Citation Nr: 1751647 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-02 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from May 1974 to April 1979. The Veteran died in September 2009. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction was subsequently returned to the RO in Boston, Massachusetts. In connection with this appeal, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran died in September 2009; his primary cause of death was metastatic prostate cancer. 2. At the time of his death, the Veteran had no service-connected disabilities, nor did he have a pending claim for VA benefits. 3. The Veteran is not presumed to have been exposed to herbicides during his active service. 4. The Veteran is not presumed to have been exposed to contaminated water at Camp Lejeune during active service. 5. Prostate cancer was not etiologically related to the Veteran's active service, and was not present within one year of his separation from active service. CONCLUSION OF LAW A disability incurred in or aggravated by active service, or presumed to have been incurred in or aggravated by active service, did not cause the Veteran's death or substantially and materially contribute to the Veteran's cause of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is claiming service connection for the cause of the Veteran's death. More specifically, the appellant has asserted that the Veteran was exposed to herbicides while on active duty in Okinawa, Japan or South Namath Naval Air Base, in Massachusetts; or, in the alternative, that he was exposed to contaminated water at Camp Lejeune, North Carolina, one or more of which contributed to his development of prostate cancer. The Veteran's death certificate confirms that his primary cause of death was metastatic prostate cancer. The Veteran was not service-connected for any disability prior to his death. Thus, the Board must determine whether service connection is warranted for the Veteran's death due to prostate cancer. The evidence does not suggest, nor does the appellant allege that the Veteran's prostate cancer was directly related to his active service. Regardless, service treatment records are silent for complaints of, treatment for, or a diagnosis of prostate cancer while the Veteran was in active service. Post-service medical records show that the Veteran was diagnosed with prostate cancer in approximately November 2005, more than 25 years following his separation from service. The Board notes there is a rebuttable presumption of exposure to herbicides if the claimant served in the Republic of Vietnam during the period January 9, 1962 to May 7, 1975. See, 38 U.S.C. §§ 1113, 1116; 38 C.F.R. § 3.307. VA has also established the use of tactical herbicides on the demilitarized zone (DMZ) of Korea and on the perimeters of air bases in Thailand during specific periods. However, the records do not show that the Veteran had service in the Republic of Vietnam, Republic of Korea, or Kingdom of Thailand, so those presumptions do not apply. With regard to the appellant's contention that the Veteran was exposed to herbicides while in Okinawa, historical records have confirmed his participation in educational courses at the Kubasaki High School in Okinawa during the spring of 1975. Thus, the Veteran's presence in Okinawa is not in dispute. However, historical evidence does not confirm the presence or use of herbicides in Okinawa. In support of her claim, the appellant has submitted numerous additional documents, including newspaper articles, asserting the use or storage of tactical herbicides outside the Republic of Vietnam, including at Okinawa. Upon review, those documents assert the use of herbicides during periods, or in areas outside of the Veteran's active service, or in confirmed military operations in which the Veteran did not participate. In particular, the Board acknowledges the portion of the document titled "Information from Department of Defense on Herbicide Tests and Storage outside of Vietnam" that was submitted by the appellant. This abbreviated list refers to 15 sites known to store or test the use of Agent Orange and other herbicides, but does not list any site in Okinawa or any locations in Japan. The Board notes that the document containing the complete list identifies a total of 71 sites, but does not include any location in Japan generally, or Okinawa specifically. The Board further acknowledges the appellant's reference, in particular, to testing conducted at Poole's Island, at the Aberdeen Proving Grounds (APG) in Maryland in July 1969; and, in Cambodia in June 1969. However, both periods of testing were conducted prior to the Veteran's enlistment in the service, and, therefore does not constitute probative evidence in support of the appellant's claim. In addition, there is no evidence in the Veteran's service treatment records (STRs) or military personnel records (MPRs) to indicate he ever served or stepped foot in Cambodia, at any time during his period of service. As such, those documents are not relevant to resolution of the appeal before the Board, and will not be considered. As noted above, the appellant has also asserted that the Veteran was exposed to herbicides while on active duty at South Namath Naval Air Station, in Weymouth Massachusetts. Historical records, including the Veteran's DD Form 214 have confirmed his presence at South Namath Naval Air Station from January 1976 to April 1979. Thus, the Veteran's presence at South Namath Naval Air Station is not in dispute. However, there is no evidence to support a claim of any use or storage of herbicides at South Namath Naval Air Station. As noted above, the document titled "Information from Department of Defense on Herbicide Tests and Storage outside of Vietnam" refers to a total of 71 sites which were known to store or test chemical agents, including Agent Orange, but the list does not include the Naval Air Station, or any locations in the state of Massachusetts. Further, the appellant has not submitted any additional competent and credible evidence, including shipment logs, photographs, or credible statements tending to show the use or storage of such chemicals at South Namath Naval Air Station, at any time during the Veteran's period of service. The Board acknowledges the March 2014 private medical opinion from Dr. A.E., indicating the likelihood that the Veteran's prostate cancer was caused or aggravated by his service in Okinawa; or, at South Namath Naval Air Station, in Massachusetts. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. 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. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. 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. 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. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The medical opinion from Dr. A.E. simply states that in the absence of a family history of prostate cancer, and a period of service in Okinawa and Massachusetts, that the Veteran was likely exposed to multiple chemicals and that the prostate cancer is more likely than not due to this exposure. However, Dr. A.E. did not provide any rationale or supporting evidence for his opinion that the Veteran's prostate cancer was linked to toxic chemicals, or any confirmation that the Veteran was in fact, actually exposed to such chemicals. He merely provided a bare conclusion in support of the appellant's claim, which lacks probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). In addition, as noted above, although the Veteran's diagnosis of prostate cancer and presence at both Okinawa and South Namath Naval Air Station is conceded, there is no evidence to support the claim of exposure to herbicides at either location, prior to, during, or after the Veteran's period of service in those locations. Accordingly, service connection for the cause of Veteran's death due to herbicide exposure is not warranted. The appellant has also asserted that the Veteran's prostate cancer was likely caused or aggravated by exposure to contaminated water at Camp Lejeune, North Carolina. The VA has acknowledged that persons residing or working at U.S. Marine Corps Base Camp Lejeune from August 1957 through December 1987 potentially were exposed to drinking water contaminated with volatile organic compounds (VOCs). In the early 1980s, it was discovered that two on-base water-supply systems at Camp Lejeune were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other VOCs also were found to be contaminating the water-supply systems. See, VBA Training Letter 11-03 (Revised) (November 29, 2011). Until scientific evidence shows otherwise, it will be assumed by VA that any Veteran who served at Camp Lejeune between 1957 and 1987 potentially was exposed in some manner to the full range of chemicals known to have contaminated the water there during this time period. As noted above, the Appellant was afforded a hearing before a member of the Board in April 2017. At the time of the hearing, the Appellant asserted that the Veteran was stationed down at Camp Lejeune. She elaborated that the Veteran entered training at Parris Island, but she believed that he also attended some form of training at Camp Lejeune, as that was "the main military base" on the East Coast. A thorough review of the historical records, including the Veteran's service treatment records and service personnel records confirm that the Veteran entered active service through the USMC recruiting station in Raleigh, North Carolina in April 1974; and, further that he attended recruit training at Parris Island, South Carolina in May 1974. However, the records do not confirm that the Veteran was ever stationed at, transferred to, or served any period of active duty at Camp Lejeune. The appellant has not submitted any competent and credible evidence to the contrary. Moreover, prostate cancer is not among the diseases which have been presumptively related to exposure to contaminated drinking water at Camp Lejeune. 38 C.F.R. § 3.309(f) (2017). The Board observes that no medical opinion has been obtained to assess the nature and likely relationship of the Veteran's prostate cancer in relationship to his service or potential exposure to contaminated water at Camp Lejeune. VA is obligated to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). Here, the evidence does not establish the second McLendon element; namely, that the Veteran experienced an event, injury, or diseases associated with his prostate cancer while in service. More specifically, the evidence does not establish the Veteran served at Camp Lejeune, North Carolina. Thus, VA was not required to obtain a medical opinion, and has met its duty to assist the appellant. While the appellant might sincerely believe that the Veteran's prostate cancer was related to his active service and while lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran had prostate cancer that was related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the appellant is not competent to provide a medical opinion in this case. Further, as noted above, the Veteran was not diagnosed with prostate cancer until approximately 2005, many years following his separation from active service. Therefore, presumptive service connection for a chronic disease would not have been warranted for the Veteran's prostate cancer prior to his death. 38 C.F.R. § 3.309(a) (2017). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the cause of the Veteran's death is not warranted. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs