Citation Nr: 1543352 Decision Date: 10/08/15 Archive Date: 10/13/15 DOCKET NO. 13-03 432A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for residuals of prostate cancer. . REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from December 1954 to September 1958. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California; which denied service connection for prostate cancer. A September 2013 rating decision granted service connection for hearing loss and tinnitus, assigned initial 40 and 10 percent disability ratings, respectively, effective February 28, 2013. In November 2013, the Veteran filed a timely notice of disagreement with the assigned effective date. In April 2014, a statement of the case (SOC) was issued. The Veteran did not submit a substantive appeal within the year after notice of the September 2013 rating or within 60 days of the substantive appeal. In September 2014, the Veteran testified during a hearing at the RO before the undersigned. A transcript is of record. In November 2014, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development as to his prostate cancer claim, and issuance of a SOC as to his claims for an effective date earlier than February 28, 2013 for the grant of service connection for hearing loss and tinnitus (the April 2014 SOC was evidently not associated with the Veteran's claims file in November 2014). As noted, a substantive appeal is not of record regarding these claims and they were not certified for appellate consideration. In an August 2015 statement, the Veteran raised a new claim for an effective date earlier than February 28, 2014 for service connection for hearing loss and tinnitus, and a claim for increased initial ratings for hearing loss and tinnitus. There can be no free standing claims for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Veteran also raised a claim for an increased rating for hearing loss. This matter is referred to the RO for initial adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Prostate cancer is the result of a disease or injury during a period of active service. CONCLUSION OF LAW The criteria for service connection for prostate cancer residuals are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). The Veteran contends that he has prostate cancer as a result of chemical exposure in service. He contends that he was exposed to 2, 4-D; and 2, 4, 5-T (later known as Agent Orange), JP-4 jet fuel, benzene, and other chemicals, in his duties as aircraft crew chief. He notes that he was exposed to the chemicals at U.S. Air Force bases in Okinawa and Moses Lake, Washington. In a lengthy October 2009 statement, statements in 2011 and 2013, and his November 2014 Board testimony, the Veteran maintained that in the 1950s British and United States military used herbicides to defoliate navigation areas in Okinawa. Air Force bases used a combination of 2,4,-D; and 2,4,5-T, later known as Agent Orange and other dioxins, as weed killers and defoliants to control overgrowth of weeds and vegetation on flight lines, runways, and around structures on Okinawa. Crews routinely sprayed flight lines, runways and around structures. According to the Veteran, on a conservative daily average, there were approximately 15 or 16 takeoffs and landings. Each created blowing dirt, debris, and exhaust. As a crew chief, he was required to spend his work hours on the flight line in the open with no protection and was constantly exposed to sprayed dioxin, 2,4,-D; and 2,4,5-T mixed with diesel and jet exhaust. See Veteran's October 2009 statement. The Veteran explained that, approximately 15 to16 times a day, for 18 months, he regularly inhaled and ingested 2,4,-D; and 2,4,5-T, and dioxin-treated dirt, that covered his skin. He was exposed, inhaled, ingested, and absorbed 2,4,-D; and 2,4,5-T, and dioxin-treated dirt about 5,850 to 6,000 times while at Naha Air Force Base in Okinawa. Id. The Veteran reported similar exposure while at Larson Air Force Base in Washington, approximately three times a day, for 18 months, about 1,170 to 1,200 times. Id. He further contends that his duties exposed him to JP-4, benzene, and trichloroethylene(TCE) solvents. The Veteran submitted evidence that some of these substances were known carcinogens. A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303. To establish service connection, evidence 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, such as malignant tumors, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Service incurrence for prostate cancer will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. Under § 3.307, the term "herbicide agent" means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. Facts and Analysis The Veteran was diagnosed as having adenocarcinoma of the prostate by biopsy in June 2008. See March 2015 VA examination report. Thus, the Veteran has a current disability. Service personnel records show that the Veteran's military occupation was jet engine aircraft mechanic. He credibly reports that he was exposed to 2,4-D; 2,4,5-T, jet fuel, and to benzene and other chemicals, in his duties as an aircraft chief. The Veteran notes that these chemicals would later be called Agent Orange and that he was exposed to them in Okinawa. His wife testified that research showed diesel was mixed with 2,4-D; and 2,4-T to cut wax on plants so they could better absorb the mixture, and that it was very carcinogenic. See Board hearing transcript at page 5. The Veteran submitted copies of articles suggesting that Agent Orange may have been stored and/or used on Okinawa in the 1950s to late 1960s, that is the time period during which he served there. He also submitted articles describing the carcinogenic effects of 2, 4-D; 2,4, 5-T, and herbicides, as well as benzene and TCE. Given this evidence, the Board accepts that the Veteran was exposed to 2,4-D; and 2,4, 5-T and other chemicals during his active service in while in Okinawa. The Veteran did not serve in Vietnam, or other area recognized by VA; therefore, he is not entitled to a presumption of service connection for his prostate cancer under the aforementioned law and regulations governing claims for service connection for disabilities resulting from herbicide exposure. As previously indicated, however, the Veteran may be entitled to service connection for this disease on a direct basis if the evidence establishes that his prostate cancer is related to the herbicide exposure. In March 2015, a VA examiner opined that "[t]here is no way to quantify the [V]eteran's exposures to the above mentioned chemical agents during his period of service in Okinawa in the mid to late 1950s when he did single engine jet aircraft maintenance. Granted, he was walking about areas that appeared to be defoliated and ditches that may well have been filled with toxic chemicals during his tour there...[w]hereas, the aforementioned chemicals are known to have varying degrees of carcinogenicity in humans, prostate cancer is not one of the cancers listed to be caused by exposure to 2,4-D; 2,4,5-T; JP-4 jet fuel; trichloroethylene solvents and/or benzene." The evidence in favor of the Veteran's claim includes his credible statements and testimony regarding his exposure to 2,4-D; 2,4,5-T and other chemicals while in active service; and the numerous articles he submitted regarding the use of these products in Okinawa, and effect of these products. While the Veteran was not exposed to Agent Orange per se, the evidence is in equipoise as to whether he was exposed to its chemical components that VA determined cause prostate cancer. See 38 C.F.R. §§ 3.307(a)(6)(i), 3.309(e). The evidence against the claim includes the March 2015 opinion of the VA examiner who stated that prostate cancer is not one of the cancers caused by exposure to 2,4-D; 2,4,5-T. This is contrary to VA regulations that associate prostate cancer with exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(i) (to the effect that an herbicide agent means 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram). Thus, the Board cannot rely on the examiner's opinion. At the very least, this leaves the probative evidence of record in equipoise. Given the Veteran's military occupation as a jet engine aircraft mechanic, the Board concedes his exposure to 2,4-D; 2,4,5-T. These chemicals are the same as those in Agent Orange that is associated with causing prostate cancer. See 38 C.F.R. § 3.307(a)(6)(i). As such, resolving all doubt in the Veteran's favor, service connection for prostate cancer is warranted and the Veteran's appeal is granted. 38 U.S.C.A. §§ 1110, 1131, 5108(b); 38 C.F.R. § 3.303. ORDER Service connection for prostate cancer is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs