Citation Nr: 1309554 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-30 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for residuals of prostate cancer, secondary to in-service chemical and/or herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and S.R. ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1960 to March 1961 and from October 1961 to August 1962. This matter is before the Board of Veterans' Appeals (the Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the Veteran's service-connection claim for prostate cancer residuals. The Veteran disagreed with the RO's determination and perfected an appeal as to this issue. The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the North Little Rock RO in February 2011. A transcript of the hearing has been associated with the Veteran's VA claims folder. In correspondence received by the Board in January 2013, the Veteran indicated that he was let go from his part time employment "due to fatigue and pain associated with my health as described in my claim with the VA." See Veteran's January 2013 letter. By this statement, it appears that the Veteran has reasonably raised a claim for a total disability rating based on individual unemployability (TDIU). The agency of original jurisdiction has not had an opportunity to adjudicate this claim in the first instance. Therefore, it is referred to the AOJ for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (finding that the Board does not have jurisdiction of issues not yet adjudicated by the RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record supports a finding that the Veteran's prostate cancer residuals are related to in-service chemical exposures occurring in performance of his duties as a utilities worker at Pine Bluff Arsenal, Arkansas. CONCLUSION OF LAW Service connection for prostate cancer residuals is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim for service connection for his prostate cancer residuals given the favorable nature of the Board's decision. II. Legal Criteria and Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish service connection a claimant must generally 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran asserts that he developed prostate cancer as a result of exposure to hazardous chemicals or toxins during his period of active duty service. In particular, he asserts that he was exposed to herbicides such as Agent Orange, as well as other chemicals to include polychlorinated biphenyl (PCB), at Pine Bluff Arsenal in the early 1960s. It is undisputed that the Veteran developed prostate cancer in 2002, and underwent a prostatectomy shortly after diagnosis. Residual effects of the surgery include erectile dysfunction and incontinence. See February 2008 and June 2008 letters from Dr. T.D.L. Thus, Shedden element (1), present disability, is satisfied. With respect to Shedden element (2), in-service disease or injury, the Veteran's service treatment records do not indicate that the Veteran experienced any problems with his prostate during his period of active duty service, and the Veteran does not so contend. Rather, as noted above, the Veteran asserts that he was exposed to hazardous chemicals in-service while serving at Pine Bluff Arsenal as a utilities worker testing water conditions. Although the evidence does not definitively show that the Veteran served at Pine Bluff Arsenal, the Veteran has submitted statements from multiple fellow servicemembers, to include his commanding officer, J.T.R., who each claim to have served with the Veteran at Pine Bluff Arsenal in the 489th Combat Engineer Battalion. All servicemembers recall the Veteran having duties testing and treating the water supply at Pine Bluff Arsenal. These lay witnesses are competent to provide information regarding facts and circumstances that they can observe and describe. 38 C.F.R. § 3.159(a)(2). The Veteran's DD-214 confirms a military occupational specialty as a utilities worker with the 489th Combat Engineer Battalion, and the Veteran's service entrance physical [occurring in June 1960] took place at Pine Bluff Arsenal. In light of this corroborating evidence, the Board will resolve all doubt in the Veteran's favor and find that the Veteran was stationed at Pine Bluff Arsenal for a portion of his service. Having established the Veteran's presence at Pine Bluff Arsenal, the next key question is whether the Veteran was in fact exposed to hazardous chemicals during his service. He has specifically asserted exposure to Agent Orange, as well as to PCB, but he has recently broadened the scope of his exposure to include other toxins in general. See February 2011 Hearing Transcript [Tr.] at 2; see also Veteran's January 2013 letter (referencing residuals of his prostate surgery due to exposure to carcinogenic chemicals while in the Army). The evidence of record weighs against a finding that the Veteran was exposed to Agent Orange during service. Indeed, information obtained from the Department of Defense (DoD) specifically indicates that its records do not show any "use, testing, or storage of tactical herbicides, such as Agent Orange, at Pine Bluff Arsenal, Arkansas." The report adds that, "the recently acquired DoD monographs do not identify Pine Bluff as being associated with tactical herbicides." See March 2009 email entitled "Review of DoD's inventory of herbicide operations." In April 2009, the U.S. Armed Services Center for Research of Unit Records (USASCRUR) similarly noted that historical records, as well as records from the U.S. Army Chemical Materials Agency do not document "the spraying, testing, transporting, storage, or usage of Agent Orange at Pine Bluff, Arkansas." Finally, an April 2010 letter from the Chief Legal Counsel at Pine Bluff Arsenal states that "no records could be found indicating that Pine Bluff Arsenal produced, stored, or used" Agent Orange. The RO also asked the National Personnel Records Center (NPRC) to provide any documents demonstrating that the Veteran was exposed to herbicides, but no records of exposure were found. See December 2008 Request for Information. The Board recognizes that the Veteran recently participated in an Agent Orange Registry, that his commanding officer indicated that Agent Orange was stored and tested at Pine Bluff Arsenal, and that one submitted Internet printout indicated that Pine Bluff Arsenal "created several strains of biological weapons, including Agent Orange" during the years the Veteran was on duty. The Board nevertheless finds that the probative value of these potential exposure indicators is greatly outweighed by the historical research obtained from multiple official sources discussed above. Indeed, mere participation in the Agent Orange registry examination in no way confirms Agent Orange exposure. Further, the Veteran's commanding officer, J.T.R., provided no indication as to how he had concluded that the chemical he observed being tested in Pine Bluff labs was in fact Agent Orange, as opposed to any other chemical or chemicals. Finally, the Internet printout described above includes no reference to any outside authority confirming that Agent Orange was in fact created or stored at Pine Bluff Arsenal. The Board accordingly finds that the Veteran's claimed exposure to Agent Orange is without merit. That stated, the evidence of record is at the very least in equipoise as to whether the Veteran was exposed to other toxic chemicals during service, to include PCB. Indeed, the DoD letter referenced above specified that "the Pine Bluff installation was for chemical and biological weapons." See March 2009 email entitled "Review of DoD's inventory of herbicide operations." The Chief Legal Counsel at Pine Bluff Arsenal indicated that "[c]ommon equipment and products containing PCB could have been present at the Arsenal during [the Veteran's] tour." See April 2010 letter. However, there is no record verifying that the Veteran was in fact exposed to PCB at Pine Bluff Arsenal. The Veteran has submitted a number of studies indicating that chemical warfare material was stored at Pine Bluff Arsenal, and that the National Center for Toxicological Research (NCTR) was once part of the Army's Pine Bluff Arsenal, and was used for research into biological pathogens and the production of chemical warfare agents up to 1969. See February 1997 Chapter Report by the U.S. General Accounting Office; see also Internet report from the Encyclopedia of Arkansas History & Culture pertaining to the NCTR. The Veteran has also submitted a number of reports from the Environmental Protection Agency (EPA) having to do with more recent attempts to clean up chemical waste and pollutants from Pine Bluff Arsenal. Indeed, in 2002, the EPA issued a disposal approval to allow for the incineration of certain chemical agent rockets containing PCBs at Pine Bluff Arsenal. An EPA PCB Waste Handlers Database indicates that the Pine Bluff Arsenal was listed as a generator, storer and disposer of PCB. Notably, an Installation Action Plan dated in 2009 posted on the Army's website indicated that groundwater tests at Pine Bluff Arsenal taken as early as 1966 demonstrated high levels of sulfate, phosphorus, nitrates and chlorides. After cleanup from the 1970s to today, a number of contaminants had been identified in the groundwater and soil, in the lagoons and basins located at Pine Bluff Arsenal, to include lead, chlorine, bomb wash, lewisite, and mercury. In one example, a four-acre barren site at Pine Bluff Arsenal was discovered with a three-foot layer of thermite and bomb wash residue, amounting to approximately 44,000 cubic yards of the contaminants and contaminated soil. The report indicated that in the 1940s and early 1950s, the site was used as a dump for the Quality Assurance Drop Tower, and from 1959 to 1961 for bomb wash from the Benzilate Pond. See 2009 Pine Bluff Arsenal Installation Action Plan, at 17. As noted above, the Veteran has submitted a number of testimonials from fellow servicemembers attesting not only to his presence at Pine Bluff Arsenal during his periods of active duty in the 1960s, but also to the fact that the Veteran's main job at Pine Bluff was to test the water at all facilities for contaminants. His commanding officer, J.T.R., specified that the Veteran's duties as a water treatment operator required that he go into "most all of the buildings and labs, as well as other areas, of the Arsenal to perform his duties." J.T.R. indicated that "we knew the Pine Bluff Arsenal contained many hazardous materials; however, we did not realize the toxicity of many of them." He stated that the Veteran was required to take water samples in many areas where these chemicals and agents were stored or tested. See August 2010 letter from J.T.R. Significantly, the Veteran testified that he tested water all over the base, found contaminants in the waters, lagoons and labs, and did not wear protective clothing because he was unaware of the toxicity of what he was handling. See February 2011 Hearing Tr. at 19. The Veteran and his fellow servicemembers are competent to attest to what they observed and experienced during their periods of active duty service. 38 C.F.R. § 3.159(a)(2). In light of the fact that the Veteran's DD-214 confirms an occupational specialty of utilities worker, that his fellow servicemembers attest to serving with the Veteran at Pine Bluff Arsenal while he was testing water for contaminants, and that the historical studies submitted by the Veteran confirm that Pine Bluff Arsenal was used as a facility to test and store chemical and biological weapons in the 1950s and 60s, with decades of cleanup required due to contaminated groundwater and soil as a result of this testing and storing, the Board finds no reason to doubt the credibility of the Veteran's assertion that he was exposed to toxic chemicals other than Agent Orange while performing his duties as a water treatment operator during his time at Pine Bluff Arsenal. Indeed, at the very least, the evidence for and against a finding of in-service chemical exposure is in relative equipoise. Resolving all doubt in the Veteran's favor, the Board finds that Shedden element (2), in-service injury, is satisfied as well. With respect to Shedden element (3), nexus or relationship, one of the Veteran's treatment physicians, Dr. J.R.O., submitted a statement on the Veteran's behalf in February 2010 noting that the Veteran suffers from residual voiding dysfunction and erectile dysfunction as a result of his prostatectomy. Dr. J.R.O. indicated that the Veteran worked at the Pine Bluff Arsenal during his service, and recognized what the Board has conceded above-namely, that "he was exposed to PCBs and toxins which are known carcinogens." Dr. J.R.O. concluded that "this exposure more than likely caused or greatly contributed to [the Veteran] developing prostate[] cancer." See February 2010 letter from Dr. J.R.O. No other medical opinion of record is contrary to that of Dr. J.R.O. Rather, Dr. J.R.O's opinion has some support in the record by the opinion of another treating physician, Dr. T.D.L., who in less specific terms noted that "[t]here is a possibility that [the Veteran's] prostate cancer could be directly related to his . . . training at the Pine Bluff Arsenal. He was exposed to chemicals such as PCBs." See June 2008 letter from Dr. T.D.L. Thus, the medical evidence of record includes a positive link between the Veteran's current prostate cancer residuals and his in-service exposure to chemicals. As such, Shedden element (3) is met. Therefore, all elements of the claim for service connection for residuals of prostate cancer are satisfied. The benefit sought on appeal is allowed. ORDER Service connection for prostate cancer residuals is granted. ____________________________________________ M. Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs