Citation Nr: 1601594 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 14-10 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1958 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Subsequent to the Statement of the Case (SOC) issued in March 2014, additional documents submitted by the Veteran and his representative were associated with the Veteran's claims file. To the extent that any of the received documents are considered evidence, the Veteran filed his substantive appeal in March 2014 and this evidence is therefore subject to initial review by the Board because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C.A. § 7105(e)(1) (West 2014). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Also, a review of the electronic records maintained in Virtual VA was conducted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for prostate cancer. Generally, in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. Regarding a current disability, a January 2012 VA Prostate Cancer Disability Benefits Questionnaire (DBQ) noted a diagnosis of prostate cancer in remission and noted that there were residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. Regarding an in-service event and nexus, the Veteran's main contention has been, essentially, that he had prostatitis in service that continued after service and that his prostatitis caused his prostate cancer. See, e.g., February 2014 Veteran Statement (referencing being diagnosed with prostatitis in service and stating that "[a]fter I was discharged my Prostatitis continued throughout the years and could not be cleared up and eventually lead to prostate cancer"). Various service treatment records (STRs) referenced the Veteran being treated for prostatitis or otherwise referenced urological issues. See, e.g., April 1961 STR (noting a history of chronic prostatitis and that the Veteran had been treated for this condition for approximately nine months). As such, the evidence of record confirms an in-service event. The crucial remaining inquiry is whether there is a nexus between the Veteran's current prostate cancer residuals and his in-service prostatitis. To this point, an August 2011 private medical letter from Dr. Z.M., noted to work in a urology practice, stated that "[i]t is well-known that recurrent prostatitis could be one of the risk factors to cause prostate cancer." A September 2011 private medical letter from Dr. Z.M. additionally stated that "the development of [the Veteran's] prostate cancer is at least as likely as not related to his recurrent prostatitis." In January 2012, a negative VA opinion as to direct service connection was obtained. The rationale provided stated in part that "[a]lthough there is a letter in the claimant's records reviewed stating causality of the prostate cancer by prostatitis, this is not supported by the literature," with further reference made to a review of medical literature. Upon review, the private medical letters from Dr. Z.M. indicated that prostatitis can cause prostate cancer, whereas the January 2012 VA opinion indicated the contrary position that prostatitis does not cause prostate cancer. This particular issue involves a medical determination that the Board is not qualified to make and therefore remand is required for another VA opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, the evidence of record also raises the theory of entitlement that the Veteran's prostate cancer was caused by exposure to contaminants while stationed at Camp Lejeune. In a May 2013 statement, the Veteran referenced being stationed at Camp Lejeune in 1958 and 1961 and an internet article was also submitted with a heading of Camp Lejeune Toxic Water that noted prostate cancer as a "[r]eported health problem[] in people of all ages from working" with the type of contaminants that were present at Camp Lejeune. The Veteran's personnel records noted that he was stationed at Camp Lejeune from approximately August 1958 to November 1958 and from January 1961 to May 1961. With regard to veterans who served at Camp Lejeune between 1953 and 1987, VA has recognized potential exposure to contaminants present in the drinking water. See M21-1, Part IV, Subpart ii, 2.C.5.o. As such, while on remand, the medical professional is also asked to consider whether the Veteran's prostate cancer and resulting residuals were related to the Veteran's potential exposure to contaminants present in the drinking water at Camp Lejeune. The Board notes that specific provisions exist in the M21-1 regarding VA opinions related to Camp Lejeune claims; such provisions must be followed on remand. See M21-1, Part IV, Subpart ii, 1.I.6.f. Further, the Veteran submitted two typed copies of a document labeled as Notice of Disagreement (NOD). The typed text stated that "I was exposed to Herbicides through out my enlistment at Camp Lejeune, N.C., from 1958 to 1963 and had severe ch[r]onic prostatitis." One version of this document, however, had the quoted sentence scratched out and included a handwritten notation of "I don't [k]no[w] what caused my prostatitis infection in the service for sure and never will." As such, it is not entirely clear if the Veteran is claiming he was exposed to herbicides while in service and if so, the nature of such exposure. If a veteran was exposed in service to certain herbicide agents (e.g., Agent Orange), service connection for certain diseases, including prostate cancer, will be presumed. See 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). VA has established a procedure for verifying reported herbicide exposure in areas outside Vietnam, Korea or Thailand. See M21-1, Part IV, Subpart ii, 1.H.7.a. Under this procedure, the Veteran must be asked for the approximate dates, locations and nature of the alleged exposure to herbicides. This information was not requested from the Veteran by VA. As such, while on remand, the Veteran must be contacted and asked to clarify whether he is claiming he was exposed to herbicides in service and if so, to provide the approximate dates, location(s), and nature of his alleged exposure to herbicides, pursuant to the M21-1. Finally, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) dated in August 2011 for Dr. F.C. and noted treatment in August 2003 for all conditions. While an August 2011 letter is of record from Dr. F.C., private medical records do not appear to have been requested from this provider by VA. As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include from Dr. F.C., or complete a release for such providers; if any releases are returned, the AOJ must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (2015). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). Expedited handling is requested.) 1. Contact the Veteran and request that he either provide any outstanding relevant private treatment records, to include from Dr. F.C., or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159(e) (2015). The Veteran must then be given an opportunity to respond. 2. Contact the Veteran and ask him to clarify whether he is claiming he was exposed to herbicides in service and if so, to provide the approximate dates, location(s), and nature of his alleged exposure to herbicides. See M21-1, Part IV, Subpart ii, 1.H.7.a. 3. After completion of the above, obtain a VA opinion with respect to the Veteran's prostate cancer claim from a qualified medical professional other than the provider of the January 2012 VA examination and opinion. If the medical professional determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination must be scheduled. However, the Veteran must not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file, to include a copy of this remand, must be made available to the medical professional for review and the opinion must reflect that such a review was accomplished. The Board notes that specific provisions exist in the M21-1 regarding VA opinions related to Camp Lejeune claims; such provisions must be followed. See M21-1, Part IV, Subpart ii, 1.I.6.f. The medical professional must address whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's prostate cancer and resulting residuals are related to any in-service disease, event, or injury, to include prostatitis or potential exposure to contaminants present in the drinking water at Camp Lejeune. While review of the entire claims file is required, attention is invited to the Veteran's contention that, essentially, he had prostatitis in service that continued after service and that his prostatitis caused his prostate cancer. See, e.g., February 2014 Veteran Statement (referencing being diagnosed with prostatitis in service and stating that "[a]fter I was discharged my Prostatitis continued throughout the years and could not be cleared up and eventually lead to prostate cancer"). In this regard, the medical professional's attention is invited to various STRs that referenced the Veteran being treated for prostatitis or otherwise referenced urological issues. See, e.g., April 1961 STR (noting a history of chronic prostatitis and that the Veteran had been treated for this condition for approximately nine months). Specific attention is invited to an August 2011 private medical letter from Dr. Z.M., noted to work in a urology practice, which stated that "[i]t is well-known that recurrent prostatitis could be one of the risk factors to cause prostate cancer" and a September 2011 private medical letter from Dr. Z.M. which additionally stated that "the development of [the Veteran's] prostate cancer is at least as likely as not related to his recurrent prostatitis." The medical professional is asked to explain the reasons behind any opinions expressed and conclusions reached. The medical professional is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the medical professional's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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 2014). _________________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).