Citation Nr: 1036228 Decision Date: 09/24/10 Archive Date: 09/30/10 DOCKET NO. 08-21 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for prostate cancer as a result of exposure to radiation and chemical agents in service, to include Agent Orange and Trichloroethylene (TCE). REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran & M.S. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from September 1956 to June 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In September 2008, the Veteran testified at a personal hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. The Veteran requested a hearing before the Board. The requested hearing was conducted in July 2009 by the undersigned Veterans Law Judge. A copy of the transcript is of record. In September 2009, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. FINDING OF FACT The Veteran's prostate cancer is causally or etiologically related to exposure to TCE during service. CONCLUSION OF LAW Service connection for prostate cancer, as a result of exposure to TCE, is established. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development that may have existed under the VCAA cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to Service Connection for Prostate Cancer, As a Result of Exposure to Radiation and Chemical Agents in Service, to Include Agent Orange and TCE Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection on the merits, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran is seeking entitlement to service connection for prostate cancer as a result of exposure to radiation and chemical agents in service, to include Agent Orange and TCE. TCE is used mainly as a solvent to remove grease from metal parts. Agency for Toxic Substances and Disease Registry. Personnel records indicate the Veteran was a fire control technician and aircraft mechanic. As such, exposure to TCE during active duty is conceded. Service treatment records were reviewed. The Veteran's entrance examination from September 1956 noted a left varicocele. In November 1973, he was evaluated in urology for complaints of four days of gross hematuria. Physical examination revealed a slightly enlarged prostate, rather soft in consistency with some tenderness. He was diagnosed with prostatitis, and a large left varicocele. The separation examination from July 1976 noted a normal rectal and prostate examination. Post-service private records indicate the Veteran was diagnosed with prostate cancer in May 1997 and a radical prostatectomy was performed in June 1997. The Veteran was afforded a VA examination in June 2008. The Veteran's treatment of prostatitis during service was noted, as well as his diagnosis of cancer and radical prostatectomy in 1997. The examiner stated that it could not be determined how much exposure or what concentration of the chemical (TCE) was present when the Veteran was using it on machine guns. As stated by the examiner, the Veteran started using TCE in 1957 and used it for over ten years. The Veteran was diagnosed with cancer of the prostate post radical prostatectomy with residual of stress incontinence. The examiner cited several articles discussing the relationship between TCE exposure and prostate cancer. The examiner opined that the issue of whether the Veteran's prostate cancer was caused by exposure to TCE could not be resolved without resort to mere speculation because there is conflict in the literature regarding TCE exposure and cancer. Opinions like this, which can only make the necessary connection between the current disorder and the Veteran's military service by resorting to mere speculation, amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). An addendum to the June 2008 opinion was obtained in December 2009. The examiner cited several medical articles and opined that even though there is an increase in kidney cancer, liver issues and possible other associations, specifically leukemia and lymphoma, the examiner could not find any commentary relating TCE exposure specifically to prostate cancer. The examiner continued by stating that although TCE has been described as carcinogenic, the relationship to prostate cancer has not been found. As a result, the examiner opined that it is less likely that any TCE exposure specifically caused the Veteran's prostate cancer. The Board, however, finds that service connection for prostate cancer based on exposure to TCE is warranted. Notably, several of the medical articles listed and discussed by the June 2008 examiner state that there is an association between TCE exposure and prostate cancer. Specifically, the Report on Carcinogens, Eleventh Edition, states, "...occupational exposure to TCE was associated with excess incidences of liver, cancer, kidney cancer, non-Hodgkin's lymphoma, prostate cancer, and multiple myeloma." See Report on Carcinogens, Eleventh Edition, Trichloroethylene CAS No. 79-01-6. Similarly, the Agency for Toxic Substances and Disease Registry, reports prostate cancer is a reported health problem in people of all ages from working with TCE. See Reported health effects linked with trichloroethylene (TCE), tetrachloroethylene (PCE), benzene, and vinyl chloride (VC) exposure, Agency for Toxic Substances & Diseases Registry. Additionally, a research article titled, Trichloroethylene Cancer Epidemiology: A Consideration of Select Issues states that the, "U.S. Environmental Protection Agency 2001 draft TCE health risk assessment concluded that epidemiologic studies, on the whole, support associations between TCE exposure and excess risk of kidney cancer, liver cancer, and lymphomas, and, to a lesser extent, cervical cancer and prostate cancer." The evidence in the case is not definite, but it does not have to be. As stated previously, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board finds that the evidence is at least evenly balanced as to the question of whether the Veteran's prostate cancer was due to exposure to TCE. Although there is a VA medical opinion of record unfavorable to the Veteran's claim, in view of the totality of the evidence, particularly the evidence showing that exposure to TCE has been associated with excess incidences of prostate cancer, the Board finds that the positive medical evidence is at least as persuasive as the negative evidence. Upon resolution of every reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for prostate cancer due to exposure to TCE. ORDER Service connection for prostate cancer, due to exposure to TCE, is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs