Citation Nr: 0515161 Decision Date: 06/03/05 Archive Date: 06/15/05 DOCKET NO. 02 14-165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for prostate cancer due to exposure to herbicide agents (i.e., Agent Orange). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. A. Mishalanie, Associate Counsel INTRODUCTION The veteran had active military service from March 1960 to March 1963. This case comes to the Board of Veterans' Appeals (Board) from December 2001 and February 2002 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the veteran's claim for service connection for prostate cancer due to exposure to herbicide agents (i.e., Agent Orange). He filed a timely appeal. In February 2004, after advancing the case on the docket, the Board remanded the claim to the RO for further development and consideration. Specifically, the Board directed the RO to obtain a complete copy of the veteran's personnel file, to request a medical opinion from one of his treating physicians, and to ensure compliance with the Veterans Claims Assistance Act (VCAA). Upon completion of these directives, in January 2005, the Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) continuing the denial of the claim and returned the case to the Board for further appellate review. In March 2004, the veteran, through his representative, waived his right to initial consideration of additional evidence by the agency of original jurisdiction (AOJ) (i.e., the RO). FINDING OF FACT There is no persuasive evidence suggesting the veteran's prostate cancer either originated in service or is otherwise causally related to his military service, including to exposure to herbicides such as the dioxin in Agent Orange. CONCLUSION OF LAW The veteran's prostate cancer was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.159, 3.303, 3.307, 3.309, 3.385 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002), became effective on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA and implementing regulations eliminated the requirement of submitting a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA and implementing regulations also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a) (West 2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186- 87 (2002). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Here, a March 2002 letter provided the veteran with notice of the evidence needed to support his claim that was not on record at the time of the letter, the evidence VA would assist him in obtaining, and the evidence it was expected that he would provide. That letter satisfied the first three notice requirements outlined in 38 C.F.R. § 3.159(b)(1) and Pelegrini II, but it did not include the specific language of the "fourth element" outlined above. In a precedent opinion, VA's General Counsel addressed the issue of the "fourth element" of the VCAA notice as outlined by the Court in Pelegrini I. See VAOPGCPREC 1-04 (Feb. 24, 2004). The "fourth element" language in Pelegrini I is substantially identical to that of Pelegrini II, as mentioned, requiring VA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) to request the claimant provide any evidence in his or her possession that pertains to the claim. Id. The General Counsel's opinion held that this language was obiter dictum and not binding on VA. See VAOPGCPREC 1-04 (Feb. 24, 2004); see also Pelegrini II, 18 Vet. App. 112, 130 (2004) (Ivers, J., dissenting). In addition, the General Counsel's opinion stated VA may make a determination as to whether the absence of such a generalized request, as outlined under § 3.159(b)(1), is harmful or prejudicial to the claimant. For example, where the claimant is asked to provide any evidence that would substantiate his or her claim, a more generalized request in many cases would be superfluous. Id. The Board is bound by the precedent opinions of VA's General Counsel, as the chief legal officer for the Department. 38 U.S.C.A. § 7104(c) (West 2002). Here, although the March 2002 letter did not contain the precise language specified in 38 C.F.R. § 3.159(b)(1), the Board finds that the veteran was otherwise fully notified of the need to give VA any evidence pertaining to his claim. Bare in mind he more recently received an additional letter in February 2004, as a result of the Board's February 2004 remand, specifically to comply with the VCAA. And this letter included mention of the "fourth element" in question, as the Board expressly had directed in its remand. The letter requested that he provide or identify any evidence supporting his claim and specifically outlined the necessary evidence. So a more generalized request with the precise language outlined in § 3.159(b)(1) would be redundant. The absence of such a request is unlikely to prejudice him, and thus, the Board finds this to be harmless error. VAOPGCPREC 1-04 (Feb. 24, 2004); see also Mayfield v. Nicholson, 2005 WL 957317, at *17 (Vet. App. Apr. 14, 2005) (Requesting additional evidence supportive of the claim rather than evidence that pertains does not have the natural effect of producing prejudice. The burden is on the claimant in such a situation to show that prejudice actually exists). Regarding the timing of the notice, the March 2002 and February 2004 VCAA letters were issued after the initial RO adjudications in December 2001 and February 2002. Therefore, they did not comply with the requirement that notice must precede the initial RO adjudication. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini II, 18 Vet. App. at 120. However, the more recent February 2004 letter provided the veteran with ample opportunity to respond before VA readjudicated his claim and issued the SSOC in January 2005 addressing any additional evidence that had been received since the December 2001 and February 2002 decisions in question and the August 2002 statement of the case (SOC). In response to the VCAA letter, the veteran submitted additional medical evidence outlining his treatment for prostate cancer. He also provided authorizations for VA to obtain medical records from private treatment sources. Although the RO did not attempt to obtain these private treatment records, the Board finds that this was not prejudicial error. As will be explained later in this decision, it is conceded that he has prostate cancer, so obtaining additional treatment records to prove this is unnecessary. The only issue currently in dispute is whether he was, in fact, exposed to herbicides during service - as he alleges. Consequently, since his current treatment records cannot provide evidence relating to this purported exposure in service, many years ago, a remand to obtain these records would only unnecessarily delay a decision in this appeal. In addition, the veteran and his representative have not indicated he has any additional relevant evidence to submit or which needs to be obtained that pertains to the purported exposure to herbicide agents. Under these circumstances, and given the Board's February 2004 remand for VCAA compliance, the Board finds that he was afforded "a meaningful opportunity to participate effectively in the processing of his claim by VA" and thus "essentially cured the error in the timing of notice". Mayfield v. Nicholson, 19 Vet. App. at No. 02-1077, slip op. at 32, 2005 WL957317, at *22 (Apr. 14, 2005) (holding that section 5103(a) notice provided after initial RO decision can "essentially cure the error in the timing of notice" so as to "afford a claimant a meaningful opportunity to participate effectively in the processing of ... claim by VA") (citing Pelegrini, 18 Vet. App. at 122-24). Furthermore, the February 2004 letter informed the veteran that he could take up to one year to respond without jeopardizing the potential effective date for compensation - should, in fact, his claim be granted. So this was consistent with the one-year statutory period provided in 38 U.S.C.A. § 5301(a). In this case, the RO obtained the veteran's service medical records (SMRs), and certain private medical records were also submitted. Drs. D.P., T.M., and F.M. provided information and medical opinions relating to his prostate cancer and its etiology. Over 1 year has passed since the February 2004 VCAA letter, and he has not indicated he has any additional relevant information or evidence to submit, or which needs to be obtained that relates to his alleged herbicide exposure. Furthermore, although offered, he declined his opportunity for a hearing to provide oral testimony in support of the claim. 38 C.F.R. § 20.700(a) (2004). In sum, the record reflects that the facts pertinent to this claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Accordingly, the Board will address the merits of the claim. Factual Background The veteran's SMRs are negative for any indication of prostate cancer. The veteran's personnel records indicate he was at Fort Jackson from March 1960 to June 1960, at Ft. Leonard Wood from June 1960 to August 1960, and at Ft. Bragg from August 1960 to March 1963. His DD Form 214 indicates he was a Construction Machine Operator for Company (Co) B, 92nd Engineer (Engr) Battalion (Bn). He was assigned special duty from April 1962 to October 1962 as a full-time lifeguard. Private medical records indicate the veteran was diagnosed with prostate cancer in April 2001. He underwent a prostatectomy in June 2001. He has had difficulties with incontinence and has had several surgeries to correct the problem. In August 2001, in support of his claim for service connection, the veteran stated that he worked with, moved, and transported herbicide agents at Ft. Bragg (see VA Form 21-4138 dated August 2001). In a December 2001 letter, he further stated that he was required to load transport planes at Pope Air Force Base (AFB) with supplies to be delivered to Vietnam. He also said that he was ordered to Seymour Johnson AFB to remove the remains of a plane that had crashed returning from Vietnam. A December 2001 letter from Dr. F.M. states that "[the veteran] being exposed to wartime herbicides makes him as prone to the same side effects as anyone else that was exposed to the herbicides, state side or abroad." A January 2002 letter from Dr. D.P. reiterates this opinion. VA sent Drs. F.M. and D.P. letters asking them to provide additional information relating to the veteran's exposure to herbicides during service. In April 2002, Dr. F.M. responded, stating that the veteran had told him that he was exposed and he did not have any first-hand knowledge of such exposure. In March 2004, Dr. D.P. responded that he also did not have any first-hand knowledge of exposure. A December 2003 letter from Dr. D.P. to Drs. F.M. and T.M. indicates the veteran had a 15-year history of smoking. He had quit smoking in 1976. He also had a history of a father with prostate cancer. A February 2005 letter from Dr. D.P. outlines the veteran's history of prostate cancer and explains the difficulty he has had with incontinence. He has had 5 surgeries to try to correct the problem. Governing Statutes and Regulations Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2004). This requires a finding that there is a current disability that has a relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) and Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). However, it need not be shown that the disability was present or diagnosed during service but only that there is a nexus between the current condition and military service, even if first diagnosed after service, on the basis of all the evidence, including pertinent service medical records. This can be shown by establishing that the disability resulted from personal injury or disease incurred in the line of duty. 38 C.F.R. § 3.303(d) (2004); Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). In certain circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309 (e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to a herbicide agent (i.e., Agent Orange). 38 C.F.R. § 3.307(a). The diseases listed under §3.309(e), which include prostate cancer, will be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. In order to be service-connected under 38 C.F.R. § 3.309(e), the listed diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that choracne of other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In January 2003, the Assistant Secretary of Defense for the United States Department of Defense (DOD) provided VA with information relating to the use of herbicide agents outside of Vietnam. DOD provided a list of known herbicide use and possible exposure after reviewing records from the United States Army Center for Unit Records Research (USACURR), and obtaining information from the U.S. Air Force and Navy. The veteran's duty assignments, including Ft. Bragg, Seymour Johnson AFB, and Pope AFB, are not included on this list. When, after considering all information and lay and medical evidence of record, there is an approximate balance of positive and negative evidence as to any material issue, VA shall give the claimant the benefit of the doubt. 38 U.S.C.A. § 5107(b) (West 2002). See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) ("the VCAA simply restated what existed in section 5107 regarding the benefit-of-the-doubt doctrine"). Legal Analysis The medical evidence of record confirms the veteran has been diagnosed with prostate cancer, and he has had to undergo several surgeries as a consequence. He contends that his prostate cancer is a result of having been exposed to herbicides during his service in the military. He explains that he had to load transport planes bound for Vietnam and that he was involved with cleaning up a plane at Seymour Johnson AFB. The record, however, is completely unremarkable for any incidents of exposure and the information provided by DOD does not indicate any incidents of exposure at Ft. Bragg or at Seymour Johnson AFB. Because he did not serve in the Republic of Vietnam, and because there are no documented reports of exposure to herbicide agents at his duty assignments (outside of Vietnam), he is not entitled to presumptive service connection. The veteran, however, may still be entitled to service connection on a direct basis if he can establish a nexus or link between his prostate cancer and his military service. Cf. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("Proof of direct service connection thus entails proof that exposure during service caused the malady that appears many years later."). To do so, though, he has the burden of proving he was exposed to herbicide agents during his service. Unfortunately, he has failed to provide such evidence. The veteran's SMRs are negative for any report of exposure or complaint of contamination. Also, he has not described any specific incidents involving direct exposure - whether due to spraying or to leaking containers. His personnel records do not show that he handled or was exposed to any herbicide agents. Medical opinions obtained from the veteran's treating physicians admittedly were based on his own self-reported history of herbicide exposure, without any objective confirmation of such exposure. See, e.g., Reonal v. Brown, 5 Vet. App. 458 (1993) (a diagnosis is only as good and credible as the history on which it is predicated). These opinions linking his prostate cancer to herbicide exposure are pure conjecture without actual evidence of exposure. Furthermore, his medical history includes other possible causes for his cancer than herbicide exposure - a 15-year history of smoking and, more importantly, a father with prostate cancer, so heredity. For these reasons, the claim for service connection for prostate cancer due to herbicide exposure must be denied because the preponderance of the evidence is unfavorable, meaning the benefit-of-the-doubt doctrine does not apply. 38 C.F.R. § 3.102 (2004); see also Alemany v. Brown, 9 Vet. App. at 519; Gilbert v. Derwinski, 1 Vet. App. at 57. ORDER The claim for service connection for prostate cancer due to herbicide exposure is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs