Citation Nr: 18132364
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-32 461
DATE:	September 6, 2018
ORDER
Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is denied.
FINDING OF FACT
The preponderance of the evidence of record shows that the Veteran did not step foot in the Republic of Vietnam while on active duty and was not otherwise exposed to an herbicide while on active duty.
The preponderance of the evidence of record shows that prostate cancer was not present in service or until many years thereafter and it is not related to service or to an incident of service origin.
CONCLUSION OF LAW
The criteria for entitlement to service connection for prostate cancer, to include as due to herbicide exposure, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty with the United States Air Force from October 1959 to November 1962 and from November 1962 to July 1968.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  
The Veteran requested a hearing before a Veterans Law Judge at the Atlanta RO in July of 2016, but subsequently withdrew his pending request via written notice in November of 2016 and via telephone in February of 2017. 
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2).
1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure.
The Veteran filed a service connection claim for prostate cancer based on presumptive exposure to herbicide agents, specifically Agent Orange, in the Republic of Vietnam.  The Veteran reported that, while stationed in Japan, he completed a temporary duty order (TDY) in the Republic of Vietnam during the first couple months of 1963.  The Veteran reported that he spent several weeks in the jungles north of Da Nang Air Base to conduct surveillance, monitor radio transmissions, and identify optimal sites for Morse Code Intercept Operators.  
The Veteran reported that the TDY to Vietnam was initiated by verbal orders from his commander and that written orders were not generated due to the classified nature of the assignment.  See Statement in Support of Claim dated April 2016; Form 9 dated July 2016; and VA Examination - PTSD Questionnaire dated January 2004.
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
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).  In addition, certain chronic diseases, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
To establish service connection a Veteran 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.  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period.  38 C.F.R. § 3.307.  For these Vietnam Veterans, diseases 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. § 1116; 38 C.F.R. §§ 3.307, 3.309.  Prostate cancer is included on the list of diseases associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). 
The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  
Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
As to the herbicide exposure presumption under 38 C.F.R. § 3.309(e), the Board notes that the Veteran has provided detailed and compelling statements regarding a TDY to Vietnam.  The Veteran did not provide any additional evidence beyond his statements.  Despite the RO’s efforts to verify the Veteran’s claim that while on active duty he traveled to Vietnam on a TDY, the official service department records obtained from the National Personnel Records Center (NPRC) do not document his ever traveling to the Republic of Vietnam, providing evidence against this claim.
The Board is aware of the concept outlined by the United States Court of Appeals for Veterans Claims (Court) that “[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The Board also notes that in Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court noted in a footnote that “as a general matter, the absence of evidence is not substantive negative evidence. While the majority agrees that this is not an absolute rule, there must be ‘a proper foundation ... to demonstrate that such silence has a tendency to prove or disprove a relevant fact’.” The Court also referenced Federal Rule of Evidence 803(7) and cited Buczynski for the proposition that “‘the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded.’”
In this case, the Board finds that a proper foundation exists, as the Board finds that the Veteran’s reported in-country Vietnam service is a fact that would have ordinarily been recorded in the Veteran’s personnel records.  In addressing this deficiency, the Veteran asserted in his statements that the TDY was initiated by verbal order alone and therefore unrecorded.  However, it is reasonable to conclude that a TDY to a foreign country for several weeks during a period of war would have ordinarily been recorded in official personnel records.  The Board must also note the fact that the Veteran has provided nothing else to support the claim that he was on some form of secret mission that was done on verbal order alone (an event that, while possible, the Board must find unlikely based on the factual evidence).  The silence in the personnel records as to Vietnam service has a tendency to prove the relevant fact that such reported service did not occur.  As such, the absence of evidence of in-country Vietnam service during the qualifying period in the Veteran’s personnel records may serve as substantive negative evidence. 
Therefore, as to the herbicide exposure presumption under 38 C.F.R. § 3.309(e), the Board finds that it is not applicable to the current claims because the most probative evidence of record shows that the Veteran did not step foot in the Republic of Vietnam during the Vietnam War while on active duty.  See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
As to establishing service connection for prostate cancer based on proof of direct causation (see Stefl, supra), the Board first notes that the Veteran’s post-service medical records from VAMC Atlanta show a current diagnosis of prostate cancer.  
The Board finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disabilities, such as shortness of breath and being thirsty.  See Davidson, supra.  
However, the Veteran has never made any specific claim as to under what circumstances he was exposed to herbicide agents while on active duty.  Instead the Veteran relies solely on the assertion that he is entitled to a presumption of exposure to herbicides due to his presence in Vietnam for a TDY.  No specific claim of exposure was presented or indicated by the available record.  Given this lack of specificity and the negative service personnel records discussed above, the Board finds that the preponderance of the evidence is against any claim by the Veteran that he had actual exposure to an herbicide agent while on active duty.  
In any event, the Board notes that service treatment records are negative for complaints of symptoms of prostate cancer as well as negative for a diagnosis of prostate cancer.  The record also does not show the Veteran being diagnosed with prostate cancer in the first post-service year.  See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Post-service records are negative for a history, complaints, and/or a diagnosis of prostate cancer until several decades after service.
Furthermore, the record is negative for a competent and credible opinion that shows that the current diagnosis for prostate cancer is due to the Veteran’s military service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  The Veteran asserted that doctors at the VAMC Atlanta referenced an association between Agent Orange and the prostate cancer diagnosis; however, the record is still void of an in-service exposure to herbicide or presumption of exposure.  In this regard, the Board finds that given the above record that VA had no obligation to obtain an etiology opinion as to either of the claimed disorders.  See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim).  
Lastly, the Board finds that the Veteran is not competent to provide nexus opinions because he does not have the required medical expertise to provide an answer to these complex medical questions.  See Davidson, supra.  
Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for prostate cancer.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.
In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C. § 5107(b).  However, as the preponderance of the evidence is against the claims, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra.
 
JOHN J CROWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

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