Citation Nr: 20042234 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 16-04 977 DATE: June 22, 2020 ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT Giving the benefit of the doubt to the Veteran, the competent evidence is at least evenly balanced as to whether the Veteran’s current prostate cancer, including as due to asbestos, lead, radiation, or other hazardous substance exposure (collectively hazardous substances) is related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.307, 3.309, 3.111. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from December 1957 to September 1959. The Veteran also was a member of the United States Navy Reserve from October 1952 to December 1957, to include a period of Active Duty for Training (ACDUTRA) in June 1954. This matter returns to the Board of Veterans’ Appeals (Board) after a July 2018 remand for additional development related to the appeal of a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which is the agency of original jurisdiction (AOJ). Prior to the claim on appeal, the Veteran filed an original claim for entitlement to service connection for prostate cancer, which was denied in September 2013. The Veteran received proper notice but did not file a timely appeal and the Board concluded in its May 2017 decision that the September 2013 decision became final. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for prostate cancer. The Veteran contends that his prostate cancer is due to his exposure to hazardous substances while he was in the service. The hazardous substances include asbestos, lead, and/or repeated radiation exposure. The VA concedes that the Veteran has a current disability of prostate cancer which was diagnosed in 2002. Therefore, the only question remaining is whether his prostate cancer was caused by or is related to his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain delineated chronic disorders service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Prostate cancer is a disability listed in 38 C.F.R. § 3.309. When a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). If the claimed disease is not given a presumptive service connection under 38 C.F.R. § 3.309, the Veteran may still establish service connection on a direct basis. See 38 U.S.C. § 1113 (b) (2012); 38 C.F.R. § 3.303 (d) (2017) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). This includes disabilities resulting from exposure to a hazardous substance such as asbestos, lead, or radiation. The Board is to consider all information and lay and medical evidence of record in a case before it. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Veteran’s lay evidence states that he was exposed to asbestos from pipes and open areas in the boiler room and his sleeping quarters, while stationed on a U.S. Naval Destroyer Escort. He was exposed to lead paint due to paint chipping maintenance while onboard his ship. He asserted that he was repeatedly exposed to radiation without adequate protection due to numerous dental procedures over a 53-week period while stationed in Alaska. He also states that he is not a smoker and that after he left the service he worked as a grocery store manager. He did not identify any other incidents of exposure to asbestos, lead, radiation, or other hazardous substance. After review of the record, the Board finds the Veteran to be both competent and credible to provide lay evidence concerning the his in service experiences and the incidents related to his exposure to hazardous substances, his symptoms related to his medical conditions, and their functional impact on his life and occupation. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159 (a). The Veteran and his representatives submitted several articles which addressed links between prostate cancer from exposure to hazardous substances, including asbestos and lead paint. The Veteran submitted in support of his claim an article titled “Presence of Asbestos Bodies in Organs Other than the Lung,” which showed the presence of asbestos bodies found in the prostates of test subjects. See, Table 2- Asbestos Bodies Found in Nine Different Organs in Relation to Number Found in Small Specimen of Pulmonary Tissue, page 136. Another article was submitted by the Veteran titled “Environmental Exposure to Lead as a Risk for Prostate Cancer” showed data that suggests environmental exposure of aging males to lead may be a risk factor for prostate cancer and/or benign prostate hyperplasia. In its December 2017 remand decision, the Board found that the VA examiner did not address a December 1959 VA examination in which a prostate infection was noted, as well as a failure to address the article submitted by the Veteran. The Board’s remand instructions specifically requested the examiner to assist the Board by providing an addendum opinion on these matters. Unfortunately, the December 2019 addendum opinion provided by the VA examiner in response to the Board’s December 2017 remand did not address the items requested in the remand instructions. Read in conjunction with the earlier VA examiner opinion, the examiner did not specifically address the articles submitted and referenced by the Veteran, but instead reiterated his previous reliance on the earlier opinion based on a different general treatise from different authors. Additionally, neither opinion from the VA examiner directly addressed the Veteran’s lay statements concerning his exposure to hazardous substances or any potential etiology of his prostate cancer as it relates to the impact of the Veteran’s stated exposure to asbestos, lead or radiation. The Board finds the October 2017 and December 2019 examinations and opinions provided by the VA examiner to be inadequate and of no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board is free to make its own assessment of medical evidence and is not compelled to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.” Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by the full repertoire of clinical evidence of record. Black v. Brown, 5 Vet. App. 177, 180 (1995). Here, the VA examiner was tasked with addressing the positive evidence provided by the Veteran but did not do so and further did not consider all relevant facts and therefore cannot have adequately differentiate that evidence. This does not assist the Board in its review. The Board is not competent to and cannot make its own medical opinions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Without a competent and adequate medical opinion to distinguish and differentiate the positive evidence submitted by the Veteran, the Board finds that the evidence is at least in a state of relative equipoise and resolves any reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, Gilbert 1 Vet. App. 53. As such, the evidence does not preponderate against the claim to permit the Board to deny it on its merits. Alemany, 9 Vet. App. at 519, citing Gilbert, 1 Vet. App. at 54. Accordingly, the Veteran’s claim for entitlement to service connection for prostate cancer due his military related exposure to hazardous substances is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate Counsel 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.