Citation Nr: 0507201 Decision Date: 03/14/05 Archive Date: 03/21/05 DOCKET NO. 02-09 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Togus, Maine THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Associate Counsel INTRODUCTION The veteran had active military service from November 1970 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Togus, Maine. FINDINGS OF FACT 1. All available information and evidence necessary for an equitable disposition of the veteran's claim have been obtained. 2. The veteran was exposed to nerve agents during active service. 3. The veteran's prostate cancer is shown as likely as not to be related to the veteran's exposure to nerve agents during service. CONCLUSION OF LAW The veteran's prostate cancer is due to exposure to nerve agents during his active service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background A letter from the U.S. Army Chemical Center and School, dated in March 1971, indicates that the veteran had attended a course and had been exposed to nerve agents. Blood cholinesterase levels were noted to be .79 on February 22, 1971, and .74 on March 5, 1971. Private medical records indicate that the veteran was found to have an elevated prostate-specific antigen (PSA) with symptoms of prostatitis in 1997. He was treated with antibiotics. Subsequent evaluations showing further elevation of the veteran's PSA led to a transurethral ultrasound and biopsy in March 1999. The veteran was found to have a Gleason VII adenocarcinoma of the prostate. He underwent radical prostatectomy and bilateral pelvic lymph node dissection in April 1999. A May 2000 letter from the veteran's urologist indicates that the author had conducted an extensive literature search regarding a possible link between nerve gas exposure and prostate cancer. He noted that the veteran had been diagnosed with Gleason VII adenocarcinoma of the prostate at the young age of 51. He indicated that there was no history of carcinoma of the prostate in the veteran's family and that the diagnosis at such a young age was somewhat surprising. He stated that while there were no studies regarding a link between nerve gas and prostate cancer, there were a number of studies linking such cancer with exposure to pesticides. He indicated that nerve gas agents and pesticides were related compounds, both being organophosphates, with similar mechanisms of action. He pointed out that one would expect similar mechanisms of toxicity, and noted that pesticides possibly exerted their carcinogenic effect through hormonal activity. He further pointed out that prostate cancer is very hormonally sensitive, specifically to androgens which can be affected by pesticides. He concluded that although there was no reported link between nerve gas agents and prostate cancer, there was at least compelling evidence to suggest that there was some relationship between pesticides and nerve gases, and a link between nerve gases and prostate cancer. The veteran submitted his claim of entitlement to service connection for prostate cancer in July 2000. In support of his claim the veteran provided an assortment of documents, apparently obtained from the Internet, regarding various chemicals and their effects. In January 2001 the veteran submitted a statement as well as copies of research reports and other documents in support of his claim. He indicated his belief that he had been exposed to nerve agents and other agents to include blister agents, blood agents, choking agents, and harassing agents. He maintained that the agents to which he was exposed are carcinogenic and that exposure to toxic agents might not result n cancer until 30 years later. The veteran was afforded a VA examination in July 2001. The examiner noted that he had reviewed the claims folder, to include voluminous information gathered by the veteran, relating to organophosphates and toxicity. The veteran related information about his chemical training in 1971. The examiner concluded that while it was possible that the veteran had developed his cancer as a result of his training, it was not probable. He indicated that the levels of blood cholinesterase prior to and after the veteran's training did not show an appreciable drop. He also noted that there was no history or findings of any acute symptomatlogy suggesting exposure to toxic chemicals at the time of the veteran's training. Finally, he indicated that there was no definite, firm relationship between the possible exposure to organophosphates and the development of prostate cancer. The RO requested an opinion from the Director of VA's Compensation and Pension service in October 2001, who thereafter requested a medical opinion from the Chief, Public Health and Environmental Hazards Officer. In November 2001, she responded that she had reviewed the veteran's history. She noted that exposure to nerve agents or insecticides is not generally included as a risk factor for prostate cancer. She further noted that the Institute of Medicine (IOM) of the National Academy of Sciences had recently reviewed potential adverse health effects of the nerve agent Sarin and that prostate cancer was not one of the health effects identified as being causally related to Sarin exposure or for which a suggestive association was found. She opined that it was possible that the veteran's prostate cancer was related to his exposure to nerve agents in service, but indicated that she could not stated that it was likely or at least as likely as not to be responsible. In October 2002, the veteran submitted an opinion from a private oncologist. The oncologist explained that all nerve gases belonged chemically to the group of organophosphate compounds and that they were first produced as pesticides and insecticides. She noted that they were subsequently developed as military weapons. She pointed out that organophosphate pesticides could be carcinogenic. The oncologist directly addressed the report of the veteran's VA examination. She stated that the examiner's dependence on the blood cholinesterase levels did not take into account that some organophosphorus compounds have other toxic actions and that rapid spontaneous reversal of inhibition could occur in vitro after blood had been drawn. She pointed out that the record did not indicate when the blood was drawn and the promptness with which it was tested after being drawn. She pointed out that the record did in fact demonstrate that the veteran had been exposed to nerve gas during his training, and noted that the VA examiner's statement regarding the lack of history or findings suggesting exposure was irrelevant. She also disputed the VA examiner's statement that there was no definite relationship between the possible exposure to organophosphates and the development of prostate cancer. She pointed out that a study of cancer incidence of licensed pesticide applicators had shown a significantly increased occurrence of prostate cancers. She also referenced another study which indicated elevated prostate cancer risk among farmers and other agriculture workers. She concluded that it was more likely than not that the veteran's prostate cancer was caused by his exposure to chemicals like nerve gases during explosive ordinance disposal training. The veteran testified before a decision review officer at the RO in December 2002. He related the history of his military service. He reviewed various studies suggesting a relationship between his exposure during service and his prostate cancer. In a September 2003 advisory opinion, the Chief, Public Health and Environmental Hazards Officer addressed the studies referenced by the private oncologist. She again concluded that while there was a possibility that the veteran's prostate cancer was related to his exposure to nerve agents in service, it was not at least as likely as not that his malignancy can be attributed to such exposure. In September 2004 the Board determined that an additional medical opinion was necessary to determine whether service connection for prostate cancer was warranted. In October 2004, a physician from the University of Alabama Birmingham provided an opinion regarding the veteran's prostate cancer. The physician noted the early age at which the veteran was diagnosed. He indicated that malignancy at age 51 suggested that environmental factors probably played a role. He noted that although other environmental factors might have been involved, the nerve agents to which the veteran was exposed were easiest to implicate. With regard to the other opinions of record, the physician indicated that they were limited by relative lack of data pertaining to the effects of nerve gases on prostate carcinoma. However, he indicated his agreement with the opinions of the private physicians to the degree that organophosphates had been associated with a higher incidence of prostate carcinoma, and that such tended to support the veteran's contention that his prostate carcinoma may have been caused in part by his exposure to nerve gases having similar properties. In summary, the physician concluded that due to the veteran's young age and in the apparent absence of a family history, in addition to his history of exposure to nerve agents, it was more likely that his prostate carcinoma was associated with exposure to such agents. II. Veterans Claims Assistance Act of 2000 The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West. 2002)] and the regulations implementing it are applicable to the veteran's claim. As explained below, the Board has determined that the information and evidence currently of record are sufficient to substantiate the veteran's claim. Therefore, no further development is required to comply with VCAA or the implementing regulations. III. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Having carefully reviewed the evidence of record, the Board concludes that service connection for prostate cancer is warranted. The Board notes that the VA examiner concluded that it was not probable that the veteran's prostate cancer was caused by exposure during his chemical training. He based his conclusion on the lack of appreciable drop in blood cholinesterase levels, lack of history of findings of any acute symptomatology suggesting exposure to toxic chemicals and the lack of a definite relationship between possible exposure to organophosphates and the development of prostate cancer. However, the veteran's private urologist argued that there were a number of studies linking prostate cancer with exposure to pesticides, a compound related to nerve gas agents in that they are both organophosphates with similar mechanisms of action. A private medical oncologist directly addressed the VA examiner's conclusion and the bases for it. She argued that his dependence on the veteran's blood cholinesterase levels failed to account for various factors. She also noted that there was in fact evidence that the veteran had been exposed to nerve gas agents during service. Finally, she argued that studies had shown an increased occurrence of prostate cancers in individuals who worked with pesticides. She concluded that it was more likely than not that the veteran's prostate cancer had been caused by his exposure to chemicals such as nerve gases during his military training. The Chief, Public Health and Environmental Hazards Officer has essentially conceded that the veteran's prostate cancer is possibly related to exposure to nerve gas agents in service, but she is of the opinion that this possibility is less likely than not. Finally, an independent medical examiner concluded, based on a full review of the veteran's records, that it was more likely that the veteran's prostate cancer was associated with exposure to nerve agents in service. In the Board's opinion, the evidence supportive of the claim is at least in equipoise with that against the claim. Therefore, the Board concludes that service connection for prostate cancer is warranted. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for prostate cancer is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs