Citation Nr: 18149001 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-10 194 DATE: November 8, 2018 ORDER Entitlement to service connection for prostatitis is granted. Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s prostate cancer is related to his active military service or that it was caused or aggravated by any service connected disability. 2. The evidence is in relative equipoise as to whether the Veteran’s current prostatitis is related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostatitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1958 to May 1961. This matter comes before the Board on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This case has been remanded for adjudication by the Board in accordance with a January 2016 decision. As an introductory matter, the Board notes that in the Veteran’s March 2014 Substantive Appeal (Form 9) he requests a “15% increase for my prostatitis claim…” The Veteran appears to be asking for an increased rating for his prostatitis for which he was denied service connection in 2012. However, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons, 23 Vet. App. at 5. The Veteran adequately described his prostatitis claim in his Form 9 while misstating the relief he was seeking on appeal. Accordingly, the Board will treat this statement as an appeal of the denial of service connection for prostatitis. Service Connection To establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Service Connection for Prostatitis The evidence of record indicates that the Veteran suffers from recurrent prostatitis that began during service. April 1961 STRs shows that the Veteran sought treatment for chronic prostatitis while in service. Further, the Veteran reported in January 2012 that he was still suffering from chronic prostatitis. In February 2014, the Veteran stated that his prostatitis continued throughout the years and “could not be cleared up.” In January 2016, the Veteran again reported that his prostatitis had continued over the years since leaving service. Specifically, he stated: “Over the years I continued to go to the doctors and I was given medicine that never cleared it up.” The Veteran’s statements are bolstered by a September 2011 letter from his private treating urologist stating that recurrent prostatitis could be one of the risk factors that might cause prostate cancer. The Veteran is competent to report observable symptoms such as pain, discomfort, irritation or flare-ups associated with prostatitis. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the evidence reflects that the Veteran’s prostatitis had its onset in service and that the symptoms have persisted since that time, and service connection is warranted for prostatitis. See 38 C.F.R. §§ 3.102, 3.303; Shedden, 381 F.3d at 1167. 2. Service Connection for Prostate Cancer I. Herbicide Agent Exposure Service connection can be established on a presumptive basis for certain diseases, including prostate cancer, associated with in-service exposure to herbicide agents. See 38 U.S.C. § 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). There is also a presumption of exposure to herbicides for Veterans with service in Vietnam during specific time periods, or service in specific areas of Korea during specific time periods. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.309 (e) (2017). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309 (e) (2017) to be applicable. Exposure to herbicide agents is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record and verified through the appropriate service department or other sources, the presumption of service connection found in 38 C.F.R. § 3.309 (e) (2017) for herbicide-related diseases is applicable. The Veteran claims that his prostate cancer was potentially caused by his exposure to herbicides while serving in Parris Island, South Carolina. Because the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309 (e) (2017) to be applicable. The VA asked the Veteran to explain and provide additional details regarding his herbicide exposure in May and October 2016. In April 2017, the Veteran’s representative sent an email to the VA central office requesting corroboration of the Veteran’s claimed herbicide exposure. In February 2018, the VA issued an administrative decision finding that further research into the Veteran’s claimed herbicide exposure would not benefit the Veteran. The decision explains that the Department of Defense has not identified Parris Island, South Carolina as a location where Agent Orange was used, tested, stored, or transported. Further, Agent Orange was not developed until 1962, four years after the Veteran’s claimed exposure. The Veteran has had multiple opportunities to clarify and provide further details regarding his claimed exposure to herbicides and has failed to do so. The Board finds that the Veteran is not entitled to presumptive service connection. Notwithstanding the above, a claimant is not precluded from establishing in-service herbicide exposure on a direct basis. Here the Veteran has asserted that he was exposed to Agent Orange while stationed at Parris Island, South Carolina. However, the DoD has provided VA with a list of locations outside Vietnam and the Korean DMZ where herbicide agents were used, tested, or stored; and that list does not include Parris Island. It was also noted that Parris Island was not part of the shipping supply line for herbicide agents. The DoD has further indicated that herbicide agents were developed specifically for the Vietnam War for use between 1962 and 1971, which falls after the Veteran’s service period. The Board finds that the information from the DoD is more probative than the Veteran’s statements on the issue of whether the Veteran was exposed to herbicide agents. It is specialized information that is thorough and supported by research. The Board does not doubt the sincerity or the honesty of the Veteran’s statements but does find that they are inaccurate. Therefore, the preponderance of the evidence is against finding the Veteran was exposed to herbicide agents while stationed at Parris Island. As the Veteran’s exposure to herbicide agents cannot be established, the presumption of service connection associated with such exposure cannot be applied. Further, the presumption associated with chronic diseases also cannot be applied because the Veteran has denied that the condition manifested in service, manifested to a compensable degree within one year of separation, or that there was a continuity of symptoms since service. Additionally, because exposure to herbicide agents cannot be established, service connection for prostate cancer cannot be granted on the basis of herbicide agent exposure. II. Camp Lejeune Contaminated Water Alternatively, the Veteran contends that his prostate cancer may have developed due to exposure to contaminated drinking water at Camp Lejeune. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (last updated January 28, 2013). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011) (citing the National Academy of Sciences National Research Council (NRC)’s report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.”). Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Id. at 6. VA has recently established a presumption of service connection for certain diseases for claimants who were exposed to contaminants in the water supply while serving at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987. See 38 U.S.C. §§ 1101, 1112, 1137; Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. §§ 3.307, 3.309). However, prostate cancer is not included on the list of presumptive diseases and therefore the Veteran is not entitled to presumptive service connection for prostate cancer due to his presumptive exposure to contaminants at Camp Lejeune. This does not preclude establishing service connection on a direct basis, as discussed below. The Veteran served at Camp Lejeune from August 1958 to October 1958, and again from January 1961 to May 1961, a total period of 180 days. A May 2017 VA examiner opined that it is less likely than not that the Veteran’s prostate cancer is caused by or a result of his presumptive exposure to contaminated water at Camp Lejeune, noting that the Veteran had “limited” exposure (only 180 days) and citing to several occupational studies suggesting that substantial occupational exposure (at least 5 years) may increase the risk of developing prostate cancer. The examiner also noted that several studies have found no increase in such risk even with substantial exposure. The Board finds that the examiner provided a reasoned medical explanation connecting his negative nexus opinion with supporting data (including medical facts specific to the Veteran and medical principles derived from the literature as well as the examiner’s training and experience). The opinion is thorough, carefully explained, and persuasive. The Board assigns it substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that the Veteran is not entitled to direct service connection for his prostate cancer due to his exposure to contaminants at Camp Lejeune. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). III. Prostatitis as Cause of Prostate Cancer Finally, the Veteran contends that his [now service-connected] prostatitis is the cause of his prostate cancer. As noted above, service connected has been granted for prostatitis. Secondary service connection is awarded when a disability "is proximately due to or the result of a service connected disease or injury." 38 C.F.R. § 3.310(a) (2015). "Additional disability resulting from the aggravation of a nonservice-connected condition by a service connected condition is also compensable under 38 C.F.R. § 3.310(a)." Libertine v. Brown, 9 Vet. App. 521, 522 (1996). The Veteran underwent a VA examination in May 2017. The examiner opined that the association between chronic prostatitis as a definite risk factor for prostate cancer has not been proven. Further, the examiner provided a thorough analysis of the Veteran’s non-service-related risk factors for developing prostate cancer, including his age and his genetics (the Veteran has a family history of prostate cancer). Ultimately, the examiner concluded that it was less likely than not that the Veteran’s prostate cancer result from his [now-service-connected] prostatitis. The Board has also considered an August 2011 Correspondence from the Veteran’s private treating urologist stating that “[i]t is well-known that recurrent prostatitis could be one of the risk factors to cause prostate cancer.” In addition, a September 2011 letter from the same urologist stated that “the development of [the Veteran’s] prostate cancer is at least as likely as not related to his recurrent prostatitis.” The Board acknowledges this physician’s familiarity with the Veteran but can only assign these opinions minimal probative weight. The physician merely stated conclusions without a supporting explanation (rationale) and without specific reference to the Veteran’s medical history or medical literature. Upon careful consideration of the evidence, the Board assigns more probative weight to the May 2017 VA examiner’s opinion because examiner conducted a thorough examination and review of the relevant facts and medical principles, including the Veteran’s medical history and the pertinent medical literature. The examiner provided a reasoned medical explanation connecting his negative nexus opinion with supporting data (including medical facts specific to the Veteran and medical principles derived from the literature as well as the examiner’s training and experience). The opinion is thorough, carefully explained, and persuasive. The Board assigns it substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered the August 2018 post-remand IHP filed by the Veteran’s VSO representative. The IHP responds to the June 2018 SSOC issued by the RO stating that the evidence does not show that the Veteran’s prostatitis or cancer are “chronic” conditions and therefore cannot be granted service connection. The VSO argues that a remand is necessary to address the issue of chronicity which has been inadequately developed. While prostate cancer is a chronic disease listed under 38 C.F.R. § 3.309, there is no evidence that it manifested to a compensable degree within a year or that the Veteran reported persistent or recurrent symptoms of prostate cancer following service. Accordingly, the Board finds that service connection on the basis of exposure to contaminated water at Camp Lejeune is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Law Clerk