Memo. Furthermore, the JSRRC after comprehensive research on the Veteran's behalf was unable to locate any documentation to support the Veteran's contention he was exposed to herbicides during his service in South Korea. Nevertheless, claimants who are not entitled to a presumption of exposure to herbicides may establish herbicide exposure through the submission of probative evidence. See Gray v. McDonald, supra. The Veteran has asserted that he was exposed to herbicides while stationed in the Republic of Korea. Specifically, the Veteran contends that he was exposed to Agent Orange while stationed at Camp Saint Barbara in the Republic of Korea, as his duties while deployed during field exercises was to bring chow to different gun emplacements close to the demilitarized zone (DMZ). The Veteran reports that he was close enough to the DMZ to hear North Korean loudspeakers. The Veteran has submitted photographs of defoliation in the Republic of Korea dated 1970. See September 2012 VA Form 21-526 Fully Developed Claim; February 2014 Notice of Disagreement; September 2014 VA Form 9; October 2014 Statement of Accredited Representative; May 2021 Statement in Support of Claim,Veteran Submitted Photographs. However, the Veteran's Military personnel records (MPRs) are silent as to any training or field maneuvers conducted while he was stationed in South Korea, and as discussed above, there is no documentation of any duties performed by members of the Veteran's unit along the DMZ. See MPRs; October 2013 VA Memo; April 2021 VA Memo. Although the Veteran asserts that he frequently traveled to the DMZ to provide chow, could hear North Korean loudspeakers, and provided VA with photographs depicting defoliation in the Republic of Korea, 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). Additionally, the Veteran did not provide any additional statements (no buddy statements or statements from other members of his unit to verify service in Korean DMZ), other than the lay statements previously mentioned. Thus, without more specific information from the Veteran (i.e. where he served along the Korean DMZ or what geographic region of the DMZ he delivered chow in), in conjunction with the negative findings of the JSRRC, the Board cannot verify the Veteran's service in the Korean DMZ. Thus, in regards to presumptive exposure of herbicide agents, the evidence does not show, nor does the Veteran contend that he served in one of the units DoD has identified as assigned to the Korean DMZ from May 1969 July 1970; nor do the Veteran's lay statements alone establish that he served in the Korean DMZ. Therefore, exposure to herbicide agents during his service in Korea cannot be presumed. Thus, in regard to actual exposure of herbicide agents, other than the Veteran's lay statements, the evidence of record does not establish actual exposure. Without corroborating evidence, the Veteran's lay statements alone are not competent evidence to establish actual exposure because he has not submitted any evidence that he possesses the expertise necessary to opine on the technical matter of herbicide exposure. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (explaining that "[a]s a general matter, in order for any testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration," which includes possessing personal knowledge of the disputed fact and the expertise necessary to testify as to that fact). As such, the Board cannot find that the Veteran was exposed to herbicides while stationed in South Korea. See April 2021 VA Memo. For the reasons set forth above, the Board cannot find that the Veteran was exposed to herbicides during active duty service, in the Republic of Korea. As such, the Board finds that service connection on a presumptive basis, due to herbicide exposure, is not warranted. 38 U.S.C. §§ 1116, 1116B; 38 C.F.R. § 3.307(a)(6). Though the Veteran cannot be granted service connection for his prostate cancer and diabetes on a presumptive basis, service connection may still be granted on a direct basis. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Direct Service Connection As noted above, the Veteran has a current diagnosis of prostate cancer and diabetes, and therefore the first element of service connection on a direct basis has been met. Regarding the second element of service connection, the Board finds there is no competent evidence of an in-service occurrence, injury, or disease. The Veteran's service treatment records are silent with respect to complaints, treatments, or diagnoses suggestive of prostate cancer or diabetes. See Medical-STR. Indeed, the Veteran's sole assertion regarding an in-service event is that he was exposed to herbicides while serving in the Republic of Korea. As the Board is unable to find that the Veteran was exposed to herbicides, and as the evidence is otherwise silent with respect to an in-service event, the Board finds that the second element of direct service connection has not been met. Nevertheless, even if the Board were to ignore the lack of credible evidence supporting an in-service event, there is no competent evidence suggesting a medical nexus between the Veteran's prostate cancer and 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 due to herbicide exposure. Given the complete lack of evidence of a medical nexus between the Veteran's prostate cancer and diabetes and military service, the Board finds that the third element of service connection has not been met. The Board notes that no VA examination has been conducted, nor are any warranted in conjunction with this claim. 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, as discussed above, there currently is no credible evidence of an in-service event, and VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 46 (2010). 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 prostate cancer and DIABETES, as due to herbicide exposure. 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. See Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.