BVA9507631 DOCKET NO. 94-48 587 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for prostate cancer as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from April 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 rating decision of the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO), which denied a claim of entitlement to service connection for prostate cancer as secondary to Agent Orange exposure. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he was exposed to Agent Orange while he was in Vietnam. He believes that Agent Orange exposure caused him to develop prostate cancer. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for prostate cancer as secondary to Agent Orange exposure. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant had active service in Vietnam during the Vietnam era. 3. Prostate cancer is not recognized by the VA as etiologically related to exposure to herbicide agents used in Vietnam. 4. No competent medical evidence has been submitted indicating that prostate cancer is related to service, or is due to any in-service occurrence or event, including Agent Orange exposure. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for prostate cancer as secondary to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5107(a) (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered at the outset of the analysis of any issue is whether the appellant's claim is well- grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The United States Court of Veterans Appeals (Court) has said that the statutory "duty to assist" under 38 U.S.C.A. § 5107(a) (West 1991) does not arise until there is a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1994) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) (1994) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a) (1994). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (1994) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1994) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; Porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1994). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit recently determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, No. 93-7107 (Fed. Cir. Sept. 1, 1994). However, the Court has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In this case, the evidentiary assertions as to the claim of service connection for prostate cancer as secondary to Agent Orange exposure, as incurred in or aggravated by military service, are inherently incredible when viewed in the context of the total record. Review of the appellant's service medical records reveals no complaint, symptomatology, or finding of prostate cancer. A July 1992 private medical record, from A. W. Ramsay, M.D., disclosed that the appellant had "a strong family history of cancer." It was reported that the appellant's father had had prostate cancer and that most of his female relatives had had breast cancer. The appellant was hospitalized with a diagnosis of bladder outlet obstruction and a bladder mass. A cystoscopy and resection of the bladder tumor was performed in June 1992 and his discharge diagnosis was "transitional cell carcinoma of the bladder." A July 1992 private medical record, from N. K. Bissada, M.D., indicated that the appellant had undergone radical cystoprostatectomy, bilateral pelvic lymphadenectomy, and continent urinary diversion. In a July 1994 private medical statement, from N. K. Bissada, M.D., the physician stated that the appellant had developed locally advanced high grade prostate cancer that had been managed in July 1992. The physician reported that it was rare for a 44 year old male to have developed such an advanced stage of prostate cancer with no family history of prostate cancer. In an October 1994 private medical statement, from A. W. Ramsay, M.D., the physician noted that the appellant was the youngest person he had ever seen with prostate cancer who had no family history of that disease. The physician stated that this was extremely "unusual and rare," and he opined that the appellant's "exposures during his military service . . . should be a consideration as a possible cause/etiology of this very unusual tumor developing in this otherwise healthy male." The Board notes that Dr. Ramsay's October 1994 private medical statement, which indicated that the appellant had no family history of prostate cancer, is incongruous with his aforementioned July 1992 medical record, which disclosed that the appellant's father had had prostate cancer and that the appellant had "a strong family history of cancer." In a January 1995 private medical statement, from M. M. Decker, M.D., the physician noted that it was unusual for a man as young as the appellant to have developed such a severe case of prostate cancer. The physician also wondered whether the appellant's exposure to Agent Orange had contributed to his prostate cancer. In a January 1995 private medical statement, from A. W. Ramsay, M.D., the physician stated that the appellant's cancer had spread outside of his prostate and that his prognosis was not good. In this case, there is no competent medical evidence suggesting a connection between the appellant's presumed herbicide exposure while in Vietnam and his development of prostate cancer almost 23 years after his separation from service. His assertions of medical causation alone are not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Although the National Academy of Sciences report, entitled "Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam," dated July 27, 1993, assigns prostate cancer to a category labeled limited/suggestive evidence of an association between herbicide exposure and a particular health outcome, that evidence is limited because chance, bias, and confounding could not be ruled out with confidence. Diseases Not Associated with Exposure to Certain Herbicide Agents, 59 Fed. Reg. 341, 342 (1994). Furthermore, there are statistically significant occupational studies that show no association between prostate cancer and herbicide exposure. Id. Accordingly, the Secretary has found that the credible evidence against an association between prostate cancer and herbicide exposure outweighs the credible evidence for such an association, and he has determined that a positive association does not exist. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or an in-service event or occurrence, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Although the appellant argues that his exposure to Agent Orange while in Vietnam, which is presumed for a veteran who served in the Republic of Vietnam during the Vietnam era and who has a disease listed at 38 C.F.R. § 3.309(e) (1994) (38 C.F.R. § 3.307(a)(6)(iii) (1994)), resulted in the development of prostate cancer, that disorder is not recognized as one of the diseases attributable to Agent Orange exposure. Consequently, in the absence of competent evidence of medical causation between Agent Orange exposure and the prostate cancer, the claim is not well-grounded, and must be dismissed. The Court has expressed its concern that, in a situation in which the claim is not well-grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decisions in August 1994 and February 1995. ORDER A well-grounded claim for service connection for prostate cancer due to herbicide exposure not having been submitted, the claim is dismissed, and the rating decisions in August 1994 and February 1995 are vacated. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.