Citation Nr: 18100872 Decision Date: 04/23/18 Archive Date: 04/23/18 DOCKET NO. 14-38 183A DATE: April 23, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER Entitlement to service connection for prostate cancer, to include as due to ionizing radiation and asbestos is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s prostate cancer was incurred in or aggravated by service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to November 1982. The Board notes that in June 2015, the Agency of Original Jurisdiction (AOJ) reduced the Veteran’s disability rating for eczema from 60 to 10 percent disabling effective September 1, 2015. After the Veteran submitted a timely notice of disagreement (NOD), the AOJ issued a letter acknowledging receipt and has undertaken further development of the issue. Therefore, no action is warranted by the Board under Manlincon v. West, 12 Vet. App. 238, 240-41 (1991). Entitlement to service connection for prostate cancer, to include as due to ionizing radiation and asbestos. I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA’s duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[A]bsent extraordinary circumstances . . . it is appropriate for the Board and the [United States Court of Appeals for Veterans Claims] to address only those procedural arguments specifically raised by the veteran . . . .” Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran’s VA and identified private treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. A VA examination is not required as there is no credible expert or non-expert evidence indicating that the Veteran’s prostate cancer began in service or was related to a disease, injury, or event in service as discussed in the decision below. 38 C.F.R. § 3.159(c)(4); see also McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, the Board finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. II. Service Connection The Veteran avers that exposure to ionized radiation, asbestos, and petrochemicals caused his prostate cancer. See March 2010 VA Form 21-526; see also May 2012 VA Form 21-526b. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran 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). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). For diseases related to ionizing radiation, there are two additional methods by which service connection may be established: (1) presumptively for enumerated “diseases specific to radiation-exposed veterans” listed in 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d); and (2) directly with the aid of special development procedures for particular “radiogenic diseases” listed in 38 C.F.R. § 3.311. There is no specific statutory guidance with regard to asbestos related claims, nor has the Secretary promulgated any regulations in regard to such claims. Nevertheless, the M21-1 (Developing Claims for SC for Asbestos-Related Diseases) does provide guidance. See M21-1, pt. IV, subpt. ii, §1.I.3 (last accessed on April 18, 2018). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). The applicable section of the M21-1 notes a Veteran’s probability of asbestos exposure can be classified by military occupational specialty (MOS). If an MOS is listed as minimal, probable, or highly probable, asbestos exposure should be conceded for the purposes of scheduling an examination. See M21-1, pt. IV, subpt. ii, § 1.I.3.d (last accessed on April 18, 2018). The first Shedden element is met. The Veteran has been diagnosed with prostate cancer. See August 2005 VA treatment record. As prostate cancer is a radiogenic disease, the AOJ obtained the Veteran’s record of occupational exposure to ionizing radiation. See DD Form 1141. That document showed that the Veteran had not been exposed prior to December 7, 1981 and did not further record any exposure after that date. Further, a letter from the Naval Dosimetry Center (NDC) stated that a review of their registry, by name, service number, and social security number, revealed no reports of occupational exposure pertaining to the Veteran. See May 2011 NDC letter. As such, the Board concludes that the Veteran was not exposed to ionizing radiation during active duty. As to petrochemical exposure, the Veteran has stated that he was in constant contact with paint and solvents such as red lead and zinc chromate primers, methol ethyl ketone (MEK) and paint thinners. See March 2011 Veteran statement. The Veteran also stated that he would clean all of the primer/paint off his skin with whatever solvent that worked best with the individual paint. Id. He was exposed to this for “well over 4 months.” Id. Statements from fellow soldiers corroborate his account. See, e.g., March 2011 G.C. statement. Further, as to asbestos exposure, the Veteran was a gunner mate technician according to his DD Form 214. As such, exposure to asbestos is conceded. See M21-1, pt. IV, subpt. ii, § 1.I.3.d (last accessed on April 18, 2018). Therefore, the second Shedden element is met. However, the Veteran has not submitted any evidence linking asbestos exposure to prostate cancer. Further, after trying to elicit a positive nexus opinion from the medical professional who removed the Veteran’s prostate, the Veteran’s physician stated that “because there is no official statement by the American Urological Association establishing a cause-effect relation between petrol chemicals and/or radiation exposure and prostate cancer, I cannot add any credible support to your claim.” See September 2012 Dr. R.S. letter. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran’s prostate cancer is causally related to service cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran’s prostate cancer is not within the realm of knowledge of a non-expert, and concludes that his nexus opinion in this regard is not competent evidence and therefore not probative of whether his prostate cancer is attributable to his active duty service. As the Veteran’s only evidence suggesting a nexus between an in-service event and his current disability is lay evidence that he is not competent to offer, a VA examination is not needed. See Waters v. Shinseki, 601 F.3d 1274, 1277-88 (Fed. Cir. 2010) (holding that the Board’s use of “competent medical evidence” in discussing whether there is an association with service is harmless error when the record contains no evidence that the Veteran’s condition was related to service other than his own statements suggesting a link); see also McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006) (holding that a medical examination is not necessary unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability). Thus, the Board denies the Veteran’s claim of entitlement to service connection for prostate cancer because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REMANDED ISSUE Entitlement to a total rating based on individual unemployability (TDIU) is remanded for additional development. The Veteran claims he cannot work due to eczema. See October 2014 Dr. R.T. medical opinion. In December 2015, the Veteran filed a NOD to a June 2015 rating decision which reduced the Veteran’s disability rating for eczema from 60 to 10 percent disabling, effective September 1, 2015. The AOJ, after acknowledging the Veteran’s NOD, has not completed development on that issue. See August 2016 letter. As the Veteran avers he cannot work due to eczema, his claim for TDIU is inextricably intertwined with the rating reduction claim not currently before the Board. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: Upon completing development and readjudication of the eczema reduction issue, and any other development deemed necessary, readjudicate the issue of entitlement to a TDIU. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel