Citation Nr: 1639501 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 03-01 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The appellant served in the Army National Guard from October 1971 to October 1977, during which time he served on a verified period of active duty for training (ACCUTRA) from December 1971 to April 1972, as well as various other periods of ACDUTRA and inactive duty training (INACDUTRA) between April 1974 and October 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas, that denied service connection for prostate cancer, to include as due to Agent Orange exposure. In a December 2004 decision, the Board denied the appellant's claim for entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure. The appellant then appealed the Board's December 2004 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2005, the parties (the appellant and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded. A December 2005 Court Order granted the motion. In May 2006, February 2011, and March 2015, the Board remanded this appeal for further development. FINDINGS OF FACT 1. The appellant did not serve in the Republic of Vietnam and the evidence does not establish that he was exposed to Agent Orange during his period of service. 2. The appellant's prostate cancer was not present during service or for many years thereafter, and was not caused by any incident of service including Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that service connection should be granted for his prostate cancer because while serving in the Army National Guard he was exposed to Agent Orange as a consequence of his exposure to various types of equipment coming to and from Vietnam that had Agent Orange residue. See September 2016 written argument. In support, the appellant's attorney attached the report of a study conducted by the Institute of Medicine finding a link between post-Vietnam dioxin exposure in Agent Orange-contaminated C-123 aircraft. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). (Under 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309(e) (Note 3.) Further, during the pendency of this appeal, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent ("Agent Orange") during the Vietnam era. See 38 C.F.R. § 3.307 (a)(6)(v). This change established a new basis of entitlement for VA compensation benefits based on a presumptive basis, since proof of the Veteran serving around the proper aircraft would mean his exposure to Agent Orange is now presumed and this is no longer a factual issue for which he must produce evidence of actual exposure. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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 or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, and the appellant's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As noted above, the appellant contends that he has prostate cancer that is related to service, to include as due to Agent Orange exposure. He specifically maintains that although he did not serve in Vietnam, he was exposed to Agent Orange while handling ammunition and equipment which had been returned from Vietnam while he was serving in the Army National Guard. He reports that his duties included cleaning 5-ton trucks and 155 mm howitzer cannons that had been used in Vietnam. The appellant indicates that it was very common for Army Reserve units and/or Army National Guard units to receive military equipment from the battlefield and to upgrade such equipment. In a November 2005 joint motion, the Board was instructed by the Court to further explain what actions had been taken by VA in assisting the appellant to determine whether he was exposed to Agent Orange during ACDUTRA. In a May 2006 remand, the Board indicated that the RO was to develop any available evidence with regard to whether the appellant was exposed to Agent Orange while working at an ammunition depot during his ACDUTRA. The Board indicated that the RO was to request that the appellant provide additional, specific, information as to the dates, locations, and conditions of his periods of ACDUTRA during which he believed he was exposed to Agent Orange or other herbicide agents, to include the particular organizational unit during which he performed such duty, the duration of such exposure to herbicides or the residue thereof, and the methods by which he believed that he came into contact with such herbicide agents. The May 2006 remand also indicated that the RO was to contact the Army National Guard and provide the information returned by the appellant, and to request that any documentation regarding whether equipment handled by members of the Army National Guard unit in Fort Sill, Oklahoma; Yakima, Washington; in Texas, or any other duty sites identified by the appellant between December 1971 and October 1977, may have originated in Vietnam. If so, the RO was to request an opinion whether it was at least as likely as not that a person handling that equipment was exposed to Agent Orange. In December 2006, the Appellant indicated that the work he believed resulted in exposure to Agent Orange occurred at Fort Sill, Oklahoma, and in Yakima, Washington. He also indicated that he served in Pasadena, Texas, as well as in Vancouver, Washington. In January 2007 and April 2007, the RO requested that the Texas Army National Guard verify the appellant's reports of handling of equipment which may have originated in Vietnam and to indicate whether an individual handling such equipment would be exposed to Agent Orange. The RO also requested that such organization provide an opinion whether it was as likely as not that a person handling the equipment was exposed to Agent Orange. In April 2007, an official from the Texas Adjutant General's Department indicated that their records did not show whether the Appellant handled equipment from Vietnam contaminated with herbicide agents, or to what degree said vehicles were contaminated, while serving with the 1444th Transportation Company in Pasadena, Texas. The official did, however, note that the Appellant's duties would have caused him to have direct contact with vehicles assigned to the unit. In April 2007, the RO contacted the Oklahoma Adjutant General and requested that the Oklahoma Army National Guard verify the appellant's reports of handling of equipment which may have originated in Vietnam and to indicate whether an individual handling such equipment would be exposed to Agent Orange. The RO indicated that such organization should provide an opinion whether it was as likely as not that a person handling the equipment was exposed to Agent Orange. In April 2007, August 2007, and October 2007, the RO requested that the Washington Army National Guard verify the appellant's reports of handling of equipment which may have originated in Vietnam and to indicate whether an individual handling such equipment would be exposed to Agent Orange. The RO also requested that such organization provide an opinion whether it was as likely as not that a person handling the equipment was exposed to Agent Orange. In January 2008, the Washington Army National Guard indicated that the appellant was not a member of the Washington Army National Guard. In February 2008, the RO contacted the Oklahoma Adjutant General and requested that the Oklahoma Army National Guard verify the appellant's reports of handling of equipment which may have originated in Vietnam and to indicate whether an individual handling such equipment would be exposed to Agent Orange. The RO also requested that such organization provide an opinion whether it was as likely as not that a person handling the equipment was exposed to Agent Orange. In March 2008, the records manager of the Oklahoma National Guard Joint Force Headquarters indicated that there was no evidence that the appellant was ever a member of the Oklahoma Army or Air National Guard. In April 2008, the same records manager of the Oklahoma Army or Air National Guard indicated that, if the appellant had been a member of another State's National Guard and performed ACDUTRA at Fort Sill, Oklahoma, that State (in this case, Washington) would have such records. In March 2009, the RO requested that the Washington Army National Guard clarify whether their records could verify whether the Appellant handled equipment returning from Vietnam during his membership in the Guard from 1971 to 1974, and, if so, whether it was likely or unlikely that he came into contact with Agent Orange. An April 2009 response from an individual at the National Guard of Washington (NGWA) notes that everyone with whom he checked was unable to recall any cleaning of trucks or howitzers at National Guard installations in Vancouver or Yakima that had returned from Vietnam. The individual reported that it was unlikely that the National Guard was involved, but that he could not state that it could not have happened. He also maintained that there was an Army Reserve presence in Vancouver at that time. In another April 2009 response, another NGWA official, indicated that the above individual was a retired colonel and that he was the "State Museum guru." The second response added that the logistics center at Fort Lewis may or may not have had a cleaning function (although the appellant had not alleged any service at Fort Lewis, Washington). The second response also states that they did not have anything to support appellant's claim. In a February 2011 remand, the Board noted that with regard to the appellant's service, there was a matter not previously addressed in this case, either by VA or by the Appellant or his attorney. The Board indicated that under the law, a member of the National Guard only served in the Federal military when the member is formally called into the military service of the United States. Under 38 C.F.R. § 3.6(c), (d), to have basic eligibility as a veteran based on a period of duty as a member of a State Army National Guard, a national guardsman must have been ordered into Federal service under 38 U.S.C.A. §§ 316, 502, 503, 504, 505. Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (citing Perpich v. Department of the Defense, 496 U.S. 334 (1990)). See Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). The Board reported that a National Guard Bureau (NGB) Form 22 shows that the appellant enlisted in the Army National Guard of Washington State in October 1971, and that he was discharged in April 1974 to enlist in the Army National Guard of Texas. During his membership in the Washington Army National Guard, a DD Form 214 shows that he served on ACDUTRA from December 1971 to April 1972, at the end of which he was released to State control with the Army National Guard of Washington from Fort Sill, Oklahoma. The Board further noted that an NGB Form 23 documents two-week periods of ADUTRA in June 1972 and June 1973 for the Washington Army National Guard. The Board also indicated that an NGB Form 22 shows that the appellant enlisted in the Army National Guard of Texas in April 1974 and that he was discharged in October 1977. It was noted that an NGB Form 23 documents numerous periods of ACDUTRA and/or INACDUTRA between April 1974 and October 1977, ranging from one to six days each. In the February 2011 remand, the Board requested that RO contact the Washington State Army National Guard and the Texas State Army National Guard; provide each with the appellant's pertinent NGB Forms 22 and 23, and his DD Form 214, and request each to certify whether any of the appellant's service with those organizations was federalized service under the authority of 32 U.S.C.A. §§ 316, 502, 503, 504, or 505, and, if so, to certify the specific dates thereof. Additionally, the Board indicated that if any period of duty was certified by the appropriate National Guard official(s) as constituting federalized service, the RO was to contact the Washington State Army National Guard again and provide the dates of such periods of service. In March 2011, the RO contacted the Washington State National Guard and requested that they certify whether any of the appellant's service was federalized under the authority of 32 U.S.C.A. §§ 316, 502, 503, 504, or 505, and, if so, to certify the specific dates thereof. In March 2011, the RO also contacted the Texas Army National Guard and requested that they certify whether any of the appellant's service was federalized under the authority of 32 U.S.C.A. §§ 316, 502, 503, 504, or 505, and, if so, to certify the specific dates thereof. In April 2011 and June 2012, respectively, the Washington State National Guard and Texas Army National Guard responded to the March 2011 requests for certification of the appellant's service. Both organizations responded that they were unable to provide any further documentation regarding the appellant's service. Specifically, the Washington State National Guard wrote that they were unable to provide any information to support the Appellant's claim, because the records on their equipment maintenance were kept on file for only 6 years. In May 2012 the RO sent a letter to the appellant, informing him that information regarding the evaluation of his claim had been delayed, and to send in any records in his possession that would assist in processing his claim. After receiving the Washington State National Guard's response that the equipment records had been destroyed, the RO did not notify the appellant that the records did not exist. In a March 2015 remand, the Board indicated that the RO must notify the appellant and his attorney in accordance with 38 C.F.R. § 3.159(e) that the records that were attempted to be obtained from the Texas and Washington National Guards did not exist, and ask the appellant to provide any such information in his possession. In July 2015, the RO provided such notice to the appellant and his attorney. Given the above development, it is clear that there are no additional available records relating to the appellant's claimed exposure to Agent Orange. The Board notes that neither the appellant nor his attorney has advanced any further procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The appellant served in the Army National Guard from October 1971 to October 1977, during which time he served on a verified period of active duty for training (ACCUTRA) from December 1971 to April 1972, as well as various periods of ACDUTRA and inactive duty training (INACDUTRA) between April 1974 and October 1977. The appellant did not serve in the Republic of Vietnam and the evidence does not establish that he was exposed to Agent Orange during his period of service. The appellant's service treatment records do not show complaints, findings, or diagnoses of prostate cancer or for any prostate problems. Post-service private treatment records show treatment for prostate cancer. A December 1998 operation report from the St. Luke's Episcopal Hospital notes that the Appellant underwent pelvic lymph node dissection and a radical retropubic prostatectomy. The postoperative diagnosis was Stage II 1c moderately undifferentiated adenocarcinoma of the prostate (final pathology pending). A January 1999 statement from R. A. Goldfarb, M.D., indicates that the appellant had undergone a radical retropubic prostatectomy in December 1998, and that he was found to have a transition zone tumor, with no evidence of vascular or lymphatic invasion and no seminal vesicle invasion. Dr. Goldfarb reported that the margins were positive, particularly anteriorly, along the apex on the left and that the tumor extended, extensively, from the base to the apex, anteriorly. A March 1999 statement from Dr. Goldfarb notes that the appellant had undergone a radical retropubic prostatectomy and that he was found to have a positive margin. Dr. Goldfarb stated that the Appellant required adjuvant hormone manipulation, as well as radiation therapy. A May 1999 treatment report from the Methodist Hospital indicates a diagnosis of pathological stage T3 adenocarcinoma of the prostate, with positive surgical margins. A June 1999 treatment report from Methodist Hospital relates an impression of prostate cancer, status post initial radical prostatectomy, with a positive surgical margin, and presently status post radiation therapy with an undetectable prostate-specific antigen. A March 2000 report of a computed tomography scan, as to the appellant's abdomen and pelvis, from North Austin Medical Center notes that the appellant complained of right flank pain. The impression was right perinephric stranding with slight prominence of right proximal ureter likely due to recently passed calculus; postoperative changes status post prostatectomy; fatty infiltration of the liver; and focal hyperdensity in the liver adjacent to the gallbladder fossa of uncertain significance. An April 2000 operative report from the Seton Medical Center indicates that the appellant underwent surgery with postoperative diagnoses of a right lower ureteral stricture; a bladder neck contracture; and an erythematous lesion, right wall of the bladder, probably radiation cystitis, with biopsies pending. In a September 2000 statement, Dr. Goldfarb reported that the appellant had a history of prostate carcinoma and that he had undergone radical retropubic prostatectomy, as well as radiation therapy. It was noted that the appellant developed a post-radiation therapy ureteral stricture which caused secondary pain, hydronephrosis and loss of kidney function, requiring a right ureteral re-implant. Dr. Goldfarb maintained that such injury was a direct consequence of the appellant's cancer therapy. The Board notes as the appellant did not serve in the Republic of Vietnam during the Vietnam era, and there is no competent evidence indicating exposure to Agent Orange during his periods of military service, he is not entitled to service connection for prostate cancer on a presumptive basis due to Agent Orange exposure. 38 C.F.R. § 3.309 (e). Nevertheless, the appellant is not precluded from establishing service connection for prostate cancer on a direct basis. See Combee v. Brown, F.3d at 1039 (Fed. Cir. 1994). The Board observes that the probative evidence of record does not suggest that the appellant's prostate cancer is related to his periods of service. In fact, the probative evidence of record is against this finding, indicating that the appellant's present prostate cancer began many years after service, without relationship to service, to include any Agent Orange exposure. The appellant has asserted in statements and testimony that his prostate cancer had its onset during his period of service. While the appellant is competent to report that he had prostate problems during service or since service, he is not competent to diagnose his currently claimed prostate cancer as related to service, to include as due to exposure to Agent Orange. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). Moreover, he is not competent to establish that he was exposed to Agent Orange during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service). In the appellant's case, such evidence requires a certain level of expertise given the medically complex question. A Lay opinion is not sufficient in this case to establish exposure. As to the appellant's exposure, as noted above, the presumption of service connection for equipment relates only to Air Force personnel who worked with C-123 aircraft. Here, appellant served in the Army National Guard, not the Air Force National Guard. Further, his reported exposure does not relate to residue from aircraft, which in any event would not be consistent with his MOS as field artilleryman in the Army. Finally, as noted above, the appellant has not demonstrated that he is competent to identify herbicides, including those (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) for which presumptions of service connection may apply. See 38 C.F.R. § 3.307(a)(6); see also Bardwell. The preponderance of the evidence is against the claim for entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure; there is no doubt to be resolved; and service connection for prostate cancer, to include as due to Agent Orange exposure, is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. ORDER Service connection for prostate cancer, to include as due to Agent Orange exposure, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs