Citation Nr: 1805434 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-14 344A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as secondary to herbicide agent and/or asbestos exposure. 2. Entitlement to service connection for lymph node cancer, to include as secondary to prostate cancer. ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to April 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. This appeal was remanded by the Board in October 2015 and May 2017 for further development and is now ready for disposition. FINDINGS OF FACT 1. The competent evidence of record does not show that the Veteran's current prostate cancer was noted during his active service, or that it is related to service, to include toxic herbicide exposure or asbestos exposure. 2. The competent evidence of record does not show that the Veteran's lymph node cancer was noted during his active service, or that it is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for current prostate cancer have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for current lymph node cancer have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained, or made all required attempts to obtain, the Veteran's VA treatment records, service treatment records, VA examination reports, military personnel records, and statements from the Veteran and his representative. Aside from service treatment records discussed below, neither the Veteran nor any of his past representatives notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c) (2017). This appeal was remanded by the Board in October 2015 and in May 2017 for further development. Specifically, additional records were obtained and associated with the Veteran's claims file. Further development was conducted to determine whether the USS Yorktown entered an inland waterway as defined in the Court's decision in Gray v. McDonald. Also, a VA medical opinion was obtained to address whether the Veteran's prostate cancer was related to asbestos exposure. The Board notes that the Veteran's service records from 1966 to 2001 were unable to be located. The Board further acknowledges its heightened duty to assist when service treatment records are unable to be located. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Although service treatment records from this period were determined to be unavailable in a January 2014 memorandum, the Board finds that this is of no consequence in this case; neither continuity of symptomatology nor a medical nexus between the Veteran's current prostate cancer and his active service has been found, nor has the Veteran actually asserted as much. Thus, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the Remand orders, and no further action is necessary in this regard. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran is seeking service connection for prostate cancer, to include as secondary to Agent Orange and/or asbestos exposure. Specifically, he appears to assert in his application that his ship, USS YORKTOWN (CV-10), sailed off the coast of Vietnam, and that he should therefore be entitled to a presumption of exposure to Agent Orange. The Veteran also asserts that his cancer is due to asbestos exposure during active duty. The Veteran seeks service connection for lymph node cancer, to include as secondary to his prostate cancer. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014). Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including prostate cancer, are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112 , 1113 (2014); 38 C.F.R. §§ 3.307 (a)(3) (2014), 3.309(a) (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2017). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, B-cell leukemias, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and as potentially relevant here, prostate cancer. 38 C.F.R. § 3.309(e) (2017). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). In April 2015, the United States Court of Appeals for Veterans Claims (Court) held that a fact-based assessment must be made regarding the probability of herbicide spraying even with regards to offshore areas not traditionally considered inland waterways. Gray v. McDonald, 27 Vet. App. 313 (2015). Following the decision in Gray, VA issued new guidelines which address what is considered an "inland waterway" of Vietnam. Presently, the criteria for inland waterways include "fresh water rivers, streams, and canals, and similar waterways." Because these waterways are distinct from ocean waters and related coastal features, service on these waterways qualifies as service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. See The Adjudication Procedures Manual M21-1 (M21-1), Part IV.ii.1.H.2.a (June 23, 2017). Service in offshore waters does not confer a presumption of herbicide exposure. Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. See M21-1, Part IV.ii.1.H.2.b (June 23, 2017). Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and Ganh Rai Bay are explicitly considered to be offshore waters. See M21-1, Part IV.ii.1.H.2.c (June 23, 2017). Prostate Cancer In this case, after reviewing all evidence currently of record, the Board determines that service connection for prostate cancer is not warranted. While the Veteran's October 2017 examination documents active prostate cancer, the evidence does not show that the Veteran's prostate cancer is related to or had its onset during his service or within a year after separation, or that it is related to asbestos or toxic herbicide exposure. First, the Veteran's prostate cancer cannot be attributed to herbicide agent exposure on a presumptive basis. While the Veteran served during the period from 1962 to 1975, and while prostate cancer is a disorder that may be presumed related to toxic herbicide agent exposure under §3.309, the Veteran's service did not include service in Vietnam, per 38 C.F.R. § 3.307(a)(6)(iii). A VA memorandum dated January 2016 documents a formal finding that Agent Orange exposure could not be conceded based on available information. The deck logs of USS YORKTOWN were reviewed, and there was no evidence that the ship ever docked, beached, or transited the inland waterways of the Republic of Vietnam. According to the memorandum, the closest the ship came to Vietnam was well outside the twelve nautical mile territorial waterway of the Republic of Vietnam. Further, YORKTOWN was not listed in the Department of Veteran's Affairs list of ships with conceded exposure to Agent Orange. Accordingly, service connection is not warranted on a presumptive basis. Next, although though his primary assertions have been addressed above, the Veteran is not precluded from establishing service connection for his prostate cancer with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. Specifically, the Veteran's service treatment records show no treatment for or symptoms of prostate or any testicular cancer in service, or at his separation exam in April 1968, or within the presumptive one-year period after separation. The Veteran was diagnosed with prostate cancer in April 2009. During this forty-one year gap, the Veteran displayed no signs or symptoms of prostate cancer. Moreover, the Veteran has never truly asserted that such symptoms have existed since service. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology or the Veteran's statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between his current disorder and his active duty service. However, there is no medical nexus between the Veteran's active duty and current diagnosis, as outlined in the Board's October 2015 and May 2017 remands. An October 2017 VA opinion was sought to determine the etiology of the Veteran's prostate cancer, pursuant to the Remand orders. The goal was to determine the likelihood that the Veteran's service, particularly his alleged exposure to asbestos, caused his prostate cancer. First, the examiner explained that there is no research indicating that asbestos exposure is a risk factor for prostate cancer, and that therefore it is less likely than not that the Veteran's current condition is related to active service. Further, the examiner explained that the most important risk factors for prostate cancer are age, ethnicity, genetic factors, and possibly diet, none of which is related to asbestos exposure. The Board notes that this examination did not directly address the etiology of the Veteran's prostate cancer. However, in light of the finding that the Veteran was not exposed to Agent Orange in service, there is no indication in the record that the Veteran's prostate cancer is caused by or related to active service. Accordingly, this exam was adequate. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) Lymph Node Cancer The Veteran seeks service connection for lymph node cancer, which, according to a January 2010 record, is the result of his prostate cancer metastasizing into his lymph nodes. However, given that service connection is not available for the Veteran's prostate cancer, this decision only addresses direct service connection for lymph node cancer. After reviewing all evidence currently of record, the Board determines that service connection is not warranted because the evidence does not show that lymph node cancer is related to or onset during the Veteran's service or within a year after separation. First, the Veteran's service treatment records show no treatment for or symptoms of lymph node cancer in service. As noted above, the Veteran's separation examination notes no abnormalities. The first indication of record of lymph node cancer is a January 2010 record in which lymph node involvement from prostate cancer is discovered during the Veteran's prostatectomy. Given that the Veteran asserts that his lymph node cancer came from his prostate cancer, continuity of symptomatology is not established for the Veteran's lymph node cancer, by either the record or by the Veteran's statements. Finally, as the evidence of record indicates that the Veteran's lymph cancer is a direct result of his prostate cancer, and there is no indication in the record of an etiology independent of prostate cancer, there is no shown medical nexus between the Veteran's lymph node cancer and his active service. In arriving at these conclusions, the Board recognizes the statements of the Veteran relating his prostate cancer to the fact that he served on a ship laden with asbestos. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of prostate or any other testicular cancer. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. In addition, a qualified medical opinion is required to link the Veteran's current symptoms to his time in service, especially when it relates to a cancer with a multifactorial etiology. Therefore, the lay statements of belief that the Veteran's prostate cancer is related to his time in service, especially his exposure to Agent Orange or asbestos, are found to lack competency. Unfortunately, based on the evidence of record, the Veteran's claim must be denied. ORDER Service connection for prostate cancer, to include as due to asbestos and/or toxic herbicide agent exposure, is denied. Service connection for lymph node cancer, to include as due to prostate cancer, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs