Citation Nr: 1020924 Decision Date: 06/07/10 Archive Date: 06/21/10 DOCKET NO. 03-31 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1964 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in a February 2004 hearing; a transcript of that hearing is of record. The case was previously before the Board in December 2006 and October 2009. The case has again been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran is currently diagnosed with prostate cancer and erectile dysfunction. 2. The Veteran did not service in Republic of Vietnam. 3. The preponderance of the evidence does not demonstrate that the Veteran was exposed to herbicides during his active service. 4. Prostate cancer is not shown to have manifested in service or for many years thereafter, and it has not been shown to be related to any injury or event in service. 5. Erectile dysfunction is not shown to have manifested during service or for many years thereafter, and is not shown to be due to any injury or event in service or a service- connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. The criteria for establishing service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans' Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) defines VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a September 2002 letter, issued prior to the decision on appeal, the Veteran was advised of what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A February 2006 letter reiterated this information. A March 2006 letter informed the Veteran how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations. See Dingess, supra. The claim was last adjudicated in January 2010. As to the VA's duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment and personnel records, private treatment records, internet and newspaper articles, a picture of his son, a July 1966 letter from his friend, information from the Department of Defense, information from the service department, and hearing testimony. The Board notes that the Veteran's case has been remanded twice for further development. In the December 2006 Board remand it was requested that the records from private physicians be obtained and associated with the file; additionally, it was requested that the U.S. Joint Services Records Research Center (JSRRC) attempt to verify the Veteran's reported Agent Orange exposure while stationed in Hawaii. The actions were undertaken and the relevant records and responses have been associated with the record. The October 2009 Board remand was required because the Veteran submitted additional evidence and did not waive RO consideration. The Veteran's claims were readjudicated in January 2010 in compliance with the Board's remand order. Therefore, the Board finds that there was substantial compliance with its remand orders, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Furthermore, the Board notes that the Veteran has not been given a VA examination for his erectile dysfunction or for his prostate cancer. However, as will be discussed more fully below, the preponderance of the competent and probative evidence fails to show that the conditions arose in service, nor does the evidence establish that he was exposed to Agent Orange in service. Furthermore, there is no competent and credible evidence indicating a possible link between his claimed conditions and service. Accordingly, a VA examination is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established 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 (2009). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2009). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2009). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Additionally, a veteran who served in the Republic of Vietnam during the period from January 9, 1962, to 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.A. § 1116(f) (West 2002). When such a veteran develops prostate cancer to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2009). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); see also Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 FR 32395-01 (June 12, 2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be granted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Turning to the evidence, the Veteran's service treatment records do not indicate any complaint of, treatment for or diagnosis of any prostate or erectile problems during service. Nor was prostate cancer shown in service or within a year within his discharge from service. The Veteran submitted private treatment records from March 2000 through February 2002 which show that the Veteran was diagnosed with prostate cancer in March 2000. The Veteran underwent prostate seed implantation in October 2000. The Veteran was also shown to be diagnosed with erectile dysfunction in February 2002, and was prescribed Viagra at that time. On appeal, the Veteran asserts that his prostate cancer is a result of herbicide exposure in Hawaii while he was stationed there in 1965. He asserts that during his period in Hawaii he was exposed to Agent Orange or some other herbicide, which caused his prostate cancer. The Veteran has further asserted that his erectile dysfunction is a result of his prostate cancer. The Veteran's DD Form 214 and other service personnel records do not indicate that the Veteran ever served in the Republic of Vietnam. In fact, the Veteran acknowledges that he did not serve in the Republic of Vietnam. Consequently, the Board finds that the Veteran is not presumed to have been exposed to Agent Orange or any other herbicide during service. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). However, these records do indicate that the Veteran served in Hawaii from January 1965 to December 1965. The Veteran has submitted numerous newspaper and internet articles documenting Agent Orange and other herbicides being found in Hawaii, and specifically on the island of Oahu. The Veteran testified in his February 2004 DRO hearing that he was stationed on the island of Oahu, Hawaii from January 1965 to December 1965. The Board notes that the Veteran specifically indicated that he only served on the island of Oahu when he was stationed in Hawaii in 1965. He testified that he believed he was exposed to Agent Orange and other herbicides. He stated that as part of his training prior to his unit's deployment to the Republic of Vietnam, the Veteran and his unit spent days at a time in the Hawaiian jungle. He indicated at least part of that time was spent on a mountaintop that appeared to have been defoliated. He testified specifically that there did not appear to be any scorch or burn marks that would have indicated a fire caused by artillery fire or other method. The Veteran testified further that he would walk through areas of the jungle which would be "wet." He testified that it was "wet foliage" which would not have been wet due to dew or rain. The Veteran testified that he was stationed near Wheeler Air Force Base at that time. However, the Veteran could not remember any specific area which he walked through or stayed the night at. He did indicate that he was able to see Navy ships doing war exercises in the ocean from his vantage point, but that he could not see Pearl Harbor. During the hearing, the Veteran, with his representative and the DRO, marked out an area of "demarcation" on a map of Oahu that he contends were potential areas where he would have been on exercises at that time. Wheeler Air Force base is specifically marked on the map, as is "Schofield Barracks," which is next to Ka'ala, noted on the map as being 4,030 feet in elevation and the highest point on Oahu. The Veteran submitted a March 2005 article from the Honolulu Advertiser indicating that dioxin, a main compound in Agent Orange, was found on former Oahu Sugar Company land which it leased from the Navy by Pearl Harbor in the 1940's through the 1990's. Pesticides and herbicides were mixed together in the mixing plant which was located on the land. The site was now part of the Navy's Pearl Harbor Naval Complex Superfund site, but was not near any residential areas. Another article indicated that the site contained significant amounts of 2,4,5-tri chlorophenoxycetic acid. The Board notes that 2,4,5-T is one of the herbicides components listed in 38 C.F.R. § 3.307(a)(6) (2009), as a definition of "herbicide agent" used in the Republic of Vietnam. That same article indicates that herbicides may have been found next to Hickam Air Force Base on Oahu, Hawaii, as well. Other articles submitted by the Veteran indicate that Agent Orange was tested in the mid-1960's on the island of Kauai, Hawaii. Another article specifically indicates that the University of Hawaii in Kauai, Hawaii was being sued to remove the drums of Agent Orange it was storing since the 1960's. It indicated that there were four test sites for Agent Orange testing on eastern lands of Kauai, Hawaii. Finally, a February 2002 article indicates that a test known as "Big Tom" was conducted on the island of Oahu from May to June 1965, and involved the spraying of bacillus globigii (BG), which the article noted was a relative of anthrax. It noted that in 1965 BG was thought to be harmless, but it was later discovered that it could cause infections in people with weak immune systems. The Veteran also submitted a fact sheet from the Office of the Assistant Secretary of Defense (Health Affairs) Deployment Health Support Directorate from October 2002. The report came from the Deseret Test Center, and involved Project Shipboard Hazard and Defense (Project SHAD), particularly the operation "Big Tom." It was noted by the Directorate that "Big Tom" was meant to evaluate the feasibility of a biological attack against an island complex. It was noted that a series of aerial line-source trials were conducted with BG, both liquid and dry. The testing was done with two colors, green and yellow, of fluorescent particles of zinc cadmium sulfide. Those tests were noted as being conducted in May and June 1965 on the island of Oahu, Hawaii. The potential health risks associated with BG was noted by the Directorate as being considered harmless to healthy individuals. It was noted that the bacteria used are common in the environment and are uncommon causes of disease. However, the Directorate noted that BG has been associated with acute infections of the ear, meninges (brain lining), urinary tract, lung, heart valve, bloodstream and other body sites, but "always or nearly always in individuals whose health has already been compromised." There was no long- term or late-developing health effects associated with BG, except for any complication as a result of an acute infection. In his statement from September 2009 the Veteran reiterated his assertion that Agent Orange was not the only chemical tested at that time, and that his son was born with a birth defect three years after the testing. He indicated that he marched through pineapple fields, and trained in jungles and mountains. He again asserted that his service exposure to chemicals and herbicides was the cause of his prostate cancer. Upon review of the record, the Board finds that the evidence does not demonstrate that the Veteran was exposed to Agent Orange or other herbicide in service. As noted above, the definition of "herbicide agent" is found in 38 C.F.R. 3.307(a)(6), and includes 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. The only instance noted of 2,4,5-T or any other herbicide agent was noted at the location of the Oahu Sugar Company mixing plant. While the plant was located within the area of Veteran's reported area of demarcation on Oahu, the Veteran specified he was close to Schofield Barracks and Wheeler Air Force Base, which is northwest of the sugar plantation according to the Veteran's Oahu map. Additionally, the Veteran testified that he was exposed to herbicides while he was in the jungle and on a mountaintop, not at a mixing plant located on a sugar plantation. The Veteran never stated, at any time in the record, that he went to a sugar plantation or a mixing plant while doing training exercises in the Hawaiian jungle in 1965. The evidence does not demonstrate that an herbicide agent was found at any other place on Oahu than at the location of the former mixing plant. Additionally, the evidence demonstrates that Agent Orange was found and stored on the island of Kauai, Hawaii. This is an entirely separate island, and the Veteran specifically testified that he only served on the island of Oahu during his Hawaiian service. Likewise, to the extent that herbicide may have been found at Hickam Air Force Base, this base is outside the Veteran's drawn line of demarcation on the Oahu map. Furthermore, the Veteran specifically testified that he was closer to Wheeler Air Force Base, not Hickam Air Force Base. Finally, requests to JSRRC failed to verify the Veteran's claimed exposure to herbicides while in service. The Board is cognizant of the Veteran's assertion that he was exposed to Agent Orange or some other herbicide while in service. To that end, the Board notes that the Veteran has testified that airplanes were constantly flying over his head. However, the Veteran explicitly testified that he never witnessed any actual spraying of any herbicide agent from those airplanes. The Veteran noted that he walked through wet foliage and was on what appeared to be a defoliated mountaintop. However, official sources, particularly in the June 2009 service department response, have been unable to confirm the Veteran's claimed herbicide exposure. Since the Veteran was not in the Republic of Vietnam, herbicide exposure cannot be presumed and the evidence must demonstrate actual exposure to Agent Orange or other herbicide agents. The evidence submitted by the Veteran does not demonstrate any actual exposure in service to any spraying, or presence at any site where Agent Orange or other herbicide agent was present. Accordingly, the Board must conclude that the Veteran was not exposed to an herbicide agent as a result of his military service in Hawaii. See 38 C.F.R. § 3.307(a)(6). The Board notes that the Veteran was present on Oahu during testing of bacterial agents, particular BG, in 1965. The October 2002 Directorate indicated that the island of Oahu and its waterways were sprayed with yellow and green aerial line-sources of BG. The Directorate indicated that both dry and liquid sources were used when spraying BG. Even assuming, for the sake of argument, that the Veteran was exposed to BG, the Directorate notes that it was unlikely to have caused any medical problems in healthy individuals. It was also noted that this bacteria is common in the environment and is an uncommon cause for disease. While it was noted that there were some risks of acute infections, the Board notes that the Veteran's service treatment records are negative for any infections of the prostate or erectile problems. Furthermore, while the Veteran states that the long-term health risks of such exposure are not known, and also asserts that his son's birth defect three years after exposure is proof of health risks, the Board notes that the Directorate specifically concludes that there are no long-term health risks due to exposure. As noted above, the Veteran's prostate cancer and erectile dysfunction were first diagnosed decades after service. To the extent that the Veteran himself believes that there is a medical nexus between his claimed conditions and his military service, it is now well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as if a disability is related to radiation exposure. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In short, prostate cancer and erectile dysfunction were not shown during service or for many years thereafter. Moreover, the preponderance of the evidence is against a finding that the Veteran was exposed to an "herbicide agent" during service. Finally, there is no competent evidence suggesting a link between the Veteran's claimed conditions and service, to include any exposures occurring therein. Accordingly, service connection on a direct or presumptive basis must be denied. Moreover, as the Veteran has not established service connection for prostate cancer, or any condition, service connection for erectile dysfunction on a secondary basis cannot be established. 38 C.F.R. § 3.310. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for prostate cancer is denied. Service connection for erectile dysfunction is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs