Citation Nr: 20056728 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 17-11 506 DATE: August 27, 2020 ORDER Service connection for prostate cancer, including as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of prostate cancer. 2. The Veteran does not have “service in the Republic of Vietnam (Vietnam),” was not presumptively exposed to herbicides during service, and was not actually exposed to herbicides during service. 3. Symptoms of prostate cancer were not chronic in service, not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. 4. The prostate cancer was not incurred in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from March 1966 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for prostate. In May 2019, the Veteran testified at a Board videoconference hearing from the RO in Nashville, Tennessee, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. In July 2019, the Board remanded the issue on appeal for additional development to obtain a VA medical opinion. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the July 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection for Prostate Cancer The Veteran contends that service connection for prostate cancer is due to exposure to toxic chemicals, including solvents containing TCE, during service. The Veteran testified that he worked as a sonar technician during active service and his duties included using toxic chemicals, such as solvents containing TCE, to clean electrical parts. Alternatively, the Veteran contends that prostate cancer is related to herbicide agent exposure during service. The Veteran denies having served in Vietnam; however, he contends he served on the USS Norris in 1967 after it returned from a tour in Vietnam, so may have been exposed to residual herbicide agent from the ship’s prior deployment. See May 2019 Board hearing transcript. Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Veteran is currently diagnosed with prostate cancer, which is considered a “malignant tumor” recognized as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for prostate cancer. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Prostate cancer is listed as a disease for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e). Initially, the Board finds that the Veteran has a diagnosis of prostate cancer as reflected in the June 2015 private treatment record. Upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not have “service in the Republic of Vietnam,” so may not be presumed to have been exposed to herbicides during service, and did not otherwise have actual exposure to herbicides during service, to warrant presumptive service connection for prostate cancer. While the Veteran contends that he served on the USS Norris, which last conducted operations in Vietnam in December 1966, several months before the Veteran boarded USS Norris in May 1967 (see VA Memo), the Veteran does not contend, and the evidence does not show, that the Veteran had service in the Republic of Vietnam during service. Accordingly, the Board finds that the Veteran did not have service in Vietnam and did not otherwise have actual exposure to herbicides during service; thus, the herbicide agent presumptions are inapplicable. After reviewing all of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that symptoms of prostate cancer were chronic in service, were continuous since service, or manifested to a compensable degree within one year of service. The service treatment records are silent for complaints, symptoms, findings, or diagnosis of prostate cancer. The October 1969 service separation examination report shows no significant history or findings at service discharge. The weight of the evidence shows that symptoms of a prostate cancer have not been continuous since service separation. Post-service treatment records are silent for symptoms or treatment of prostate cancer for many years after service separations. The first mention of symptoms of prostate cancer is in 2003, 34 years after service separation, when the condition was diagnosed via biopsy. While the post-service records reflect a diagnosis of prostate cancer, status post biopsy, neither the lay nor medical evidence of record indicates an onset of symptoms of prostate cancer during service, or that symptoms of prostate cancer have been continuous service separation. See June 2015 Private treatment record, March 2020 VA treatment record. The evidence also shows that symptoms of prostate cancer did not manifest, including to a compensable degree, within one year of active service, as post-service treatment records do not reflect symptoms or signs of prostate cancer until 2003, 34 years after service separation. As the weight of the evidence is against finding chronic symptoms of prostate cancer in service or continuous symptoms since service separation, the chronic disease presumptions of 38 C.F.R. § 3.303(b) are not for application. As for the theory of direct service connection, the weight of the lay and medical evidence demonstrates that the current prostate cancer, which began many years after service, is not otherwise related to active service. As discussed above, neither the Veteran nor the medical records (service and post-service medical records) indicate that the current prostate cancer began during service. The Veteran contends that the current prostate cancer, which began many years after service separation, is related to the use of solvents containing TCE, which he used to clean electrical parts as part of his military duties during service. The Veteran has not provided a medical opinion indicating a link between exposure to solvents that contain TCE during service and the post-service prostate cancer. In support of this theory, the Veteran submitted a website article from the CDC that reflects that one study has indicated positive findings of health effects between exposure to TCE and prostate cancer. See May 2019 Correspondence. This general article is minimally probative in this matter as it is not based on the specifics facts of this case that include a 34 year gap or longer between claimed exposures and the development of prostate cancer. The article only notes that positive findings were indicated in one study without discussing the contents of the study, which actually suggests that the relationship between TCE and prostate cancer has not been widely studied and agreed upon in the medical community. Moreover, the article does not discuss the probability of a link between TCE exposure and the development of prostate cancer 34 or more years after exposure, as in this case, to include the frequency, duration, or dose quantity of exposure necessary to indicate a probable link between exposure to TCE and prostate cancer. (Continued on the next page)   A VA medical opinion was provided in November 2019. The VA examiner opined that it is less likely than not that the Veteran’s prostate cancer was incurred in, caused by, or is otherwise etiologically related to active service, to include exposure to toxic chemicals, including solvents containing TCE, during active service. The VA examiner explained that it is mere speculation to state the degree of any exposure to any chemicals including TCE in the development of prostate cancer, as there is no industrial hygiene monitoring data to support any causation. The VA examiner noted that, per review of medical literature, prostate cancer has one of the strongest relationships between age and human malignancy, as clinically diagnosed prostate cancer rarely occurs before the age of 40, but the incidence rises rapidly thereafter, peaking between the ages 65 and 74. Further, the widespread prevalence of occult prostate cancer in older men and the dramatic increase with age are illustrated by a review of autopsy studies conducted in multiple countries. The VA examiner reasoned that the Veteran’s prostate cancer is most likely due to the normal aging process, as there is no medical evidence that the prostate cancer, which was diagnosed many years after leaving service, developed in or was otherwise due to service. See November 2019 VA examination report. The Board finds the VA medical opinion to be probative in this matter, as it is supported by a rationale and based on a review of the lay and medical evidence, and review of supplemental medical literature. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the prostate cancer and active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for prostate cancer on a direct, presumptive, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.