Citation Nr: 1331795 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 11-14 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for prostate cancer, including as due to herbicide exposure and exposure to hazardous materials. 2. Entitlement to service connection for renal cancer, including as due to herbicide exposure and exposure to hazardous materials. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1952 to April 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Previously, the Board remanded this appeal for further development in March 2012. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran requested a Travel Board hearing in conjunction with his appeal, but withdrew that request in December 2011. 38 C.F.R. § 20.704(e) (2013). Please note 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). The issue of entitlement to service connection for renal cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no evidence to suggest that the Veteran was exposed to herbicides during active duty, including while stationed in Korea. 2. The Veteran's prostate cancer was not incurred during active duty, is not the result of an in-service event or injury, including exposure to DDT and benzene, and is not otherwise etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, the Veteran was sent a letter in August 2009 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of the Veteran's private medical treatment. A June 2013 medical etiology opinion, as requested by the March 2012 remand, is of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's service personnel records are not available, having been destroyed in the 1974 fire at the National Personnel Records Center in St. Louis. VA requested that the Veteran submit all personnel records, and he submitted what he had in his possession, indicating that he did not have any further of the requested documents. Notably, in this case, as VA is conceding the exposure to chemicals and pesticides that the Veteran claims he experienced, and his time of service overseas was well prior to any recognized use of herbicides in Korea, 38 C.F.R. § 3.307(a)(6)(iv), the Veteran is not prejudiced by the fact that the personnel records are missing. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim for prostate cancer. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Diseases associated with exposure to certain herbicide agents used in support of military operations will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a compensable degree within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). The list of diseases associated with herbicide exposure for purposes of the presumption include, among others, prostate cancer. 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval or air service, served in a unit that the Department of Defense has determined operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during the period from April 1, 1968 until August 31, 1971, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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. 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; 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). Initially, the Board concedes that the Veteran has a current diagnosis of prostate cancer; he was diagnosed with prostate cancer in 1992. Thus, the Board finds that the first prong of service connection, i.e., the existence of a present disability, has been met. See Holton, 557 F.3d at 1366. The Veteran does not claim, and the evidence does not otherwise suggest, that his prostate cancer disability began during service. The Board notes that there is no notation in the service treatment records that would suggest the onset of the disease, or any treatment thereof, during service, and there is no lay or medical evidence to the contrary. The Veteran's claim rests on his theory that in-service exposures to herbicides, pesticides, and other chemicals, including benzene, caused his prostate cancer. First, concerning herbicide exposure, the Board finds that there is no evidence to support the Veteran's claim that he was exposed to herbicides while stationed in Korea, or at any other time during his service. The presumption of exposure to herbicides for service in Korea only applies to Veterans that served in a unit that the Department of Defense has determined operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during the period from April 1, 1968 until August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv). As the Veteran served on active duty from April 1952 to April 1956, the presumption of exposure is not applicable to his claim. Further, the Veteran has not presented any other evidence to indicate that he was exposed to herbicides. Notably, in a May 2012 statement describing exposures while in the military, the Veteran did not identify any herbicide exposure. To the extent that the Veteran has claimed exposure to herbicides (as he did in his claim for service connection), he has provided nothing to support that assertion. Based on the foregoing, the Board finds that the evidence is against a finding that the Veteran was ever exposed to herbicides while in service. The finding that the Veteran does not warrant presumptive service connection based on herbicide exposure does not preclude the possibility of service connection on a direct basis, and further consideration of the matter is necessary. See Combee v. Brown, 34 F.3d 1039, 1043 (1994) (holding that regulations governing presumptive service connection do not preclude a Veteran from establishing service connection with proof of actual direct causation). A different finding is warranted concerning whether the Veteran was exposed to benzene and DDT; the totality of the evidence regarding these exposures weighs in favor of finding that he was exposed to DDT and benzene during military service. Regarding benzene exposure, the Veteran's DD214 indicates that his primary military occupational specialty was in "field maintenance." That specialty is consistent with the Veteran's description of his duties. In a May 2012 statement, he indicated that while working in a field maintenance squadron, they used "benzene, gunk, acetone, solvents, denatured alcohol, and other carcinogens to clean office equipment and other machinery." Concerning DDT exposure, he asserted in May 2012 that while stationed at Keesler Air Force Base, his unit was given "DDT bombs" because of the infestation of mosquitos and other insects. Similarly, they were provided "DDT bombs" in Korea to kill lice and other insects. He only had to request the product from supply to obtain it, and did so "constantly" because of the unsanitary conditions. Contrary to the Veteran's assertions, VA made a formal finding in September 2013 that there is insufficient evidence to verify that the Veteran was exposed to chemical solvents during active duty; the memorandum did not address whether there was sufficient evidence to verify exposure to DDT during service. With regard to both benzene and DDT, the Veteran's testimony is credible and consistent with his service. He is competent to identify DDT, as he ordered the DDT bombs to specifically deal with insects, and benzene, which he used in the course of his military duties. There is nothing to detract from the credibility of his descriptions of his exposures. Although VA found in September 2013 that there was insufficient evidence to verify his exposures, that is not the same as a finding that he was not exposed. Also relevant to the exposure issue, the Board notes that the Veteran's service personnel records were destroyed in a fire at the National Personnel Records Center through no fault of the Veteran's. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (noting that where service records have been destroyed, the Board's duty to apply the benefit of the doubt doctrine is heightened). The Board finds that the Veteran's credible statements concerning his exposure outweigh VA's September 2013 formal finding. Therefore, the Board finds that there is sufficient evidence to concede the Veteran's exposure to DDT and benzene during service. As the Veteran has not identified any other chemicals to which he claims exposure, however, there is insufficient evidence to concede exposure to anything other than benzene and DDT. As the Board is conceding the Veteran's exposure to DDT and benzene while in service, he meets the second prong of service connection, an event or injury in service. 38 C.F.R. § 3.303; see Holton, 557 F.3d at 1366. The Veteran has not suggested, and the evidence does not indicate, any other event or injury in service (other than herbicide exposure, as addressed above), to which his prostate cancer could be related for purposes of service connection. Ultimately there is not, however, evidence to support a nexus between the Veteran's prostate cancer and his exposure to DDT or benzene. As discussed above, the Veteran was diagnosed with prostate cancer in 1992. In April 2011, a private physician provided the following statement in a letter to the Veteran: In conversation you state that you were exposed to DDT, benzene and solvents while serving in Korea. These exposures may have had a role in you developing your . . . prostate cancer[]. In 1992, you were diagnosed with a Gleason 4 adenocarcinoma of the prostate. This cancer recurred in 2002 as a Gleason 6. VA obtained a medical opinion concerning whether exposures to pesticides or chemical solvents, including benzene, could link the Veteran's prostate cancer diagnosis with his military service. The examiner addressed the question of whether there was any scientific or medical data to support a link between those exposures and prostate cancer, providing the following opinion: Exposure to pesticides and/or benzene is not a recognized risk factor for prostate cancer. There is inconsistent epidemiologic data about a possible link between prostate cancer and exposure to DDT, benzene or other chemical solvents. This is from studies of populations of workers with many years of exposure to pesticides, unlike the Veteran, who had 1 year of exposure. These conclusions are considered to require further studies before becoming accepted. It is less likely as not that the Veteran's prostate cancer is related to service, including any exposure to DDT, benzene, or other chemical solvents therein[,] or otherwise related to service. The examiner then cited three studies addressing the causes of prostate cancer. The preponderance of the evidence is against a finding that the Veteran's exposures to DDT or benzene is etiologically related to his post-service development of prostate cancer. The April 2011 letter from the private physician is not a probative opinion concerning the etiology of the Veteran's prostate cancer. The letter only indicated that the Veteran's exposures "may have had a role" in his development of prostate cancer; it did not indicate that such a relationship was "at least as likely as not." Further, the physician provided no rationale in support of his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). Additionally, the Veteran, as a layperson, is not competent to identify an etiological relationship between prostate cancer and exposure to DDT and benzene. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The one probative medical opinion of record is the June 2013 VA opinion. That examiner, after consideration of the Veteran's exposures and his subsequent development of prostate cancer, as well as epidemiological studies addressing the possible relationship, opined that it was "less likely than not" that there was an etiological relationship between the exposures and the cancer diagnosis. The opinion is factually accurate, fully articulated, and based on sound reasons and bases. See Nieves-Rodriguez, 22 Vet. App. at 302. Based on that opinion, the Board finds that the preponderance of the evidence is against the Veteran's claim, and that service connection for prostate cancer is not warranted. 38 C.F.R. § 3.303. 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 Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for prostate cancer is denied. REMAND The issue of entitlement to service connection for renal cancer must be remanded so that the RO/AMC can return the June 2013 medical opinion to the provider who drafted it for an addendum. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). The June 2013 opinion addressing whether the Veteran's renal cancer was related to service, including exposures to pesticides and benzene in service, merely stated that "[t]here is no data to support a link between the Veteran's kidney cancer and exposure to DDT, benzene, or other chemical solvents." Other than the vague reference to "data," (which could refer to epidemiological data, but which the medical provider did not make clear), there is no rationale provided in support of the opinion. As a result, the opinion is not sufficiently probative, and is therefore inadequate to adjudicate the claim. See Nieves-Rodriguez, 22 Vet. App. at 302. Further, it is evident to the Board that there is at least some possible link between benzene exposure and renal cancer. For example, the American Cancer Society indicates that "[m]any studies have suggested that workplace exposure to certain substances [including benzene] increases the risk for renal cell carcinoma." See American Cancer Society, What are the risk factors for kidney cancer?, http://www.cancer.org/cancer/kidneycancer/detailedguide/kidney-cancer-adult-risk-factors, last visited Sept. 30, 2013. A similar finding is reported at WebMD. See WebMD, Kidney Cancer Symptoms, Diagnosis, and Treatment, http://www. webmd.com/cancer/understanding-kidney-cancer, last visited Sept. 30, 2013. Therefore, on remand, VA should obtain an addendum opinion regarding the etiology of the Veteran's renal cancer that is fully articulated and based on a thorough rationale. In providing the requested opinion, the examiner should observe that the Board has conceded exposure to DDT and benzene while on active duty. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who provided the June 2013 opinion addressing the etiology of the appellant's renal cancer. The examiner must review the June 2013 report, the claims file, any relevant documents on Virtual VA, and the directives of this Remand. The ensuing addendum must indicate that such a review occurred. The examiner must then address the following question, with a fully supported rationale based on his training, knowledge, and experience, medical literature, and other acceptable medical resources: Is it at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed renal cancer is etiologically related to the Veteran's exposures to DDT and benzene during active duty service? The examiner must provide a full rationale in support of his opinion. If he cannot answer the question presented without resort to speculation, he must indicate why a response would be speculative. If the June 2013 examiner is unavailable, then the requested opinion must be obtained from a similarly qualified medical professional. No examination should be performed unless deemed necessary by a medical professional for purposes of addressing the issues presented. 2. After the development requested has been completed, the RO should review the addendum to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. Then, readjudicate the claim. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs