Citation Nr: 18149673 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 10-46 580 DATE: November 14, 2018 ORDER Service connection for sleep apnea, to include as due to exposure to hazardous/toxic materials, is denied. Service connection for prostate cancer with erectile dysfunction and urinary incontinence, to include as due to exposure to hazardous/toxic materials, is denied. Service connection for hematuria, to include as due to exposure to hazardous/toxic materials, is denied. Service connection for diabetes mellitus type II (diabetes), to include as due to exposure to hazardous/toxic materials, is denied. Service connection for hypertension, to include as due to exposure to hazardous/toxic materials, is granted. FINDINGS OF FACT 1. The Veteran’s sleep apnea was not incurred in and is not due to his time in service, nor is it proximately due to any service connected disabilities. 2. The Veteran’s prostate cancer with erectile dysfunction and urinary incontinence was not incurred in and is not due to his time in service, nor is it proximately due to any service connected disabilities. 3. The Veteran’s hematuria was not incurred in and is not due to his time in service, nor is it proximately due to any service connected disabilities. 4. The Veteran’s diabetes was not incurred in and is not due to his time in service, nor is it proximately due to any service connected disabilities. 5. The Veteran’s hypertension was incurred in and is due to his time in service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for prostate cancer with erectile dysfunction and urinary incontinence have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for hematuria have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1978 to June 1981. The Veteran also had periods of active service with the Army National Guard from July 1981 to June 2006. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time, even if there is no record of evidence of such disease during the period of service. In the instant case, the record confirms that the Veteran served in Thailand during the requisite time period and, therefore, he is presumed to have been exposure to herbicide agents coincident with such service. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii). The Veteran contends his disabilities were incurred in and due to his time in service, to include exposure to hazardous materials that were burned while he was on active duty. The Veteran has been diagnosed with prostate cancer, hematuria, sleep apnea, hypertension, and diabetes. The Board has reviewed the Veteran’s service treatment records (STRs) and finds them negative for any treatment or complaint of prostate problems, erectile, or urinary problems, sleep apnea, hypertension, or diabetes, or any indication of such a problem, providing some evidence against this claim. In a July 2009 statement, the Veteran said in August and September 2001, he was deployed to Alaska in support of Operation Alaskan Road. The Veteran reported his duty was to provide environmental support associated with the shutdown of the 2001 construction season. Specifically, the Veteran was directly involved in the disposal of hazardous waste which had accumulated throughout the construction season. The materials included waste diesel fuel, greases, oils, bilge water, and other various solvents. These materials were disposed of by open burning. The Veteran said waste was burned every day for the duration of his duty without any type of protective clothing other than his duty uniform. The Veteran said these materials probably contained dioxins. The Veteran’s own statements, as cited above, suggest that the Veteran himself is not sure the material in question contained dioxins. The Veteran reported he was diagnosed with prostate cancer in November 2004 and subsequently had a prostatomy in 2005 and now suffers from erectile dysfunction and incontinence. The Veteran believed his time in Alaska and exposure to hazardous materials caused his medical conditions. The Veteran’s personnel records show he was on active duty during the time period in question in September 2001. In a September 2009 statement, the Veteran’s spouse stated the Veteran suffered from deep depression when he was diagnosed with cancer. The Veteran’s spouse stated he had no sex drive and the distance between the two of them created by this and the Veteran’s erectile dysfunction had strained their marriage. A letter submitted in December 2009 by a fellow service member stated the service member served with the Veteran in September 2001. The fellow service member said their specific duties included disposing of hazardous waste materials. This case was previously before the Board in January 2014 and was remanded in part to verify whether the Veteran was exposed to hazardous materials and if so, what types of chemicals he was exposed to. A November 2017 letter from the Missouri Army National Guard Environmental Manager stated there were no fires authorized at base camp, providing highly probative evidence against this claim. The ash burners and burn quarry were the only authorized places for fires, all hazardous materials were to be immediately reported to the Environmental Officer, all trash was to be separated into the appropriate containers, all burnable trash was to be burned, slash piles were to be burned on the work sites, soldiers on “Kitchen Police” duty were responsible for burning trash from the base camp, and maintenance personnel were to be responsible for burning Hemlock Bay trash. The Environmental Management officer stated they were unable to confirm the burning of spent oil from operations, contaminated diesel, benzene, ethylbenzene, and dioxins. The Board finds the Veteran and his fellow service member are both credible and competent to report where they were stationed, what they saw, and what their duties were. However, neither the Veteran or his fellow service member are competent to determine the chemical make-up of what was burned and the effects those chemicals may or may not have had on the Veteran’s health. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, exposure to dioxin or other specific chemicals and hazardous materials cannot be the basis for a finding of presumptive service connection. They themselves indicate that the do not know what was in these fires. While an August 2018 examiner opined the Veteran’s diabetes, hematuria, and prostate cancer were at least as likely as not due to his time in service, due to exposure to dioxin, the Veteran’s exposure to dioxin has not been confirmed. There is simply no evidence to support this finding, and evidence against this finding. The August 2018 examiner also opined the Veteran’s erectile dysfunction and urinary incontinence were due to his prostate cancer. However, as the Veteran is not service connected for prostate cancer, it cannot be the basis for a finding of secondary service connection. Regarding the Veteran’s claims above, the Board acknowledges and has considered the Veteran’s, his fellow service member’s, and spouse’s statements that his conditions bother him, causes him pain and discomfort, and that he believes his disabilities are due to his time in service, including his exposure to toxic agents while serving in Alaska. The Board also recognizes the Veteran continues to seek medical treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology, of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that some of the medical evidence, such as the August 2018 examination, support the Veteran’s contentions. However, the Board must also take into account other evidence, such as the November 2017 letter from the Missouri Army National Guard Environmental Manager, showing there were no fires authorized at base camp and that exposure to certain toxins could not be confirmed. Therefore, as stated above, because the Veteran’s exposure to dioxin and other toxins, which was the basis for the August 2018 nexus opinion, cannot be confirmed, and in fact we know have evidence against this claim of high probative value, the Board provides less probative value on the August 2018 examination opinion regarding these claims. Turning to the Veteran’s claim of service connection for hypertension on a direct basis, the Board notes the August 2018 examiner noted the Veteran’s STRs show the Veteran had pre-hypertension that would also qualify for hypertension while in service. Additionally, the examiner opined the Veteran’s hypertension was at least as likely as not due to his time in service. Therefore, direct service connection for hypertension is warranted. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel