Citation Nr: 18156251 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 14-28 503 DATE: December 7, 2018 ORDER Service connection for allergic rhinitis is denied. Service connection for right kidney tumor is denied. Service connection for prostate cancer is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s allergic rhinitis was aggravated beyond its natural progression by his active duty service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran’s kidney tumor is due to a disease or injury in service, or that the Veteran’s kidney tumor manifested during service or to a compensable degree within a year of service separation. 3. The preponderance of the evidence is against finding that the Veteran’s prostate cancer is due to a disease or injury in service, or that the Veteran’s kidney tumor manifested during service or to a compensable degree within a year of service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, (2017). 2. The criteria for service connection for a right kidney tumor have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). 3. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1952 to August 1955. This matter is on appeal from a September 2013 rating decision which, in pertinent part, denied service connection for allergic rhinitis, a right kidney tumor, and prostate cancer. In February 2017, the Board remanded the case to obtain new VA examinations related to the claims for service connection for allergic rhinitis, prostate cancer, and removal of a kidney tumor. The Board is satisfied that there has been substantial compliance with the Board’s directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge and a transcript of the hearing has been associated with the record. Service Connection Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Service connection for chronic diseases listed in 38 U.S.C. sections 1101 (3) and 38 C.F.R. § 3.309 (a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). 1. Entitlement to service connection for allergic rhinitis The Veteran contends that his allergic rhinitis was aggravated by service, specifically when he was sprayed with DDT during active duty. The Veteran testified that he was sprayed with DDT and other pesticides in order to protect soldiers against contacting malaria. The Board concludes that the Veteran has a current diagnosis of allergic rhinitis that was not aggravated beyond the natural progression of the disability during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.306. First, the Board finds that the presumption of soundness does not apply because The Veteran’s August 1952 entrance examination noted that the Veteran had “periodic nasal congestion and hay fever symptoms also considered sinusitis” for the four years prior to enlistment and that the Veteran had been treated with allergy shots for a dust allergy and that the Veteran takes occasional antihistamines which help his symptoms and are not disabling. A veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except (1) as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or (2) where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). Only such conditions as recorded in examination reports are to be considered as “noted,” and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. See 38 C.F.R. § 3.304 (b); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Next, the evidence shows it is at least as likely as not that the disability was not aggravated by service. Where the injury or disease at issue is noted at the time of the examination, acceptance, and enrollment for service, it is characterized as pre-existing and will be considered to have been aggravated by active military service where there is an increase in disability during such service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of aggravation is rebutted when VA shows by clear and unmistakable evidence that the pre-existing injury or disease underwent an increase in severity due to the natural progress of the disease during wartime service or peacetime service after December 31, 1946. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As noted above, the August 1952 preinduction examination noted that the Veteran suffered from periodic nasal congestion and hay fever symptoms which were not disabling. Other service medical records also note a history of chronic pulmonary inflammatory disease. A January 1954 service medical record notes that he sought medical attention for chest pain. And a January 1955 medical record shows that he underwent a chest X-ray and small calcifications were noted. The Veteran underwent a VA examination in March 2017 which revealed a diagnosis for allergic rhinitis. The Veteran told the examiner that he developed pulmonary symptoms but not nasal symptoms or hay fever when on active duty deployed in Korea. The Veteran told the VA examiner “my hay fever did not get worse when I was in Korea or in the Marines” but that his “lungs gave out” due to the cold weather in Korea. The VA examiner noted that there was not more than 50% obstruction of both nasal passages and no complete obstruction of either the right or left nasal passage. No polyps, permanent hypertrophy, or granulomatous conditions were noted. The examiner noted that the Veteran can inhale fully through each nostril separately. There was healed scarring with mild atrophy of the mucosa on the medial side of the left nostril. The cartilaginous septum appeared to be deviated to the right but is not occluding or obstructing in any way. The VA examiner opined that it was not as least as likely as not that the hay fever and sinusitis noted on the Veteran’s entrance exam increased in severity during service or that his currently diagnosed allergic rhinitis was had it onset during service or was due to or the result of in-service exposure to chemicals at Camp Pendleton. The VA examiner noted that the Veteran’s hay fever was treated before service with desensitization treatment. The examiner explained that such treatment does not “cure” the condition and a person will remain susceptible the rest of his life. The VA examiner noted that the Veteran did not report, and there is no evidence of, any hay fever or allergic rhinitis symptoms or episodes related to his service at Camp Pendleton. A February 2013 private treatment record shows that the Veteran had recurrent allergic rhinitis which is treated with a nasal spray. While the Veteran submitted medical studies related to DDT, there is no medical evidence supporting the Veteran’s contention that his exposure to DDT aggravated his pre-existing disability. While the Veteran is competent to report having experienced symptoms of allergic rhinitis, he is not competent to opine whether his exposure to DDT or other pesticides caused his allergic rhinitis beyond its natural progression. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran’s allergic rhinitis is not at least as likely as not aggravated by an in-service injury, event, or disease, including his exposure to DDT and other pesticides during service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the February 2013 VA examiner’s opinion. Based on the foregoing, it is not as least as likely as not that the Veteran’s allergic rhinitis began, was caused by, or aggravated by the Veteran’s exposure to DDT and other pesticides, or otherwise related to the Veteran’s service, service connection cannot be granted. 2. Entitlement to service connection for right kidney tumor The Veteran contends that he had a right kidney tumor which was related to his active duty service, to include being exposed to DDT and other pesticides while on active duty. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the medical evidence shows that the Veteran underwent a medical procedure to remove a lesion on the Veteran’s right kidney in 2010, and the Board finds credible the Veteran’s testimony that he was exposed to DDT and other pesticides during service, the preponderance of the evidence weighs against finding that the Veteran’s right kidney tumor began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Medical evidence shows that Veteran’s right kidney tumor was not discovered until 2009, more than five decades after his separation from service. While the Veteran is competent to report that he underwent the procedure to remove the lesion on his kidney, he is not competent to provide a diagnosis in this case or determine that the kidney tumor was related to his exposure to DDT. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran underwent a VA examination in March 2017. The 2017 VA examiner opined that the Veteran’s right kidney lesion was not at least as likely as not related to an in-service injury, event, or disease, including his exposure to DDT. The rationale was that exposure to chemicals, include DDT, is not known to be a cause of renal cell carcinoma or any other type of renal tumor. Further, the examiner was certain that no diagnosis of a kidney condition occurred within one year of the Veteran’s discharge from active duty in 1955. The VA examiner further noted that no further treatment related to the kidney lesion was necessary or performed. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his right kidney tumor is related to an in-service injury, event, or disease, including exposure to DDT and other pesticides, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the VA examiner, and service connection must be denied. 3. Entitlement to service connection for prostate cancer The Veteran contends that he has prostate cancer which was related to his active duty service, to include being exposed to DDT and other pesticides while on active duty. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the medical evidence shows that the Veteran was diagnosed with prostate cancer in November 2009, and the Board finds credible the Veteran’s testimony that he was exposed to DDT and other pesticides during service, the preponderance of the evidence weighs against finding that the Veteran’s prostate cancer began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Medical evidence shows that Veteran’s prostate cancer was diagnosed in 2009, more than five decades after his separation from service. The Veteran underwent radiation treatment in 2010 and has since completed treatment. The Veteran reports having a voiding dysfunction, but reports that he has had “surveillance” PSA tests are not concerning to his physicians. While the Veteran is competent to report that he has had a diagnosis and treatment for prostate cancer, he is not competent to determine that the prostate cancer was related to his exposure to DDT or other pesticides. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran underwent a VA examination in March 2017. The March 2017 VA examiner opined that the Veteran’s prostate cancer was not at least as likely as not related to an in-service injury, event, or disease, including his exposure to DDT or other pesticides. The rationale was that, other than exposure to the herbicide agent known as “Agent Orange,” and chlordecone, there are no known exposure to chemicals, include DDT, that are known to cause prostate cancer. Further, the examiner noted that at least 30% of men will have prostate cancer by they reach the Veteran’s age. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his prostate cancer is related to an in-service injury, event, or disease, including exposure to DDT and other pesticides, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). (Continued on the next page)   Consequently, the Board gives more probative weight to the opinion of the VA examiner, and service connection must be denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel