Citation Nr: 18160430
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 18-43 663
DATE:
ORDER
Entitlement to service connection for a heart condition, claimed as ischemic heart disease, to include as due to herbicide exposure is denied.
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, to include as due to herbicide exposure is denied.
Entitlement to service connection for a chronic urinary tract condition is denied.
FINDINGS OF FACT
1.  There is no credible evidence that the Veteran was exposed to herbicides during his military service at Fort Gordon.
2. The preponderance of the competent and credible evidence indicates that the Veteran's current heart condition began many years after his active military service and was not caused by any incident of service.
3. The preponderance of the competent and credible evidence indicates that the Veteran's current prostate cancer began many years after his active military service and was not caused by any incident of service.
4. The preponderance of the competent and credible evidence indicates that the Veteran's current diabetes mellitus type II began many years after his active military service and was not caused by any incident of service.
5. The preponderance of the competent and credible evidence indicates that the Veteran's current urinary tract condition began many years after his active military service and was not caused by any incident of service.
CONCLUSIONS OF LAW
1.  The criteria for service connection for a heart condition, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
2. The criteria for service connection for prostate cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
3. The criteria for service connection for diabetes mellitus type II, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
4. The criteria for service connection for a chronic urinary tract condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from January 1967 to January 1970.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
Entitlement to service connection for a heart condition, prostate cancer, a chronic urinary tract condition, and diabetes-mellitus type II
A. Herbicide Exposure
The Veteran contends that his heart condition, prostate cancer, and diabetes mellitus type II, were caused by his herbicide exposure during active service. The Veteran has not contended that his urinary tract condition is related to his claimed herbicide exposure.
The Veteran contends that he was exposed to Agent Orange while stationed at Fort Gordon, Georgia, in 1967. Specifically, the Veteran has alleged that he participated in an exercise at the end of his training at Fort Gordon; indicating that the exercise took place for several days in a remote undeveloped area in Fort Gordon. The Veteran further alleges that he recalls a distinct chemical smell during the training. See Court Documents – General, submitted February 17, 2017. 
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability, 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. §1116(a); 38 C.F.R. § 3.309(e). The term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). The Board notes that the Veteran’s claimed conditions of ischemic heart disease, prostate cancer, and diabetes mellitus type II are presumptive diseases under 38 C.F.R. § 3.309(e).
The Veteran has not alleged and the record does not suggest that he served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Therefore, exposure to herbicides is not presumed and must be affirmatively established.
A review of the Department of Defense’s (DODs) listing of herbicide use and test sites in the United States shows that herbicides were tested at Fort Gordon, Georgia, where the Veteran was stationed during his military service. Government records show that Fort Gordon was a testing site for herbicides, including Agent Orange and Agent Blue, between July 15, 1967 and July 17, 1967. See The History of the US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides.
The Veteran’s personnel records confirm that he was stationed at Fort Gordon from April 1967 to July 1967. See Military Personnel Records, submitted November 19, 2015. However, the Veteran’s personnel records indicate that he was en route to Germany on July 7, 1967. Id. Accordingly, the Veteran’s active service at Fort Gordon did not coincide with the active testing done at that location, as the Veteran was stationed there prior to the herbicide testing which occurred on July 15-17, 1967. Therefore, because evidence shows that the Veteran was not present during testing at Fort Gordon, this presumption does not apply.
The failure to meet the criteria for a presumption does not, however, preclude a Veteran from establishing entitlement to service connection on a different basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The Veteran could show that his current claimed disabilities are otherwise related to service on a direct basis.
B. Direct Service Connection
On a direct service connection basis, the Veteran’s post-service treatment records indicate that he has current diagnoses of prostate cancer, diabetes mellitus type II, a urinary tract condition, and a heart condition. The dispositive issue for direct service connection in this case is whether the Veteran's diagnosed conditions had their onset in service or the one-year presumptive period, or are otherwise related to his military service.
The Veteran's service treatment records (STRs) are silent as to signs or symptoms of a heart condition, prostate cancer, a chronic urinary tract condition, or diabetes-mellitus type II. 
Additionally, the evidence of record indicates that the Veteran’s conditions were not diagnosed until many years after his separation from service in January 1970. A Disability Benefits Questionnaire (DBQ) completed by the Veteran’s private physician indicates that he was diagnosed with diabetes mellitus type II in 2008. See Diabetes Mellitus DBQ, submitted June 16, 2015. A separate DBQ indicates that the Veteran was diagnosed with prostate cancer in February 2015. See Prostate Cancer DBQ, submitted June 16, 2015. As to the Veteran’s urinary tract condition, the record indicates that the Veteran was diagnosed with benign prostatic hyperplasia in 1993 and a urinary tract infection in 2010. See Urinary Tract DBQ, submitted June 16, 2015. The earliest symptomatology of the Veteran’s heart condition, was a March 2010 private treatment record, noting the Veteran to have a systolic heart murmur. See Medical Treatment Record – Non-Government Facility, dated March 20, 2010.
Moreover, there is no evidence of chronicity in symptoms of any of the Veteran’s conditions since service, to warrant service connection under 38 C.F.R. § 3.303(b).
Although the Veteran contends that his current claimed conditions are due to service, he is not competent to make this conclusion. While lay persons are competent to provide opinions on some medical issues, the issue of whether his prostate cancer, diabetes, urinary tract condition, or heart condition are related to service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Board accords significantly more weight to the medical evidence than to the Veteran's lay assertions. 
In summary, the preponderance of the evidence of record indicates that the Veteran's claimed conditions were not shown in service or for many years thereafter, and are not related to service. Accordingly, service connection for prostate cancer, diabetes mellitus type II, a heart condition, and a urinary tract condition must be denied.
(Continued on the next page)
 
In reaching the above conclusions, 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. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Marsh II, Associate Counsel 

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