Citation Nr: 1130938 Decision Date: 08/19/11 Archive Date: 08/29/11 DOCKET NO. 06-17 754A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Andrew Mack INTRODUCTION The Veteran served on active duty from December 1963 to December 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2004 rating decision in which the RO denied the Veteran's claim for service connection for prostate cancer. In August 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2006, and the Veteran filed a statement in June 2006 which was accepted as a timely substantive appeal by the RO. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2007 and requested a local hearing with the Board (Travel Board hearing). In June 2008 the Veteran's representative cancelled his hearing request and asked that his claim be transferred to the Board. In August 2008, the Board denied service connection for prostate cancer, claimed as due to herbicide exposure. The Veteran appealed the August 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2009, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In June 2010, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence consistent with the parties' joint motion. After completing further action, the AMC continued to deny the claim (as reflected in a September 2010 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further appellate consideration. In November 2010, the Board again remanded the Veteran's claim to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny the claim (as reflected in a June 2011 SSOC) and returned the matter on appeal to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The record does not reflect, and the Veteran does not assert, that prostate cancer began in service or manifested within a year of service; the record reflects no diagnosis of prostate cancer until 2004. 3. The Veteran did not serve on active duty in Vietnam during the Vietnam era (the period from January 9, 1962 to May 7, 1975). 4. The Veteran served on Anderson Air Force Base, Guam, from April 1966 to December 1967. 5. The most persuasive evidence on the question of whether the Veteran was exposed to Agent Orange during his period of service is an August 2006 Compensation and Pension Service report and a January 2011 report from the U.S. Army and Joint Service Records Research Center, which state that available Department of Defense and unit historical data do not document any Agent Orange spraying, testing, storage or usage at Anderson Air Force Base in 1966 or 1967. 6. Prostate cancer is not due to in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for prostate cancer, claimed as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a June 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The November 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the June 2004 letter. A March 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2006 letter, and opportunity for the Veteran to respond, the June 2011 SSOC reflects the most recent readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and two letters from the Veteran's VA physician. Also of record and considered in connection with the appeal are service personnel records, articles and reports submitted by the Veteran, and reports from the Compensation and Pension Service and the U.S. Army and Joint Service Records Research Center, along with various written statements provided by the Veteran, and by his representative and service comrade, on his behalf. The Board also finds that no additional RO action to further develop the record is warranted. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim for service connection. As will be discussed in greater detail below, while record reflects a diagnosis of prostate cancer, this claim is being denied because the record does not reflect in-service herbicide exposure, as claimed by the Veteran, to which prostate cancer can be linked. An examination and medical opinion would not provide probative evidence of such in-service herbicide exposure-the essential criterion on which this case turns. Thus, the current record does not reflect even a prima facie claim for service connection for the claimed disability, and VA therefore has no obligation to obtain any medical opinion commenting upon the etiology of the claimed disability. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as cancer, which develop to a compensable degree (10 percent for cancer) within a prescribed period after discharge from service (one year for cancer), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, prostate cancer shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). In this case, the record does not reflect, and the Veteran has not asserted, that he had any service in the Republic of Vietnam during the Vietnam Era. Rather, the Veteran asserts that his prostate cancer is the result of Agent Orange exposure during 20 months of service at Anderson Air Force Base (AFB) in Guam. VA has developed specific procedures to determine whether a veteran was exposed to herbicides where such herbicide exposure is claimed to have occurred in a vicinity other that the Republic of Vietnam, the demilitarized zone (DMZ) in Korea, or Thailand. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(o) directs that where a Veteran provides sufficient information regarding the approximate dates, location, and nature of the alleged exposure, a detailed statement of the Veteran's claimed herbicide exposure should be furnished to the Compensation and Pension (C&P) Service via e-mail, and a review requested of the Department of Defense's (DOD's) inventory of herbicide operations to determine whether herbicide were used as alleged. If the exposure is not verified by the C&P Service's review, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides, if the Veteran has provided sufficient information to permit such a search by the JSRRC. Service personnel records show that the Veteran served at Anderson AFB, Guam, from April 1966 to December 1967 in the 3rd Munitions Maintenance Squadron. His military specialty during that time was "Weapons Mechanic." Personnel records further reflect that the Veteran's duties included performing breakout, transports, positions loading, downloading, and transport of conventional munitions on aircraft. They also included performing checkout, troubleshooting, repair, and maintenance of B-52 aircraft weapon release systems, maintaining assigned checkout and loading equipment, and eventually becoming a team chief of a munitions loading team. Service treatment records reflect no findings pertinent to prostate cancer. VA treatment records reflect that, in February 2004, the Veteran was found to have increased prostate-specific antigen (PSA), and an abnormal prostate examination, and the possibility of prostate cancer was discussed with him. In March 2004, the Veteran was diagnosed with adenocarcinoma of the prostate. An April 2004 letter from the Veteran's treating VA radiation oncologist, Dr. K., indicates that the Veteran was 59 years old and currently undergoing hormonal and radiation therapy for locally advanced prostate cancer. Dr. K. stated that he understood that the Veteran was involved with the loading of boxes onto aircrafts during his tour of duty in Guam, and that these munitions often contained Agent Orange and napalm. Dr. K. further opined that, in view of the Veteran's young age and the aggressive nature of his prostate cancer, the cancer was related to Agent Orange exposure. In several written statements submitted by the Veteran, beginning in April 2004, the Veteran has asserted that he spent 20 months on Anderson AFB, Guam, as a munitions and weapons specialist. He stated that he was a sergeant in charge of a weapons loading crew on B52s, which were flown every day to Vietnam, and that he personally handled 77,000 to 200,000 bombs. He also asserted that the area around the shop, barracks, airfield, and weapons storage was sprayed often with what he believed was Agent Orange. He stated that the spray killed all the growth at the time. He further asserted that he walked and worked in this area for 12 hours a day every day, that there was a substance on his and his coworkers' and their hands, boots, and clothes every day, and that he would often eat without washing his hands. The Veteran stated, moreover, that he fired on the base range twice a year during this service, and that the Veteran had found out that this was an area with very high Agent Orange concentration. He also stated that he had found out that the bomb flatbeds were also used to haul barrels of Agent Orange to Anderson AFB from a naval base, that these barrels often were damaged and leaked onto the flatbeds, that he noticed that the flatbeds had oil on them, and that the bombs had very porous metal. In February 2005, Dr. K. submitted another letter indicating the Veteran had aggressive cancer. According to Dr. K., the Veteran related that he was loading Agent Orange herbicide onto military aircraft on a daily basis, that several of the barrels had broken open and he was required to clean up the contents, and that he felt that he had had significant exposure because of this. Dr. K. stated that, in reviewing the Veteran's medical history, it was notable that he had significantly advanced disease for a 59-year-old man, and that this was one of the most common findings in Vietnam veterans that had been exposed to Agent Orange. Dr. K. stated that he had seen several patients presenting in similar fashion over the past 10 years, and that he suggested to the Veteran that he contact his former military colleagues who could corroborate the story of exposure and clean up of Agent Orange waste. Dr. K. concluded that, based on the Veteran's history of exposure to Agent Orange and other herbicidal agents during the loading of aircraft and cleanup of these agents, this certainly provided a strongly link to his very aggressive prostate cancer at such an early age. In June 2006, the RO, via email, requested that the C&P Service review DOD inventory of herbicide operations to determine whether herbicides were used as alleged by the Veteran. The appropriate date, location, and unit information were provided. In August 2006, the C&P Service responded to the RO's request. The C&P Service stated that a listing of herbicide use and test sites outside Vietnam was provided to its office by the DOD, and that this list contained 71 sites within the United States and in foreign countries where herbicide/Agent Orange use or testing is acknowledged, but that the list did not contain names of participants, references to routine base management activities such as range management, brush clearing, etc., and that DOD had advised that such small scale herbicide applications had not been compiled into a list. The C&P Service further stated that, regarding the Veteran's service, there was no listing of herbicide use or testing in Guam. In March 2007, the RO sent a request to JSRRC for verification of the Veteran's alleged exposure to herbicides. In a letter to the Veteran, dated in December 2009, the Veteran's attorney at that time stated that there was evidence of dioxin contamination at Anderson AFB, and that records showed that Anderson AFB was placed on the United States Environmental Protection Agency's (EPA's) National Priorities List on October 14, 1992, due to the extent of groundwater contamination under the base. The attorney also stated that the Department of Health and Human Services Agency for Toxic Substances & Disease Registry (ATSDR), performed a Public Health Assessment for Anderson AFB, listing 39 contaminated sites at the base including "Fire Training Area No. 2," which was found to contain a high amount of dioxin, and was shut down by Guam's Environmental Protection Agency in December 1988. The attorney also stated that a report by Innovest Strategic Value Advisors concerning litigation risk for Dow Chemical had stated for that soldiers stationed on Guam who handled Agent Orange have become ill and symptoms of dioxin poisoning were apparent in the general population of the island as well. In February 2010, the Veteran submitted a statement from a service comrade, J. M., which indicates that J. M. had spent 20 months in Guam with the Veteran. J. M. stated that he and the Veteran loaded weapons onto B52s, that their weapons storage area was in a heavily vegetated area of the base, that they were always spraying the area with Agent Orange, and that they transported old conventional bombs in the same trucks they used to transport the chemicals they sprayed the working area with. J. M. stated that they sprayed around their living quarters on numerous occasions, that the working trucks were at times dripping with Agent Orange, that the rifle range where they had to qualify was also a target for Agent Orange, and that the perimeter of the runways and flight line were also sprayed with Agent Orange. The Veteran has also submitted various articles and reports in connection with his claim. A news story dated in June 2003 reports that several veterans have claimed that Agent Orange and other herbicides were stored and used on Guam during the Vietnam War, and many believed that their health problems were connected to exposure to such Agent Orange. The report contains the testimonials of several veterans who claimed to have handled what they believed to be Agent Orange and/or to have been exposed to Agent Orange sprayed around the base. It also includes photographs, said to have been taken by a veteran who served in Guam in the 1960s, which are reportedly of drums that the veteran claimed contained Agent Orange. The article also states that a public health assessment published the year before by the ATSDR said that dioxins, which are a contaminant in Agent Orange, were found in soil samples from 10 sites on Anderson, with the highest level reported to be in a former fire training area on the main base where soil samples showed dioxins counted up to 19,000 parts per million. Another, undated article indicates that, according to a United States senator, a "U.S. Court of Appeals for Veterans' [sic] ruling in 2005, which concluded that a veteran contracted a disease as a result of his exposure to Agent Orange while stationed on Guam in the late 1960s, is a confirmation that toxic herbicide agents had been used on Guam." The article suggests that, during the Vietnam War Era, Guam was used as storage facility for Agent Orange, and that a CBS News report on June 12, 2005, suggested that Agent Orange was sprayed on Guam from 1955 to the 1960s. The "U.S. Court of Appeals for Veterans' ruling" cited by the article appears to be an October 2005 Board decision granting service connection for diabetes mellitus secondary to herbicide exposure, based on that veteran's claimed exposure to Agent Orange while serving at Anderson AFB in Guam from December 1966 to October 1968. The Veteran has also submitted a copy of this Board decision, as well as copies of several other Board decisions that do not involve allegations of exposure to Agent Orange at Anderson AFB or Guam. Another, undated article indicates that areas where veterans allege Agent Orange to have been used included Guam, from 1955 though the late 1960s, through spraying. A Public Health Assessment of Anderson AFB by the ATSDR indicates that on-site investigations conducted in 1993, 1999, and 2000 revealed that military practices had potentially affected soil at many areas of Anderson AFB, but that such contamination occurred in restricted areas. It also indicates that, during the decades of military use, chemicals were stored in various locations on the base and spilled during routine aircraft, vehicle, and ground maintenance operations, that soil and groundwater beneath landfills and in other areas on the base may have been contaminated over time by routine waste disposal, military operations, and occasional fuel spills. It was also noted that Anderson AFB was placed on the U.S. EPA's National Priorities list in 1992 due to the extent of groundwater contamination under the base. It was further noted that the Air Force entered into a Federal Facility Agreement with EPA in 1993, outlined a comprehensive strategy for environmental restoration of Anderson AFB, and identified sites on Anderson AFB property where hazardous materials may have been disposed of, spilled, or stored. A "Dow Chemical Investor Risk Report," dated in April 2004, authored by Innovest Strategic Value Advisors, indicates that Dow was one of the major manufacturers of Agent Orange. It also states that "[s]oldiers stationed on Guam who handled Agent Orange have become ill and symptoms of TCDD (dioxin) poisoning are apparent in the general population of the island as well," and that 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) contamination as a result of Agent Orange handling has been measured at levels implying an extraordinary level of contamination in some parts of Anderson AFB. A January 2011 response from the JSRRC states that available unit historical data does not document any Agent Orange spraying, testing, storage or usage at Anderson AFB during 1966 or 1967. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. Initially, the Board notes that the record does not reflect, and the Veteran does not assert, that prostate cancer began in service or within a year of service; the record reflects no diagnosis of prostate cancer until 2004. Rather, as noted above, the Veteran asserts that his prostate cancer is the result of Agent Orange exposure during his service at Anderson AFB from April 1966 to December 1967. However, on the question of whether the Veteran was exposed to Agent Orange during his period of service, the Board finds that the most persuasive evidence is the August 2006 C&P Service report that a listing of acknowledged herbicide use and test sites outside Vietnam provided by the DOD did not indicate herbicide use or testing in Guam, and the January 2011 response from the JSRRC stating that available unit historical data does not document any Agent Orange spraying, testing, storage or usage at Anderson AFB during 1966 or 1967. As reflected in VA's Adjudication Procedure Manual, VA's specific procedures to determine whether a veteran was exposed to herbicides where such exposure is claimed to have occurred in a vicinity other that the Republic of Vietnam, as in this case, specifically directs VA to verify potential Agent Orange exposure with DOD, via the C&P Service, and if exposure is not verified by the C&P Service's review, the JSRRC. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(o). The reports from the C&P service and the JSRRC are objective and based on unit historical data and official DOD records. The Board notes that the C&P Service's report acknowledged that the list provided by DOD did not contain references to routine base management activities such as range management, brush clearing, etc., and that DOD had advised that such small scale herbicide applications had not been compiled into a list. The Board also notes that, while the Veteran has primarily claimed that he was exposed to Agent Orange by working with the same loading equipment used to load Agent Orange and coming into contact with spilled or leaked Agent Orange in the course of these duties, he has also claimed that the area around the shop, barracks, airfield, and weapons storage was sprayed often with what he believed was Agent Orange, that he walked and worked in this area, and that there was a substance on his and his coworkers' hands, boots, and clothes every day. However, again, the January 2011 response from the JSRRC states that available unit historical data does not document any Agent Orange spraying, testing, storage or usage at Anderson AFB during 1966 or 1967. As discussed in detail below, the Board finds that the JSRRC report, based on objective unit historical data, is more probative than both the Veteran's assertions of exposure to Agent Orange, made in connection with his claim for compensation, and the evidence the Veteran has proffered in support of those assertions. The Board has considered the following assertions of the Veteran: that, during his service on Anderson AFB as a munitions and weapons specialist, he handled a large number of bombs; that he had found out that the bomb flatbeds he worked on were also used to haul barrels of Agent Orange to Anderson AFB from a naval base; that these barrels often were damaged and leaked onto flatbeds and the flatbeds had an oil on them; that he worked in areas he believed to be sprayed with Agent Orange; that there was a substance on his and his coworkers' hands, boots and clothes every day; and that he fired on a base range twice a year during this service, which he subsequently found out was an area with very high Agent Orange concentration. As a layperson the Veteran is competent to report on matters observed or within his personal knowledge, and thus is competent to assert that he was exposed to what he now thinks was Agent Orange, including substances that were in flat beds or sprayed around the base. See Layno v. Brown, 6 Vet. App. 465, 470 (1994), and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). Likewise, he is competent to say that he had been told or read that he had been in an area where he was exposed to Agent Orange, or that Agent Orange was hauled in the same trucks that he worked on. Id. Given the Veteran's service personnel records reflecting that his duties included transporting and loading conventional munitions on aircraft, as well as repair and maintenance of B-52 aircraft weapon release systems and loading equipment, the Veteran's statements regarding being in contact with flatbeds and other loading and unloading equipment is credible. However, Veteran has not claimed to have had personal knowledge that he was being exposed to Agent Orange at the time of his service in Guam. Rather, he asserts that he later discovered that he had been exposed to Agent Orange, pointing to evidence that informed him of such, which he has submitted. However, the Board finds that the evidence submitted by the Veteran indicating that he was exposed to Agent Orange during his service at Anderson AFB, Guam, is less persuasive than the C&P and JSRRC reports indicating that there was no Agent Orange spraying, testing, storage or usage at Anderson AFB during the Veteran's service there. The Board notes the February 2010 statement from J. M., which indicates that J. M and the Veteran worked together at Anderson AFB, that their weapons storage area was always being sprayed with Agent Orange, and that they transported old conventional bombs in the same trucks used to transport the chemicals they sprayed the working area with. J. M. stated that they sprayed around their living quarters on numerous occasions, that the working trucks were, at times, dripping with Agent Orange, that the rifle range where they had to qualify was also a target for Agent Orange, and that the perimeter of the runways and flight line were also sprayed with Agent Orange. However, the Board finds such statements to be, essentially, restatements of the Veteran's assertions, which the Board does finds not to be persuasive in light of the persuasive C&P Service and JSRRC reports that contradict these assertions. Insofar as J. M. claims personal knowledge of Agent Orange exposure, the Board finds that the statement is not credible; J.M. does not explain how he knew that he and the Veteran were being exposed to Agent Orange, and only makes vague assertions that they were exposed to Agent Orange when it was used and transported at their base. As these statements conflict with the C&P Service and JSRRC reports, the Board finds them not to be credible, and therefore not to carry probative weight. Regarding the undated article indicating that, according to a United States senator, a "U.S. Court of Appeals for Veterans' [sic] ruling in 2005, which concluded that a veteran contracted a disease as a result of his exposure to Agent Orange while stationed on Guam in the late 1960s, is a confirmation that toxic herbicide agents had been used on Guam," the Board finds that the article does not constitute persuasive evidence of Agent Orange use and storage at Anderson AFB. As noted above, the "U.S. Court of Appeals for Veterans' ruling" cited by the article appears to be an October 2005 Board decision granting service connection for diabetes mellitus secondary to herbicide exposure, based on that veteran's claimed exposure to Agent Orange while serving at Anderson AFB in Guam from December 1966 to October 1968, a copy of which is associated with the claims file. However, this Board decision is not a confirmation that herbicides were used in Guam in the 1960s. Pursuant to 38 C.F.R. § 20.1303 (2010), decisions of the Board are considered nonprecedential in nature. Each case is decided on the basis of the individual facts in light of the applicable law and regulations. Apart from the lack of precedential value, because different evidence in the case of another veteran may have resulted in the grant of service connection, the prior Board decision does not compel the conclusion that the facts in this case call for the grant of service connection; in this regard, the Board notes that the October 2005 Board decision discusses no report from either the C&P Service or the JSRRC indicating that there was no Agent Orange spraying, testing, storage or usage at Anderson AFB in 1966 or 1967. Therefore, while the Board has considered the prior Board decision, it is not binding and does not control the outcome of this appeal; rather, the facts of this particular case must be determinative. Furthermore, regarding the undated article's reports that, during the Vietnam War Era, Guam was used as storage facility of Agent Orange, and that a CBS News report on June 12, 2005, suggested that Agent Orange was sprayed on Guam from 1955 to the 1960s, neither the sources of these assertions, nor the evidence used by such sources to support such assertions, are mentioned in the article or apparent from any evidence of record. The Board thus finds this article to be of little probative weight. The Board has also considered the June 2003 news story reporting that several veterans have claimed that Agent Orange and other herbicides were stored and used on Guam during the Vietnam War, and many believe that health problems were connected to such Agent Orange exposure, and containing testimonials from such veterans, and including photographs, said to have been taken by a veteran who served in Guam in the 1960s, of drums that such veteran claimed contained Agent Orange. Again, however, the Board finds that the subjective and self-serving testimonials of the veterans mentioned in the article are not persuasive evidence in this appeal; no such veteran asserted personal knowledge of Agent Orange exposure at the time of service, but rather asserted that they believed that they were exposed to Agent Orange, based on information they had been given after service. The Board also notes that the images contained in the photograph said to have been taken by a veteran who served in Guam in the 1960s of drums claimed to have contained Agent Orange are not easily discernable, and that, regardless, there is no indication that such photograph has been verified by any official source to show Agent Orange at Anderson AFB in 1966 or 1967. Thus, the Board finds that such the evidence is less probative that the reports of the C&P Service and the JSRRC, which are objective and based on review of official records of Agent Orange use and storage. The Board has further considered the ATSDR Public Health Assessment of Anderson AFB of record. The ATSDR Public Health Assessment indicates that on-site investigations conducted in 1993, 1999, and 2000 released that decades of military practices had potentially affected soil at many areas of Anderson AFB, that chemicals were stored in various location on the base and spilled during routine aircraft, vehicle, and ground maintenance operations, and that soil and groundwater beneath landfills and in other areas on the base may have been contaminated over time by routine waste disposal, military operations, and occasional fuel spills. However, this report does not state that that Agent Orange was present at Anderson AFB in 1966 or 1967, or that any such soil and water contamination-found more than 25 years later-is the result of the storage or usage of Agent Orange; Agent Orange is not mentioned in the report at all. Thus, the Board finds that such report is not very probative on the question of whether the Veteran was exposed to Agent Orange during his period of service, and far less probative than the C&P Service and JSRRC reports. The Board further notes the reports, referenced by the Veteran's attorney in December 2009, and in the June 2003 news article, from ATSDR, indicating that a public health assessment by the ATSDR stated that dioxins, which are reportedly a contaminant in Agent Orange, were found in soil samples from 10 sites on Anderson, with the highest level reported to be in a former fire training area on the main base, and that Anderson AFB was placed on the EPA's National Priorities List on October 14, 1992, due to the extent of groundwater contamination under the base. However, the Board finds that any such findings of "dioxin" in the soil at Anderson AFB in 2002 is not persuasive evidence that Agent Orange was sprayed during Veteran's service in 1966 and 1967, or that the Veteran was personally exposed to Agent Orange during period of service. There is no evidence that such referenced soil samples, contaminated with what is identified as "dioxin," and tested over 25 years after the Veteran's period of service, have ever been confirmed by ATSDR or any official agency or source to have been the result of Agent Orange usage or storing. Rather, according to the ATSDR Public Health Assessment of record, contaminants have been thought to be due to decades of various military uses on Anderson AFB, including routine waste disposal, military operations, and occasional fuel spills. In this regard, the Board notes that a fire training area was found to have the highest level of dioxins, according to the December 2009 attorney letter and June 2003 news article, but that the Veteran has not asserted, and personnel records do not reflect, that he was involved in fire fighting operations while at Anderson AFB; the fact that the strongest concentration of "dioxins" in the soil was at a fire training area tends to suggest that such contaminants were the result of fuels and other such chemicals rather than the spraying or storage of Agent Orange. Thus, again, the Board finds such cited information of dioxin contamination on Anderson AFB to be of little probative value relative to the C&P Service and JSRRC reports, which clearly state that military records do not show that Agent Orange was used or stored at Anderson AFB in 1966 and 1967. The Board has also considered the April 2004 "Dow Chemical Investor Risk Report" from Innovest Strategic Value Advisors, stating that "[s]oldiers stationed on Guam who handled Agent Orange have become ill and symptoms of TCDD (dioxin) poisoning are apparent in the general population of the island as well," and that TCDD contamination as a result of Agent Orange handling has been measured at levels implying an extraordinary level of contamination in some parts of Anderson AFB. However, the April 2004 report was prepared by a company for financial investors, and neither the scientific data used in this investment report nor the basis for the assumption that soldiers stationed in Guam handled Agent Orange was provided, which calls into question the validity of the report. Furthermore, the report again discusses dioxin contamination on Anderson AFB found many years after the Veteran's period of service in 1966 and 1967. Thus, the Board finds that this evidence carries little probative weight that the Veteran was exposed to Agent Orange during his service at Anderson AFB in 1966 and 1967, relative to that carried by the C&P Service and JSRRC reports. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Given the above, the Board has determined that the reports of the C&P Service and JSRRC-which state that the available DOD records and unit historical data does not document any Agent Orange spraying, testing, storage or usage at Anderson AFB during 1966 or 1967-are more persuasive as to whether Agent Orange was used on Anderson AFB, Guam, during the Veteran's service there than the evidence suggesting that Agent Orange was used or stored at Anderson AFB during that time period. Thus, the Board finds that the weight of the evidence demonstrates that the Veteran was not exposed to Agent Orange during his period of service. As a final matter, the Board notes the opinion letters of Dr. K. suggesting that the Veteran's prostate cancer was related to Agent Orange exposure, particularly in light of the cancer's aggressive, significantly advanced nature, which he stated was one of the most common findings in Vietnam veterans that had been exposed to Agent Orange. However, as the Board finds that the evidence shows that the Veteran was not exposed to Agent Orange in service, the opinions of Dr. K. are of limited probative value, and do not provide a basis for a grant of service connection. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993), Swann v. Brown, 5 Vet. App. 229, 233 (1993), and Black v. Brown, 5 Vet. App. 177, 180 (1993) (as a medical opinion can be no better than the facts alleged by a veteran, an opinion based on an inaccurate factual premise has no probative value). Moreover, in this regard, the Board points out that Dr. K. based his opinion on the reported history that the Veteran was involved with the loading of Agent Orange herbicide onto military aircraft on a daily basis and was required to clean up the contents of several of the barrels that had broke open. However, the record does not reflect, and the Veteran has not asserted, that the Veteran was ever involved in handling, loading, or cleaning up Agent Orange. In this regard, the Veteran, in a January 2010 statement, specifically pointed out that Dr. K. mistakenly stated that the Veteran loaded Agent Orange onto aircraft; rather, according to the Veteran, he loaded weapons onto aircraft using the same flatbed trucks and loading equipment used to carry and load Agent Orange. Thus, again, the Board finds that the opinions of Dr. K. do not provide a basis for a grant of service connection. Id. For all the foregoing reasons, the Board finds that the claim for service connection for prostate cancer, claimed as due to herbicide exposure, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for prostate cancer, claimed as due to herbicide exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs