Citation Nr: 19187642 Decision Date: 11/20/19 Archive Date: 11/20/19 DOCKET NO. 17-43 961 DATE: November 20, 2019 ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for a heart condition is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his prostate cancer is at least as likely as not related to TCE exposure in service. 2. The preponderance of the evidence is against finding that the Veteran’s heart condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria to establish service connection for prostate cancer have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria to establish service connection for a heart condition have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1984 to August 1989. In a separate but companion decision, the Board vacated a March 27, 2019 Board decision deciding the following issues: (1) service connection for prostate cancer and (2) service connection for a heart condition. Here, the Board re-adjudicates those decisions and considers evidence received by VA in April 2019. Service Connection 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). Herbicide Agent Exposure As an initial matter, the Veteran has asserted that his claimed disabilities are due to in-service exposure to an herbicide agent while he was stationed at Marine Corps Air Station (MCAS) El Toro. See, e.g., April 2013 Radiation Risk Activity Worksheet; April 2013 Veteran statement. The Veteran has not asserted that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and is not entitled to a presumption of exposure to herbicide agents. 38 C.F.R. § 3.307. Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has asserted that he was exposed to herbicide agents when moving 55-gallon drums that were marked with “cross bones” and fought a chemical fire in which herbicide agents were burning. See, e.g., December 2010 Veteran statement; June 2011 buddy statement; April 2013 Radiation Risk Activity Worksheet; April 2013 Veteran statement. VA maintains a list of potential locations of exposure to herbicide agents due to testing and storage at military bases in the United States. Herbicide Tests & Storage in the U.S., https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp (last visited November 19, 2019). This listing does not include MCAS El Toro. Moreover, in two Memoranda for the Record, dated in February and June 2013, the AOJ reported that a Department of Defense Memorandum for the Record reported that MCAS El Toro was not among the 71-sites where herbicide agents, such as Agent Orange, were used, tested, or stored. A layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Here, the record is negative for any evidence that the Veteran was exposed to herbicide agents other than his own assertions. While the Veteran is competent to describe what he experienced and witnessed in service, there is no evidence that the Veteran is competent to identify specific chemicals, or to determine what chemicals were stored, transported, or used at MCAS El Toro. As such, the evidence is not sufficient to establish that the Veteran was exposed to herbicide agents. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Under these circumstances, the Board finds that the Veteran was not exposed to herbicide agents in service. Accordingly, the Board will not address the Veteran’s contentions related to herbicide agent exposure further. 1. Prostate Cancer Nevertheless, the Veteran contends that his prostate cancer developed as a result of his exposure to toxic chemicals while stationed at MCAS El Toro between 1984 and 1987. 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 Veteran has a current diagnosis of prostate cancer. See January 2010 private treatment record; December 2015 VA examination report. As noted above, the Veteran contends that his prostate cancer is the result of exposure to toxic substances at MCAS El Toro, asserting that he was exposed while handling 55-gallon barrels or that he was exposed to contaminated ground water. His service treatment records and personnel records demonstrate that the Veteran was stationed at MCAS El Toro from October 1984 until November 1987. See November 1987 service personnel record. Considering first his assertion that he was directly exposed to toxic substances while moving 55-gallon barrels, the Veteran is competent to report that he moved 55-gallon barrels marked with “cross bones” and his MOS of motor vehicle operator is consistent with his assertion that he transported materials. But the Veteran has not claimed that there were any spills or that he was otherwise directly exposed to the contents of the barrels. Moreover, the Veteran’s service treatment records are silent for any reports, complaints, or treatment related to his asserted exposure while moving 55-gallon barrels. The Veteran’s lay assertions alone are not sufficient to establish his claimed exposure. See Bardwell, 24 Vet. App. at 40. Turning to his contention that he was exposed to contaminated groundwater; the Veteran provided several internet articles indicating that there was significant contamination of the soil and ground water at MCAS El Toro and the site was classified as a Superfund Site in 1990. The Environmental Protection Agency (EPA) maintains data on Superfund sites, including MCAS El Toro. EPA Superfund Site: EL TORO MARINE CORPS AIR STATION EL TORO, CA, https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0902770 (last visited November 19, 2019). The EPA website confirms that in 1990, MCAS El Toro was placed on the Superfund program’s National Priorities List (NPL) and a total of 25 potentially contaminated areas were identified, including two large aircraft hangers that were the primary source of volatile organic compound (VOC), primarily trichloroethylene (TCE), contamination detected in groundwater. However, the EPA data also states that no drinking water sources were contaminated. The Agency for Toxic Substances and Disease Registry’s (ATSDR) report on MCAS El Toro also noted that the site was placed on the NPL in 1990 because of the detection of TCE in irrigation wells outside the station boundaries and in monitoring wells inside the station boundary, the highest concentrations of TCE in groundwater would not be expected to cause an increase in cancer cases, and the TCE levels were not considered to be a public health hazard. The report stated that due to the low levels of contaminants detected, and the limited exposure to these contaminants through unintentional contact, adverse health effects were not likely to occur. The Board notes that ATSDR has since archived the report and it is now available at: https://web.archive.org/web/20161217082641/https://www.atsdr.cdc.gov/HAC/pha/PHA.asp?docid=19&pg=0. (last visited November 19, 2019). Based on the information available, it is inconclusive whether the Veteran was exposed to contaminated groundwater at MCAS El Toro. Nevertheless, because both EPA and ATSDR data shows that TCE was detected in groundwater surrounding MCAS El Toro, the Board affords the Veteran the benefit of the doubt and finds that the Veteran was exposed to TCE during service. Accordingly, the first and second Shedden elements are met. Therefore, the fundamental factual dispute in this case is whether the Veteran’s TCE exposure caused his prostate cancer. The record contains conflicting medical opinions. Nevertheless, based on the reasons explained below, to include a new positive nexus opinion, the Board finds a medical link between the Veteran’s prostate cancer and TCE exposure in this particular case. First, a December 2015 VA examiner opined this was not the case. See December 2015 VA examination report. The examiner reviewed medical articles, toxicology reports, EPA data, and the ATSDR report. She explained that studies were not conclusive or definitive on the risk of prostate cancer and TCE exposure. Further, she explained that studies showing an association between TCE exposure and resulting cancers were, for the most part, Occupational Exposures in workers who were exposed chronically over their working life; here, however, the Veteran’s exposure was due to contaminated groundwater in the El Toro Marine base and was for a period of three years in the remote past. As a result, the examiner opined that the Veteran’s exposure would not have been significant, if he had any exposure at all. Id. In contrast, Dr. J.R., a board-certified urologist specializing in cancer care, opined that TCE had been shown to result in an increased incidence of prostate cancer, citing medical research in support of that proposition. See September 2013 Dr. J.R. letter. Recently, Dr. J.R. submitted a more concrete positive nexus opinion; his reasons for the link as applied to this particular Veteran involve the following: (1) the Veteran does not have a family history of prostate cancer and does not have any “more likely” risk factors and (2) he was diagnosed at a young age with significant prostate cancer, which suggests that age is not the primary risk factor for this Veteran. See April 2019 Dr. J.R. medical opinion. Importantly, “based on the absence of a more likely cause – no family history, no other post-service occupational exposures, diagnosis at an early age with significant prostate cancer – it is [Dr. J.R.’s] opinion that the Veteran’s prostate cancer is related to his exposure to hazardous chemicals while stationed at El Toro MCAS during his military service.” Id. It is the Board’s duty to assess the credibility and probative value of evidence, and, if it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). In applying the Nieves-Rodriguez criteria to the conflicting medical opinions, the VA examiner and Dr. J.R. are both shown to have reviewed the medical record and to be fully informed of the Veteran’s medical history. However, review of the claims file, in and of itself, does not make a medical opinion probative. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” 22 Vet. App. at 304. The medical opinion provided by the VA examiner in December 2015 contains detailed clinical rationale showing why the Veteran’s particularized exposure to TCE likely did not contribute to prostate cancer. By comparison, Dr. J.R. also noted a generalized link between prostate cancer and TCE exposure, but also went further by explaining how other factors were not relevant in the development of prostate cancer in this Veteran. As a urologist specializing in cancer and treating the Veteran for 11 years, Dr. J.R. is in a unique position to observe the etiology and pathophysiology of the Veteran’s prostate cancer. In sum, the December 2015 VA examiner’s opinion is probative to the extent it describes the likelihood of shortened TCE exposure in the Veteran contributing to prostate cancer; however, unlike Dr. J.R., she did not discuss what caused or contributed to the Veteran’s prostate cancer. In contrast, Dr. J.R. noted the absence of likely causes and the aggressiveness of the disease in the Veteran; from this information, he deduced it was at least as likely as not that the Veteran’s prostate cancer developed from TCE exposure. Thus, as Dr. J.R. suggested, a plausible etiology and pathophysiology for the Veteran’s prostate cancer while ruling out other factors, the Board finds his opinion to have more probative weight. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds that, in this particular case, there is medical evidence of record establishing a link between the Veteran’s prostate cancer and TCE exposure. Accordingly, the Board finds that a grant of service connection is warranted for prostate cancer. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Heart Condition The Veteran contends that his heart disability developed as a result of his exposure to toxic chemicals while stationed at MCAS El Toro between 1984 and 1987. 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. As noted above, the Board has conceded exposure to TCE. However, the preponderance of the evidence weighs against finding that the Veteran’s heart disability began during service or is otherwise related to an in-service injury, event, or disease, including his claimed toxic exposure. Private treatment records show the Veteran was not diagnosed with non-ischemic cardiomyopathy until September 2001, more than a decade after his separation from service. At the time of his diagnosis, the Veteran's physician reported that he suspected that the Veteran's alcohol use contributed to his cardiomyopathy. See September 2001 private treatment record. Further, the December 2015 VA examiner opined that the claimed heart condition was less likely than not related to his claimed in-service exposure to contaminated ground water at El Toro. See December 2015 VA examination report. The examiner stated that the Veteran did not have ischemic heart disease (IHD) but had a non-ischemic cardiomyopathy that was most likely due to his excessive alcohol use long term. Id. The examiner explained that TCE is not known to cause IHD, though some cardiotoxicity was found in the fetus of exposed female rats. Importantly, the examiner noted that the Veteran had a strong family history of heart disease and explained that his history, along with tobacco use, hypertension, hyperlipidemia, and being male would be the mostly likely recognized and established risk factors for the development of IHD, which he had not been diagnosed with. 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). The Veteran believes his heart disability is related to an in-service injury, event, or disease. However, the Veteran has not been shown competent to provide a medical nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2015 VA examiner’s opinion. The Board also notes that Dr. J.R., who provided a nexus opinion linking the Veteran’s prostate cancer to TCE exposure, acknowledges the Veteran thought this exposure contributed to the development of “prostate cancer and a heart condition.” See April 2019 Dr. J.R. medical opinion. However, after evaluating the same evidence, Dr. J.R. did not provide an opinion as to whether TCE caused the Veteran’s heart condition. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt doctrine is not for application. Therefore, entitlement to service connection for a heart condition is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.