Citation Nr: 1341645	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  07-06 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for prostate cancer, secondary to herbicide and/or chemical exposure.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

The Veteran served on active duty from August 1961 to August 1963.

This matter come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the VA RO in Houston, Texas, which denied the Veteran's claim for service connection for prostate cancer respectively, claimed as secondary to herbicide and/or chemical exposure. 

The Veteran testified at a March 2010 Travel Board hearing held at the Houston, Texas, RO.  A transcript of that hearing has been associated with the claims file.

In November 2010, March 2012, and March 2013, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision.

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).


FINDINGS OF FACT

1.  Service personnel records do not show that the Veteran served in or visited the Republic of Vietnam; therefore, exposure to herbicides may not be presumed.

2.  The competent evidence of record does not indicate that a nexus exists between the Veteran's military service and his current prostate cancer.

CONCLUSION OF LAW

Prostate cancer was not incurred in or aggravated by active military service and may not be presumed to have been incurred therein, to include as due to herbicide exposure.  38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Stegall Concerns

As noted above, this matter has been remanded on multiple occasions.  In November 2011, the Board remanded this matter to obtain details from the Veteran regarding his exposure to herbicides and other chemicals during service, attempt to verify his claimed exposure, provide the Veteran with an examination to determine whether his current prostate cancer was related to service, and to readjudicate the claim.  Subsequently, in November 2010 and December 2010 letters, the Appeals Management Center (AMC) requested that the Veteran submit detailed information regarding his exposure to substance during service.  The Veteran submitted information about his exposure, and in response to the AMC's request the service department forwarded the Veteran's service personnel records, he was afforded an examination in March 2011, and his claim was readjudicated in an October 2011 supplemental statement of the case. 

In March 2012, the Board remanded his claim to send the Veteran an appropriate notification letter with release forms to obtain information, obtain any records on his behalf, and readjudicate the claim.  In March 2012, April 2012, and May 2012, the AMC sent the Veteran appropriate notification letters pertaining to his claim with release forms.  Also, private treatment records were obtained, and his claim was readjudicated in an October 2012 supplemental statement of the case. 

Most recently, in March 2013, the Board instructed the AMC to obtain treatment records from Dr. C.B. and any outstanding VA records, provide the Veteran an additional examination, and to readjudicate the claim.  Thereafter, the AMC sent the Veteran a letter in March 2013 requesting he complete an authorization form for Dr. C.B.'s records; to date the Veteran has not submitted the completed form.  Additional VA treatment records were associated with the claims folder, he was provided another examination in April 2013 in compliance with the Board's remand instructions, and the claim was readjudicated in a May 2013 supplemental statement of the case.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Duties to Notify and Assist

In correspondence dated in December 2005, prior to the March 2006 rating decision, May 2006, and March 2012, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013).  Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The March 2012 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated in various supplemental statements of the case, most recently in May 2013.  See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case).  

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013).  All identified and available treatment records have been secured.  As noted above, the Board remanded this matter on several occasions to obtain evidence, most recently in March 2013.  Pursuant to that remand, the AMC sent the Veteran a letter in March 2013 requesting he submit an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for Dr. C.B.'s records.  To date, the Veteran has not returned the completed release form.  The United States Court of Appeals for Veterans Claims has held that "[t]he duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193   (1991).  Therefore, all efforts to assist the Veteran obtain additional evidence have been exhausted.  

Additionally, the Veteran was afforded two VA examinations for his claimed disability.  In the March 2013 remand, the Board determined that the March 2011 examination report was inadequate as the basis of the Veteran's opinion was incorrect (i.e. exposure to agent orange during service).  The Veteran was provided another examination in April 2013.  A review of the VA examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record and accepted medical principles and literature.  The Board concludes that the examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2013); Barr, 21 Vet. App. at 312. 

Also, as noted above, the Veteran presented testimony in a travel board hearing before the undersigned.  In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2)  requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation.  These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  This was done during the March 2010 hearing before the Board.  Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate this claim.  Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) , nor have they identified any prejudice in the conducting of the Board hearing.  Thus, the duties to notify and assist have been met.

Analysis

The Veteran is seeking entitlement to service connection for prostate cancer, secondary to herbicide and/or chemical exposure.  

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 (2013).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2013).

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may be granted on a presumptive basis for certain chronic diseases, including malignant tumors, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. 
§ 3.309(e) (2013), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service.  While prostate cancer is listed under 38 C.F.R. § 3.309(e) as a disease associated with herbicide exposure, skin cancer and erectile dysfunction are not listed under 38 C.F.R. § 3.309(e) as diseases associated with herbicide exposure. 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d) (2013).

The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era.  38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013).  A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service.

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, 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)(iii) (2011).  Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f) (West 2002).

"Service in the Republic of Vietnam," includes 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)(iii) (2011).  The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic.  See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam.

Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. 
§ 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period).  See VAOPGCPREC 27-97.

In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. (2008), the Federal Circuit held that VA's interpretation of the phrase "served in the Republic of Vietnam," to the effect that a veteran must set foot on Vietnamese soil, was entitled to deference by the courts.

In this case, the Veteran does not contend, nor does the evidence demonstrate, that he had service in Vietnam.  Therefore, the Board finds that there is no credible evidence that the Veteran served in Vietnam to warrant presumptive service connection for prostate cancer based on herbicide exposure therein.  See 38 C.F.R. 
§ 3.309(e) (2013).  

The Veteran asserts that he was exposed to agent orange during service.  At his March 2010 hearing, the Veteran testified that when he was a Quartermaster he was loading things from a warehouse to trucks two or three times a week at Fort Lee and Fort Bragg.  During this time, another service member told him that they were handling agent orange and to be careful.  The Board finds that the Veteran's contentions as to exposure to agent orange is tenuous at best.  Essentially, it is based upon hearsay.  There is no indication that the Veteran or the other service member, who relayed to him that they were dealing with agent orange, had any knowledge to recognize agent orange.  Accordingly, the Veteran's assertions in this regard do not rise to the level of equipoise with respect to the question of whether he was exposed to agent orange.  Furthermore, such contentions are not supported by his service records.  Accordingly, his statements regarding in-service exposure to herbicides have no probative value.  

Although the Veteran has not been shown to warrant a regulatory presumption of service connection for his claimed disability as a result of in-service herbicide exposure, his claim must still be reviewed to determine if service connection can be established on a direct basis or based on applicable presumptions established for chronic disease under 38 C.F.R. § 3.309(a).  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation).

The Veteran asserts that was also exposed to other chemicals, to include diesel fuel, gasoline, asbestos, and petroleum tank residue, while stationed at bases in the U.S.  

As detailed above, in order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2).  See Hickson, supra.

In this case, it is undisputed that the Veteran has prostate cancer as is evidenced by the numerous treatment records.  Hickson element (1) is therefore satisfied.

Concerning Hickson element (2), in-service incurrence of disease or injury, the Board notes that although service treatment records are negative for any findings related to the prostate, his service records support his assertion that he was exposed to chemicals, in particular to diesel fuel, during service.  Therefore, Hickson element (2) is satisfied. 

With respect to crucial Hickson element (3), medical nexus, the question presented, i.e., the relationship, if any, between the Veteran's current disability and his military service, is essentially medical in nature.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

There are three reports of record which conclude that the Veteran's prostate cancer was related to agent orange exposure in service.  In a May 2010 letter, Dr. R.J.G. stated that the Veteran was diagnosed with prostate cancer in 2005, and that if in fact the Veteran had been exposed to agent orange during service then that exposure could be related to his prostate cancer.  Likewise, in a June 2010 letter, Dr. R.G.M. opined that the Veteran's exposure to agent orange could be linked to his prostate cancer.  Additionally, in March 2011, a VA examiner  determined that it was at least as likely as not that the Veteran's prostate cancer was related to his service in the military.  The examiner based this opinion on the fact that VA has established that there is a link between agent orange and prostate cancer.  

The Board affords these opinions little probative value.  The evidence of record does not demonstrate that the Veteran was exposed to agent orange in service, and therefore the Board does not find that any of these opinions are sufficient to grant service connection for prostate cancer as a result of in-service exposure to agent orange.

Most recently, the Veteran was afforded another VA examination in April 2013.  Based upon review of the claims folder and evaluation of the Veteran, the examiner opined that it was less likely than not that prostate cancer was incurred in or caused by service.  The examiner noted the Veteran's service in a Quartermaster Company in service in which he worked with various fuels, toxins, and fuel storage tanks, and his diagnosis of adenocarcinoma of the prostate in 2005.  In reaching his conclusion, he referenced the following:  

1)  Diesel fuel-Sudler, et al in Scandinavian Journal of Work Enviromental [sic] Health 1998; Dec: (6): 486-94 found only that exposure to diesel fuel or fumes may be associated with development of prostate cancer.  WHO (World Health Organization) in Volume 45 stated that there was inadequate evidence for the carcinogenesis in humans of diesel fuel.
2)  Diesel exhaust-American Cancer Society on 6/15/ 2012 quoted WHO statement that indicated that diesel fuel exhaust was carcinogenic and there was sufficient evidence for a link with lung cancer and limited evidence it increased risk of bladder cancer; however, there was no mention of a link with prostate cancer.
3)  Asbestos-Asbestos.com website stated that many studies have shown a potential link between asbestos and prostate cancer but none have produced conclusive results.  American Cancer Society website stated that there was no conclusive evidence of relation of asbestos causing prostate cancer.
4)  Gasoline-WHO in volume 45 in monograph "Occupational Exposure in Petroleum Refining: Crude Oil and Major Petroleum Fuels" states that gasoline is possibly carcinogenic in humans; the evidence showed a possible link with leukemia and bladder cancer; however, there was no mention of a link with prostate cancer.
5)  Petroleum tank residue (crude oil)-WHO in volume 45 in monograph "Occupational Exposure in Petroleum Refining: Crude Oil and Major Petroleum Fuels" states that there is inadequate evidence that crude oil is carcinogenic in humans.

The National Cancer Institute lists only two chemicals as risk factors for prostate cancer:
1)  Cadmium which is found in batteries, plant smelters, and cigarette smoke, and
2)  Dioxin found as contaminant of herbicide used in Viet Nam.

Based on this extensive body of research, the examiner found that there was "no conclusive evidence in the literature that diesel fuel, gasoline, asbestos, or petroleum tank residue cause prostate cancer," and opined that it was "less likely as not that the [V]eteran's prostate cancer was caused by or aggravated by in-service exposure to a variety of chemicals, to include diesel fuel, gasoline, asbestos, and petroleum tank residue."

The Board finds the March 2013 examination report to be highly probative, as it is based on a thorough review of the Veteran's medical records and cites to relevant and accepted medical principles.  The opinion is also consistent with the other evidence of record and is supported by a detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.).  Significantly, this is the only report which is based on an accurate factual predicate (i.e. the Veteran's exposure to chemicals others than agent orange during service). 

The Veteran, as a lay person, is competent to note what he experiences, including prostate problems.  See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses).  Furthermore, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

However, in this case, the question as to the cause of his prostate cancer is a complex medical question.  It is different from stating a diagnosis of a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet).  That is, appropriate expertise is required to determine the etiology of the Veteran's prostate cancer.  In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render such a finding.  See 38 C.F.R. § 3.159 (a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  While the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his disability as such is not readily subject to lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  In this circumstance, the Board gives more weight and credence to the April 2013 VA examiner's opinion which was rendered by a licensed medical professional rather than a lay person and was based on medical principles, which were set forth in the report. 

Additionally, the Veteran has cited to medical literature linking diesel exhaust as a carcinogen.  Medical treatise evidence can, in some circumstances, constitute competent medical evidence.  See 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses).  However, medical evidence that is speculative, general, or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  Because the information cited by the Veteran and his representative is generic and does not specifically relate to the facts and circumstances surrounding this particular case, it holds less probative weight than the determination of the VA examiner, who personally examined the Veteran and cited to the current relevant medical principles with attention to the specifics of the Veteran's case

Further weighing against the Veteran's claim is the length of time that has elapsed between active service and the initial documentation of a diagnosis of prostate cancer in 2005, which is over four decades after service discharge.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  The probative evidence of record weighs against a finding of either chronicity during active service or a continuity of symptoms following active service.  See 38 C.F.R. § 3.303(b) (2013).  Rather, it shows that the Veteran's current disability not manifest until around 2005.  Consequently, service connection for prostate cancer cannot be awarded on the basis of a chronicity in service or a continuity of symptoms thereafter under 38 C.F.R. § 3.303(b) for chronic disabilities.  Nor is presumptive service connection for prostate cancer available, as the first documented diagnosis of the disability is more than one year from the Veteran's separation from service.  Thus, it did not manifest to a degree of 10 percent within that first year out of service.

Based on the foregoing, Hickson element (3) is not met, the weight of the evidence is against the Veteran's claim, and the benefit of the doubt provision does not apply.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the Board concludes that service connection for prostate cancer is not warranted.


ORDER

Service connection for prostate cancer, secondary to herbicide and/or chemical exposure, is denied.





____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs