Citation Nr: 0902385 Decision Date: 01/23/09 Archive Date: 01/29/09 DOCKET NO. 06-07 298A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicides. 2. Entitlement to service connection for removal of the parathyroid gland, claimed as due to exposure to herbicides or solvents. 3. Entitlement to service connection for diverticulosis, claimed as due to exposure to herbicides or solvents. 4. Entitlement to service connection for kidney stones. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The veteran had active service from October 1970 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. As the RO noted in a July 2008 deferred rating decision, the veteran has a pending claim seeking service connection for diabetes mellitus type 2. This claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's travel route to Korat Royal Thai Air Force Base (RTAFB) caused him to land at Tan Son Nhut, Republic of South Vietnam, and he is therefore presumed to have been exposed to herbicides. 2. The medical evidence shows that the veteran's prostate cancer is compensably disabling. 3. The veteran's removal of the parathyroid gland, diverticulosis, and kidney stones were not caused by his period of military service. CONCLUSIONS OF LAW 1. The veteran's prostate cancer may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 2. The veteran's removal of the parathyroid gland was not incurred or aggravated in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008). 3. The veteran's diverticulosis was not incurred or aggravated in service and is not proximately due to or the result of a service connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2008). 4. The veteran's kidney stones were not incurred or aggravated in service and are not proximately due to or the result of a service connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by two letters dated in October 2004, the RO advised the veteran of the evidence needed to substantiate his claims and explained what evidence VA was obligated to obtain or to assist the veteran in obtaining and what information or evidence the veteran was responsible for providing. Thus, the Board finds that the RO has provided all notice required by the VCAA. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board observes that the RO issued a VCAA notice letter prior to initially adjudicating his claims, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). The Board notes that in a March 2008 letter, the veteran was informed that disability ratings and effective dates would be assigned if his claims were granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Notice errors, such as inadequate content or timing, are presumed prejudicial unless VA shows that the errors did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the veteran; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F. 3d 881 (2007). Since providing the veteran additional VCAA notice in March 2008, the RO readjudicated the veteran's claims in the July 2008 supplemental statement of the case (SSOC). The Federal Circuit Court has held that a SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). If there arguably is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). That is to say, if there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to the veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. Sanders v. Nicholson, 487 F.3d 881 (2007), petition for cert. filed, No. 07-1209 (S. Ct. Mar. 21, 2008). With respect to the duty to assist, the RO has secured the veteran's service treatment records (STRs), service personnel records, VA medical records, private medical records, and VA examinations. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board notes that an etiological opinion has not been obtained for the veteran's prostate cancer. However, a remand for an examination and/or opinion is not necessary to decide the claim because it is being granted. See 38 C.F.R. § 3.159 (c)(4) (2008). Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2008). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The first requirement for any service connection claim is competent evidence of existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran has diagnoses for the claimed conditions. The veteran asserts that his prostate cancer, diverticulosis, and removal of the parathyroid gland are due to exposure to herbicides. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The following diseases are associated with herbicide exposure for the purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The veteran states that he entered the Republic of Vietnam when he was stationed at Korat RTAFB from September 1973 to May 1974. At his November 2008 hearing, he testified that when travelling to and from Korat RTAFB, the "milk run" flights landed at Tan Son Nhut, in the Republic of South Vietnam, to refuel. In November 2008, the veteran submitted statements from G. J., his spouse, and J. J., his brother. The letters were accompanied by the required waiver of RO jurisdiction. 38 C.F.R. § 20.1304(c) (2008). G.J. stated that the veteran sent her letters that described the route he traveled to Thailand; he flew from Clark Air Force Base in the Philippines and landed in Tan Son Nhut in the Republic of South Vietnam, continued to Ubon RTAFB, and then landed at Korat RTAFB where he was stationed. J. J. stated that he and the veteran discussed his travels through Tan Son Nhut. When the RO attempted to secure dates of service in the Republic of Vietnam, the National Personnel Records Center (NPRC) responded that they were unable to determine whether the veteran served in the Republic of Vietnam. The veteran stated that he used the flight route that took him through Tan Son Nhut (called the "milk run" by soldiers), and did not have duty in the Republic of Vietnam. Thus, there would not be a record. If lay evidence presented by a veteran is found to be credible and ultimately competent, a lack of corroboration by official records is not an absolute bar to the veteran's ability to prove his claim based on that competent lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The veteran has submitted statements in which he reported entering Vietnam on "milk run" flights to and from Korat RTAFB, where he served from September 1973 to May 1974. His service personnel records confirm that he was stationed at Korat RTAFB during this time. His spouse and brother submitted statements in support of the veteran's allegation. These statements are not contradicted by the evidence of record. The veteran's personnel records show that he was commended as an outstanding soldier. His reported flights to Vietnam are consistent with the nature of his service. In this case, the Board finds that the veteran's statements are credible, and adequately supported by objective evidence of record. Thus, resolving the benefit of the doubt in favor of the veteran, the Board finds that the veteran had service in Vietnam during the Vietnam era and is presumed to have been exposed to an herbicide agent. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2008). Prostate cancer is listed as one of the diseases associated with exposure to herbicides. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Because the condition is compensably disabling, service connection for prostate cancer is thus warranted. Diverticulosis and conditions involving the parathyroid gland are not listed as diseases associated with herbicides. Id. Therefore, the presumption of service connection for these conditions based upon herbicide exposure does not apply, and the Board will consider the theory of direct service connection. The veteran's STRs are negative for any diagnosis of or treatment for diverticulosis, parathyroid conditions, or kidney stones. His post-service medical records show treatment for the claimed disorders, but do not provide a link between his disabilities and his period of active service. In June 2008, the veteran underwent VA examinations for his diverticulosis, parathyroid condition, and kidney stones. The physician was asked to provide an opinion regarding whether his conditions could have been caused by exposure to chemical such as arsenic, cosmalene, mrthylethylketone, and benzene in service. The examiner cited to several academic articles regarding chemicals and their effects, and concluded that an opinion could not be made without resorting to speculation. His rationale was that studies show that the chemicals were possibly carcinogenic in animals, the conditions were all common in the general population of humans. The veteran was treated for kidney stones in 2000 and 2003. He had his parathyroid gland removed in January 2004 as a result of hypothyroidism, more than ten years after separation. There was no evidence to link these conditions to military service. In the absence of a link between the claimed disabilities and his period of military service, the claims cannot be granted on a direct basis. The Board finds that the preponderance of the evidence is against service connection for removal of the parathyroid gland. 38 U.S.C.A. § 5107(b). The appeal is denied. Finally, the veteran asserts that his diverticulosis and kidney stones are caused by his service connected chronic costochondritis (abdominal/rib pain). A disability can be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a non-service- connected disease or injury that is proximately due to or the result of a service- connected disease. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service- connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board is aware of the recent change in 38 C.F.R. § 3.310. Clearly, the new regulation is restrictive and the Board shall not give impermissibly retroactive effect to the new regulation in this case. Since the veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant. See 38 C.F.R. § 3.310 (effective October 10, 2006). There is no evidence of record to show that diverticulosis and kidney stones are known complications of costochondritis. Therefore, service connection cannot be granted on a secondary basis. The Board finds that the preponderance of the evidence is against service connection for diverticulosis and kidney stones. 38 U.S.C.A. § 5107(b). The appeals are denied. ORDER Service connection for prostate cancer is granted. Service connection for removal of the parathyroid gland is denied. Service connection for diverticulosis is denied. Service connection for kidney stones is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs