Citation Nr: 1802850 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-11 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Kenneth J. Spindler, Attorney ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The case is now under the jurisdiction of the San Diego, California RO. This case was previously remanded by the Board in March 2016 and has returned for further appellate review. FINDINGS OF FACT 1. Prostate cancer was not incurred in service and did manifest to a compensable degree within one year after the Veteran's separation from service. 2. The Veteran was not exposed to herbicide agents during his military service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2002); 38 C.F.R §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In its March 2016 remand, the Board indicated that the Veteran should be asked to provide additional information about his alleged exposure to herbicides, to include the dates of such exposure in 60-day increments if possible. If the Veteran responded, the Agency of Original Jurisdiction was to contact the Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. In an April 2016 letter, the Veteran was asked for this information. He did not respond to the letter and the Agency of Original Jurisdiction (AOJ) issued a June 2016 supplemental statement of the case without contacting JSRRC. In August 2016, the Veteran's attorney indicated that JSRRC could not have found any record of dioxin exposure in the military unit's official records, regardless of if a 60-day period of time was specified. He also stated that "going through the motions of following the standard development procedure [in the M21-1] would have been an act of futility in this case." The Board finds that the prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran claims that he developed prostate cancer as a result of exposure to herbicide agents while serving in the United States Navy. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as malignant tumors. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. Id. In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service treatment records do not reflect treatment or diagnosis related to prostate cancer, and the Veteran's January 1977 separation examination report shows normal clinical evaluations and in the summary of defects and diagnoses indicates "NONE." Prostate cancer was not diagnosed until decades after service. The medical evidence is against a finding that prostate cancer was incurred in service or manifest to a compensable degree within one year of service such that it could be presumed to have been incurred during service. See 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The Veteran has not alleged that his prostate cancer began during military service or in the year after his separation from service. Instead, he asserts he developed prostate cancer as a result of exposure to herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iv) are met. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). These diseases must become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). VA can presume exposure to herbicides in certain cases; however, the Veteran has not alleged that any of the situations described in the regulations apply in his case. See 38 C.F.R. § 3.307(a)(6). Instead, the Veteran has alleged exposure to herbicide agents while stationed in Guam from May 1973 to August 1975. Service personnel records show that he was stationed at the U.S. Naval Communications Station in Guam. In his March 2014 VA Form 9, the Veteran also noted that in Guam he was stationed at the Naval Communications Station (which he believed was now called the Naval Computer and Telecommunications Station). As herbicide agent exposure cannot be presumed, there must be a showing of actual exposure to herbicide agents in this case for the presumption of service connection found in § 3.309(e) to be applicable. Id. Regarding exposure to herbicide agents, the Veteran has stated that herbicides were sprayed on the perimeter of his base in Guam and that the groundwater was contaminated. Specifically, in his Form 9 he states that dioxins and other carcinogens were dumped from leaking barrels off the runway of Andersen Air Force Base in Guam, that Agent Orange and Agent Purple were transshipped to the Republic of Vietnam through Andersen Air Force Base, that Andersen Air Force Base is an Environmental Protection Agency (EPA) Superfund site and is located near where he was stationed in Guam, and that the barge he slept on served in a river in the Republic of Vietnam (but not while he was on the barge). The Veteran's attorney has similarly argued that the EPA has detected very high levels of dioxin at test sites located near the installation the Veteran served at for two and a half years. The Veteran's attorney also argues that the possibility that herbicides were shipped through Guam is not excluded. In April 2013, the AOJ furnished the Veteran's description of exposure to VA's Compensation Service and requested a review of the Department of Defense's (DoD) inventory of herbicide operations. In a May 2013 response, Compensation Service noted that the DoD list did not show any use, testing, or storage of tactical herbicides at any location on Guam during the Vietnam Era. It was noted that Agent Orange use in Vietnam and elsewhere was terminated in 1971 and that remaining stores were incinerated at sea. This was two years before the Veteran's service in Guam. The Veteran asserts that herbicides were sprayed on the perimeter of his base in Guam. As DoD reports no use, testing, or storage of tactical herbicides at any location on Guam during the Vietnam Era, the Board finds that the evidence is against a finding that any chemicals used to control vegetation around the Veteran's base in Guam were herbicide agents as defined in § 3.307(a)(6) (defining herbicide agents as a chemical in an herbicide used .... in the Republic of Vietnam ..., specifically, 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram). The evidence does not suggest that any commercial herbicides or chemicals used to control vegetation caused the Veteran's prostate cancer. While the Board recognizes that the EPA lists Andersen Air Force Base as a Superfund site, the Veteran did not serve at Andersen Air Force Base; he served at the Naval Communications Station in Guam. Likewise, even if chemicals were dumped from leaking barrels or transshipped through Andersen Air Force Base, as alleged by the Veteran, there is no evidence the Veteran would have been exposed to these chemicals as he was not stationed at Andersen Air Force Base. The evidence simply does not support a finding that the Veteran was personally exposed to chemicals that he purports were present at a base he was not at. While his base may have been on the same island as Andersen Air Force Base, that does not establish exposure. The Naval Communications Station on Guam is not an EPA Superfund site, and the evidence does not show that herbicide agents were leaking, dumped, or shipped through the Naval Communications Station. The Veteran also states that a barge he slept on was in the rivers of Vietnam before he slept on it. This does not establish exposure to herbicide agents. No competent evidence has been submitted to show that any herbicide agents would have remained on that barge, assuming it was in the rivers of Vietnam. The Veteran has not demonstrated that he has specialized knowledge that would qualify him to opine as to the degradation of chemical compounds such as herbicide agents after events such as the passage of time, exposure to air and water, cleaning and maintenance, etc. Thus, his opinion that he was exposed to herbicide agents via a barge that at one time was in Vietnam is not competent evidence. Given the above, the Board finds that the preponderance of the evidence is against a finding that prostate cancer was incurred during service or manifest to a compensable degree within one year after separation from service, or that the Veteran was exposed to an herbicide agent during service such that service connection for prostate cancer could be presumed. As such, the claim must be denied. ORDER Entitlement to service connection for prostate cancer is denied. _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs