Citation Nr: 1137704 Decision Date: 10/06/11 Archive Date: 10/11/11 DOCKET NO. 05-34 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for prostate cancer and current residuals, to include as due to herbicide and/or asbestos exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In connection with his appeal, the Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in May 2010; a transcript of the hearing is associated with the claims file. Subsequent to the most recent June 2011 supplemental statement of the case, the Veteran submitted additional evidence consisting of articles published on the internet in support of his claims without a waiver of RO jurisdiction. In light of the positive outcome of this decision, and because the evidence is primarily duplicative of evidence that he previously submitted, the Board finds no prejudice to the Veteran in proceeding with the claim. This case was previously before the Board in July 2010, at which time the Board remanded the claims for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam or in the inland waterways of Vietnam. 2. The Veteran was likely exposed to asbestos during service. 3. The Veteran's prostate cancer and current residuals are as likely as not are related to exposure to asbestos during service. CONCLUSION OF LAW In resolving all doubt in favor of the Veteran, the Veteran's prostate cancer and current residuals are proximately due to or the result of exposure to asbestos in service. 38 U.S.C.A. §§ 1110 , 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2011). In light of the favorable decision herein as to the issue of entitlement to service connection for residuals of prostate cancer the Board finds that any deficiencies in notice were not prejudicial to the Veteran. The Veteran contends that his prostate cancer and current residuals are a result of in-service exposure to asbestos or to herbicides, both which he was exposed while serving aboard the U.S.S. Waldron during the Vietnam War. With regard to exposure to asbestos, he contends that as a boiler room technician, he spent many hours in an asbestos filled boiler room, breathing in asbestos contaminated air for many hours at a time in a very small space without adequate ventilation. With regard to exposure to herbicides, the Veteran contends that his ship came into close contact with the landmass of Vietnam during battle and therefore it should be presumed that he was exposed to herbicides while in service. He further contends that as a boiler room technician, he came into contact with herbicide contaminated waters. He also contends that his ship passed through Guam and the Panama Canal, with a layover in Panama City, and that there is documentation that herbicides were tested both of those places. He contends that his prostate cancer and current residuals are the result of these in-service exposures. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). 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 (Fed. Cir. 2000). Service connection for some disorders, including malignant tumors, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents. In the case of such a veteran, service connection for disorders will be rebuttably presumed if they are manifest to a compensable degree at any time after service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2011). The presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d) (2011). Receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam cannot establish presumptive exposure to herbicides related to Vietnam era service because it does not constitute service in the Republic of Vietnam unless the service in the waters offshore or other locations involved duty in or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6) (2011); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Service in Vietnam means service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6) (2011). In this case, the evidence of record does not show that the Veteran's service included service in the inland waterways of Vietnam or involved duty in or visitation in the Republic of Vietnam. Therefore, despite the Veteran's contentions, the Board finds that service connection for prostate cancer due to a presumption of being related to exposure to herbicides is not warranted because the evidence does not show service in the Republic of Vietnam. Thus, the Veteran is not entitled to the presumption of exposure to herbicides. 38 C.F.R. § 3.309(e) (2011). Having determined that the Veteran is not entitled to presumptive service connection, the Board must also evaluate whether the Veteran is entitled to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, for the reasons stated below, the Board finds that service connection for prostate cancer is warranted on a direct basis due to exposure to asbestos, rather than to herbicide exposure, and therefore the Board will turn to that analysis. There is no specific statutory guidance with respect to asbestos-related claims. Nor has the Secretary promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, the M21-1 was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Regarding the M21-1MR's exclusion of prostate cancer from urogenital cancers that may result from inhalation of asbestos fibers, the Board notes that VA's General Counsel determined that the M21-1MR provisions discussing asbestos and asbestos-related diseases generally are not substantive in nature. VAOPGCPREC 4-2000 (April 13, 2000). Rather, the manual provisions were designed in order to provide VA with guidance in developing claims involving asbestos exposure. In this regard, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). In this case, the Veteran's service personnel records and service separation papers reflect that while he served aboard the U.S.S. Waldron, he served as a boiler room technician. His records do not demonstrate that he was exposed to asbestos as a part of his duties. The Board, however, finds that the Veteran's contentions regarding in-service exposure to asbestos while serving aboard the U.S.S. Waldron are both credible and plausible. Therefore, the Board finds that it is as likely as not that the Veteran was exposed to asbestos in service. However, mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question in a claim such as this is whether disabling harm ensued. The medical evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between this current disability and the exposure to asbestos in service. Hickson v. West, 12 Vet. App. 247 (1999). Service treatment records are negative for any complaints, findings, or diagnosis of prostate cancer, chronic pulmonary disorders (including COPD and asbestosis), or any other asbestos-related disease. Post-service treatment records reflect that in August 2004, the Veteran's prostate-specific antigen (PSA) levels were high and biopsy resulted in a findings of carcinoma of the prostate. In November 2004, he underwent brachytherapy, with good post-operative course. Subsequently, the Veteran's cancer went into remission and routine check-ups to follow his PSA levels did not indicate further malignancy. In support of his claim, the Veteran submitted a medical article that stated that scientific studies, though limited, had documented a possible link between asbestos exposure and prostate cancer. The article stated that "a lucid understanding of this plausible connection" would only be achieved through further research and analysis. On July 2010 VA examination, the Veteran denied any family history of prostate cancer. It was noted that his only significant risk factor was one of age. The examiner decided to concede the Veteran's asbestos exposure due to the Veteran's report of his in-service duties as boiler room technician. After physically examining the Veteran and reviewing the claims file, the examiner stated that he had also found the same medical literature as the Veteran had previously submitted, stating that there was a possible link between asbestos exposure and prostate cancer. However, he could not find literature to support a direct causal link between asbestos exposure and prostate cancer. Thus, absent literature to show a direct causal link, the examiner determined that the Veteran's prostate cancer was not caused by exposure to asbestos in service. In this case, however, the Board finds that because the VA examiner cited medical literature finding a possible link between asbestos exposure and the development of prostate cancer, and the Veteran's exposure to asbestos in service is conceded by the Board, the evidence is at least in equipoise with regard to service occurrence. First, with regard to service incurrence, there is no indication in the claims file that the Veteran was exposed to asbestos prior to or following his service. Following service, he worked at a gas station and also rode trucks as part of that occupation. The evidence therefore indicates that any asbestos exposure would necessarily have been during service, as working in the boiler room of a ship includes duties involving exposure to asbestos. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9(f) (Common materials that might contain asbestos include steam pipes for heating units and boilers). The VA examiner also agreed with such an assessment, conceding exposure. Furthermore, the Board finds that the Veteran is competent to report details of his exposure to asbestos. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007). Next, with regard to whether the in-service asbestos exposure caused the Veteran's prostate cancer, the Board finds that the current medical literature, as stated by the VA examiner, suggests a possible link between prostate cancer and asbestos exposure. The VA examiner did not find any evidence to contradict the medical literature. The Board is cognizant that the VA examiner could not find evidence to demonstrate a direct causal link between asbestos exposure and prostate cancer, but rather literature to suggest a possible link between the two. However, the Board finds it to be significant that the examiner acknowledged a possible link between asbestos exposure and the development of prostate cancer, and that the examiner found no reason to doubt the literature or studies that found such a possible link. Further, although the examiner could not find literature to show a "direct causal link" between the two, he did not clarify whether that meant that there was less than a 50 percent probability that the Veteran's prostate cancer was due to asbestos exposure. The Board notes that the standard of proof in this case is as likely as not, or within the realm of 50 percent probability or greater, and that a finding of a possible link, without any evidence to contradict that finding, is supportive of the Veteran's claim and may meet that standard. Therefore, because it is unclear whether the examiner based his medical opinion on the correct standard, or rather on one that requires a higher degree of certainty, and in light of the medical evidence that is uncontradicted and supportive of the Veteran's claim, the Board finds that all doubt is resolved in favor of the Veteran, and service connection for prostate cancer and current residuals is warranted. Given the Veteran's work duties involving many hours working in the boiler room of the U.S.S. Waldron, and the absence of any documented pre-service or post-service exposure to asbestos, the Board concludes that the Veteran was exposed to asbestos during his military service. Moreover, given that the competent medical opinion of record that documented medical literature suggesting that asbestos exposure was linked to prostate cancer, which the Board finds to be probative evidence, and without any contrary opinion or evidence, the Board finds that it is at least as likely as not that the Veteran's prostate cancer and residuals are the result of asbestos exposure during service. Accordingly, service connection for residuals of prostate cancer secondary to exposure to asbestos is warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer and current residuals is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs