Citation Nr: 20046960 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 16-38 734 DATE: July 14, 2020 ORDER Entitlement to service connection for prostate cancer, claimed as due to in-service exposure to an herbicide agent, JP-4 jet fuel, and/or benzene, is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam or the Korean Demilitarized Zone and is not shown to have otherwise been exposed to an herbicide agent during his active duty. 2. The most probative evidence reflects that prostate cancer was not incurred during active duty, to include the Veteran’s presumed in-service exposure to JP-4 jet fuel, and/or benzene. CONCLUSION OF LAW The criteria to establish service connection for prostate cancer, to include as due to in-service exposure to an herbicide agent, JP-4 jet fuel, and/or benzene, have not been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1976 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ’s denial of this claim, and the present appeal ensued. In October 2018, the Veteran participated in a Board Travel Board hearing conducted by a Veterans Law Judge (VLJ) at the AOJ. A transcript of this hearing has been associated with the file. The issue currently on appeal was previously before the Board in May 2019 and December 2019, when it was remanded for further procedural and evidentiary development. The Board’s prior remand directives have been substantially completed. The Veteran’s appeal has been returned to the Board for further appellate consideration. Additional matter In the May 2019 and December 2019 remands, the Board noted that, while the Veteran that expressed timely disagreement with the AOJ’s March 2019 denial of the Veteran’s claims to establish service connection for tinnitus, bilateral hearing loss, and residuals of a left eye injury, VA’s electronic Veterans Appeals Control and Locator System (VACOLS) did not reflect an active appeal regarding these issues. Although the Board made it clear on both occasions that the Court’s holding in Manlincon v. West, 12 Vet. App. 238 (1999), was not being invoked, the Board put the AOJ on notice that these issues were in appellate status, and the Veteran was owed a Statement of the Case (SOC) readjudicating these issues. The file contains an October 2019 internal AOJ memorandum that does not appear to have been sent to, or received by, any party, and there is no indication that the AOJ has notified any RO or other adjudicative body of this matter. Specifically, VACOLS remains devoid of an active appeal regarding these issues, and there is no indication that development has been or will be undertaken in furtherance of readjudicating these issues in an SOC. Again, the Board will not invoke the Court’s holding in Manlincon; however, the AOJ is notified that these issues are in appellate status and the Veteran is owed an SOC which readjudicates the same. 1. Entitlement to service connection for prostate cancer, claimed as due to in-service exposure to an herbicide agent, JP-4 jet fuel, and/or benzene Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be granted for certain chronic disabilities, including malignant tumors such as prostate cancer, if diagnosed as such in service or manifested to a compensable degree within one year after a veteran's separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Further, VA regulations provide that certain diseases associated with exposure to herbicide agents, including prostate cancer, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include individuals who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (such as "Agent Orange") during the Vietnam era. Specifically, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircrafts and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101 (24) (B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309 e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval or air service. 38 C.F.R. § 3.307 (a)(6)(v). VA has determined a list of affected units, Air Force Specialty Codes and dates of service for affected reservists and active service members who had regular and repeated exposure to contaminated C-123 aircraft which were used to spray Agent Orange. Relevant to the instant appeal, the affected active duty units and dates of service for affected crew members were as follows: Hurlburt Auxiliary Field, Eglin Air Force Base, Florida (1970-1973), Langley Air Force Base, Virginia (1962-1963, 1970-1973), Luke Air Force Base, Arizona (1970-1973), Tainan Air Field, Taiwan (1969-1970), Howard Air Force Base, Panama (1970-1973), Osan Air Base, South Korea (1970-1973), and Clark Air Force Base, Philippines (1969-1970). See list of military units and Air Force Specialty codes, available at https://www.vets.gov/disability-benefits/conditions/exposure-to-hazardous-materials/agent-orange/c-123/ (last visited November 13, 2018). The list of specialty codes for military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members include the following for enlisted personnel: flight engineer/aircraft loadmaster (1130-1149), aircrew life support specialist (1220-1229), and aircraft maintenance specialist/flight technicians (4314-4359). Id. In addition, application of the presumptive provisions of §1116 concerning in-service exposure to an herbicide agent has been extended to veterans who served on the Korean Demilitarized Zone and on the perimeters of certain Royal Thai Air Force bases when herbicide agents were used there. The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be considered competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis The Veteran was diagnosed with prostate cancer after biopsy testing in 2012, and he has since claimed that this disability is related to his active duty, to include confirmed reported in-service exposures to various toxins and carcinogens. As the medical evidence unambiguously confirms a diagnosis of prostate cancer during the appeal period, element (1) to establish service connection (directly and presumptively) has been demonstrated. Concerning element (2), evidence of an in-service disease, injury, or incident, the record does not reflect, and the Veteran does not contend, that prostate cancer was diagnosed during his active duty or that he experienced symptoms congruent with this disability during the same. Instead, the Veteran asserts that this disability is the result of his in-service exposures to various toxins and carcinogens, to include an herbicide agent such as Agent Orange, JP-4 jet fuel, and/or benzene. The Board will address the Veteran’s contentions in turn. As noted above, prostate cancer is among the list of diseases presumed by VA to be associated with in-service exposure to an herbicide agent. As such, if the Veteran’s assertions of in-service exposure to an herbicide agent are confirmed, a causal nexus is presumed. As noted above, VA has conceded that certain armed forces personnel were exposed to an herbicide agent while stationed in the Republic of Vietnam, on the Korean Demilitarized Zone, and at certain Air Force bases while maintaining C-123 jets; however, the record does not reflect, and the Veteran does not contend, that these scenarios apply to him. At the October 2018 Board hearing, the Veteran asserted his belief that he was exposed to an herbicide agent while stationed at Moody Air Force base. Specifically, he testified that the airfield was being enlarged while he was stationed there, and that part of this process included defoliating the area behind his shop of assignment by spraying a liquid that he and his fellow airman believed to be Agent Orange. Although the Board acknowledges the Veteran’s assertion, the Veteran has provided no evidence in support of such, to include that he has the scientific training and education to credibly state that the chemical used in this process was an herbicide agent. Further, VA has not acknowledged that herbicide agents were utilized at Moody Air Force base at any time. While the Veteran is competent to assert that a liquid was sprayed at Moody Air Force base while he was stationed there, his assertions that the liquid sprayed was an herbicide agent are not competent. Accordingly, the most probative evidence of record reflects that the Veteran was not exposed to an herbicide agent during his active duty, and thus, service connection for prostate cancer is not warranted on a presumptive basis. Notwithstanding the above, the Board notes that the Veteran’s reports of in-service exposure to JP-4 jet fuel and benzene are congruent with the duties and assignments of his Military Occupational Specialty (MOS) as a Fuel Specialist. As such, element (2) to establish direct service connection has been demonstrated, and the crux of the Veteran’s appeal is whether there is a causal connection between such exposures and his prostate cancer. Concerning critical nexus element, evidence of a medical nexus between the Veteran’s prostate cancer and his in-service exposures to JP-4 jet fuel and benzene, there are two medical opinions of record, and the Board will address them in turn. After a review of the file, the September 2019 VA examiner opined that the Veteran’s prostate cancer was less likely as not the result of his active duty, to include his in-service exposures to JP-4 jet fuel, solvents, and/or benzene. As rationale for this opinion, the September 2019 VA examiner stated, “A wide sweep of the medical literature for such a potential association is not met with success i.e. Up-to-Date, Access Medicine, Harrison's Textbook of Internal Medicine and Medline. Any such references to such an association are absent i.e. as to rising to a 50 [percent] or greater nexus likelihood.” As noted by the Board in the December 2019 remand, the September 2019 VA examiner’s opinion is competent, credible, and highly probative concerning whether the Veteran’s prostate cancer is the result of his in-service exposures. However, the Board found that a remand was necessary to obtain an additional medical opinion which more specifically addresses whether benzene, which the Veteran was likely exposed to during his active duty and is a known carcinogen that has been determined to have been used in the production of Agent Orange, is causally related to his metastatic prostate cancer. Consequent to the Board’s December 2019 remand, the Veteran favorable decision from the Social Security Administration (SSA) and the records upon which it was based were associated with the Veteran’s file. Thereafter, the Veteran’s electronic file was transferred back to the September 2019 VA examiner. After another review of the Veteran’s file, to include his SSA decision, SSA records, and the Board’s December 2019 remand, the VA clinician opined in a March 2020 addendum that the Veteran’s prostate cancer was less likely as not caused by his in-service exposures to JP-4 jet fuel and/or benzene. As rationale for this unfavorable opinion, the VA clinician stated “There is no consensus of evidence in the peer reviewed medical literature rising to a 50 [percent or] greater nexus likelihood linking jet fuel/benzene to the development of prostate cancer. Studies link benzene exposure to leukemias, multiple myeloma and non Hodgkins lymphoma[,] but not prostate cancer.” The Board finds that the September 2019 and March 2020 opinions are highly probative concerning the etiology of the Veteran’s prostate cancer because they were rendered after a thorough review of the record, and are consistent with and cite to specific evidence in the record. Bloom v. West, 13 Vet. App. 185, 187 (1999). The only nexus evidence of record which is favorable to the appeal comes from the Veteran. The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009). However, the Veteran’s disability is not the type that can be causally related to military service or in-service toxin exposure without medical expertise. Davidson, 581 F.3d 1313; see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concluding that certain disabilities are not conditions capable of lay diagnosis). Thus, the Board concludes that the probative weight of the Veteran’s statements concerning the etiology of his prostate cancer are outweighed by the September 2019 and March 2020 VA opinions, as the former is not considered by the Board to be as competent as the latter. For chronic disabilities listed under 38 C.F.R. § 3.309(a), such as prostate cancer an alternative method of establishing the second and third element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, there is no evidence showing a diagnosis of prostate cancer or symptoms meeting the criteria for a 10 percent evaluation within a year of separation. Further, the most probative and competent evidence does not show frequent and persistent symptoms of the Veteran’s prostate cancer during and since service. As noted by the September 2015 VA examiner (who did not address the matter of a medical nexus) and the VA clinician who provided the September 2019 and March 2020 VA opinions, there is an extensive time gap between the Veteran’s June 1978 separation from service and his initial diagnoses of prostate cancer in 2012. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Thus, entitlement to service connection for this disability based on frequent and persistent symptoms must be denied. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Accordingly, based on the unfavorable nexus evidence, the probative weight of the evidence against a finding of frequent and persistent symptomatology, and the lack of evidence of a chronic disease within the initial post-service year, the Board unfortunately must find that the criteria for service connection for prostate cancer are not met, as the preponderance of the evidence is against the appeal. There is no doubt to be resolved, and service connection is not warranted. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.