Citation Nr: 21000868 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-03 316 DATE: January 6, 2021 ORDER Entitlement to service connection for a lung disorder is denied. Entitlement to service connection for a kidney disorder is denied. Entitlement to service connection for a prostate disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current lung disorder which had its initial onset during active duty service or is otherwise related to any in-service disease, injury, or event. 2. The preponderance of the evidence is against a finding that a current kidney disorder had its initial onset during active duty service or is otherwise related to any in-service disease, injury, or event. 3. The preponderance of the evidence is against a finding that a current prostate disorder had its initial onset during active duty service or is otherwise related to any in-service disease, injury, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a kidney disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a prostate disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1948 to July 1969. This case initially came to the Board from a May 2012 decision of the Agency of Original Jurisdiction (AOJ). In April 2018, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of that hearing is of record. The Board remanded these issues for further development in June 2018, March 2020, and most recently in August 2020. In October 2020, the Board received a letter from the Veteran that might arguably plausibly be read as a request for an extension of time to submit new evidence. He wrote that, “I will need more [time] to try to make sense of things.” And the letter concludes with a postscript indicating that “I am still finding evidence.” But the letter does not explain how much more time he believes he needs to find the evidence that he seeks. Nor does it explain what evidence he is seeking or how that evidence will help establish the claims in this appeal. The Board notes that this appeal has pending for many years and the Veteran has had ample time to submit additional evidence. Further, the appeal has been advanced on the Board docket. The Board finds that there is sufficient evidence to decide the claims. Under these circumstances, the Board denies the request for additional time. If the Veteran later discovers evidence that he believes is relevant to this claim, he is welcome to submit new and relevant evidence to the AOJ. See 38 C.F.R. §§ 3.156(d), 3.2501. Service Connection Establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection, “basically . . . means that . . . a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces . . . This may be accomplished by affirmatively showing inception or aggravation during service . . .” 38 C.F.R. § 3.303(a). Service connection is warranted for a disease first diagnosed after the claimant’s discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background According to the records of his medical treatment in service, the Veteran was diagnosed with pneumonia in December 1956. In August 1957, he was diagnosed with bronchopneumonia at the Hospital at Fairchild Air Force Base in Washington. He continued on active duty service for more than ten more years, but this appears to be the most recent record of in-service treatment for any respiratory illness. He received a periodic medical examination in November 1964 and, according to the examiner’s report, his lungs and chest were normal at that time. In December 1968, shortly before his retirement from the Air Force, the Veteran received another medical examination. The examination report indicates that his lungs and chest were normal, with normal auscultation and percussion. The Veteran completed a report of medical history form at the time of his December 1968 retirement examination. On this form, the Veteran indicated that he had never previously experienced asthma, shortness of breath, or chronic cough. None of the available service treatment records mention the Veteran’s prostate or kidneys. The notice of disagreement submitted by the Veteran in November 2012 includes a written statement, in which he claimed that, “the below listed conditions [which include ‘lung condition’, ‘prostate removal’ and ‘kidney loss’] all manifested during my 21 years active military service to include combat service in Vietnam.” With respect to his claimed disabilities of the kidneys and prostate, he suggested that the relevant illnesses were related to his exposure to the herbicide Agent Orange. He suggested that his lung disorder was “secondary to asbestos exposure.” The Veteran’s substantive appeal (VA Form 9) alleged that his “lung problem” was also related to asbestos exposure. In his hearing testimony, the Veteran attributed his claimed disabilities of the lung, prostate, and kidney to his exposure to asbestos and various chemicals in service. According to the Veteran, one of his duties was to lower small arms into a vat of carcinogenic gas. He further testified that he was assigned to dispose of high explosive shells when the TNT inside the shells would break down. And he “re-barreled” old weapons using “carbon tetrachloride, which is another carcinogenic.” In his testimony, he also identified two other chemicals – carbon tetrachloride and trichloroethylene. The Veteran also described working near nuclear weapons during his service in Alaska and testified that he carried a dosimeter, which he remembered as reflecting a high level of radiation. Finally, he described using a defoliant, which he called “24D” to clear vegetation in Alaska. At the hearing, he said this chemical was “one of the main ingredients in Agent Orange.” But in his notice of disagreement, he wrote that he was “not really sure” about the identity of this chemical. In June 2018, the Board remanded these claims with instructions to arrange examinations of the Veteran’s lungs, prostate, and kidneys and to obtain opinions from the respective examiners concerning the probability of a relationship between the claimed disabilities and active duty service, including potential relationships to the chemical exposures described at the hearing. In its instructions, the Board ordered that each of the requested opinions should be supported by a rationale explaining the medical reasons for the examiner’s conclusion. The Board required that, in providing this explanation, the examiner should fully address the Veteran's lay statements attributing each claimed disability to in-service chemical exposures. The respiratory conditions examination report, dated September 2019, indicates that the Veteran was not currently diagnosed with any respiratory disorder. The examiner supported an unfavorable opinion concerning a potential relationship to service by explaining that there was no current respiratory disorder. The same examiner provided unfavorable opinions concerning the kidney and prostate claims. These opinions acknowledged the presence of status post right nephrectomy due to benign renal cyst and status post prostatectomy due to benign prostatic hyperplasia (BHP). According to the examiner, neither condition was related to service. To support both conclusions, the examiner relied on the absence of treatment of the prostate or kidneys conditions in the service treatment records. Neither opinion, however, specifically addressed the Veteran’s suggestion that in-service exposure to chemicals caused these disabilities. For reasons that are unclear, the AOJ recognized the incomplete compliance with the June 2018 remand orders only with respect to the kidney disorder opinion. At the AOJ’s request, the examiner provided the requested addendum report in October 2019. According to the examiner, a review of the relevant medical literature did not suggest a causal relationship between renal cysts and the chemical exposures mentioned by the Veteran including asbestos, radiation, carbon tetrachloride, trichloroethylene and herbicides. In March 2020, the Board remanded the lung and prostate claims to remedy the failure of the September 2019 opinions to address the Veteran’s suggestions about the significance of his in-service chemical exposure. Although the kidney opinion, when supplemented by the October 2019 addendum, did not suffer from the same problem, the Board also remanded the kidney claim, in part to give the Veteran the opportunity to submit a new opinion from his treating urologist. Together with records of an appointment with the Veteran in February 2017, the urologist added a handwritten note indicating that, “It is my medical opinion that it is possible that his exposure to chemicals in the past may have caused or contributed to the findings & problems with his kidneys.” Although this language failed to meet the relevant legal standard, see Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to “may or may not” is an insufficient basis for awarding service connection), the Board explained that it would be reasonable to give the Veteran the opportunity to submit a new opinion applying the correct standard before deciding the kidney claim. The Board also requested a new VA opinion to address the urologist’s note and any additional post-remand evidence submitted by the Veteran. In March 2020, the AOJ mailed an appropriate letter to the Veteran explaining the problem with the urologist’s note and inviting him to submit new evidence. Unfortunately, the next series of VA medical opinions for the prostate and kidney claims, dated April 2020, did not comply with the request to address the Veteran’s suggestions about the potential effect of in-service chemical exposures. The lung opinion, part of the same document, concluded that the necessary causal relationship was unlikely because the Veteran did not currently have a diagnosed lung disorder. But the “current disability” requirement of the claim is satisfied if the claimed disability is present when the claim is filed or at any time while the claim is pending, even if the disability resolves before the Board can issue a final decision. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Because the appeal period relevant to the Veteran’s respiratory claim extends from July 2010 to the present and there is evidence of pneumonia during the past five years, the April 2020 lungs opinion was inadequate. To correct these weaknesses, the Board issued its most recent remand in August 2020. The AOJ obtained the most set of medical opinions from a physician in August 2020. In the examiner’s opinion, it was less likely than not that any of the three claimed disabilities at issue in this appeal are related to service. With respect to the claimed lung disorder, the examiner described the in-service records of treatment for pneumonia in the late 1950s and the subsequent 1964 periodic medical examination and1968 separation examination reports indicating normal lungs and normal chest x-ray images. The examiner then discussed the Veteran’s more recent treatment for bronchopneumonia, upper respiratory infection, bronchitis, and allergic rhinitis in 2017. In the physician’s opinion, the outbreak of pneumonia in the 1950s resolved before the Veteran’s discharge from active duty. The respiratory disorders during the relevant appeal period, the examiner explained, were probably caused by post-service exposure to virus or bacteria in the air. As requested by the Board’s remand orders, the examiner then considered the Veteran’s suggestions about the potential effects of in-service exposure to asbestos, radiation, carbon tetrachloride, trichloroethylene, and herbicides. According to the examiner, the Veteran had not been diagnosed with any asbestos-related lung disease, such as asbestosis, pleural effusion, lung cancer, or pleural plaques. The report further indicates that the examiner consulted the relevant medical literature, which did not support the theory that “chemical or radiation exposures cause episodes of pneumonia or bronchitis in [sic] decades later . . .” According to the examiner, the episodes of pneumonia and bronchitis documented within the relevant appeal period were “related to his current exposure to virus or bacteria or other germs in the air he breathed in.” According to the examiner, the causes of the Veteran’s benign prostatic hypertrophy were not entirely clear, but potential causes included changes in the balance of sex hormones which tend to occur with age. Other risk factors included family history, diabetes, heart disease, and obesity. When asked to consider the Veteran’s suggestion that his post-service prostate disability was related to his claimed in-service exposure to chemicals, the examiner responded, “According to medical literature, every chemical in the list is not relevant to the cause or risk factor for the Benign prostatic hypertrophy.” The examiner submitted a similar analysis of the Veteran’s post-service kidney cyst. Although the cause of kidney cysts is unclear, “[o]ne theory suggests that kidney cysts develop when the surface layer of the kidney weakens and forms a pouch (diverticulum). The pouch then fills with fluid, detaches and develops into a cyst.” The examiner identified advanced age and male sex as risk factors tending to increase the risk of kidney cyst formation. According to the examiner, the evidence did not indicate a relationship between the Veteran’s kidney cysts and his active duty service. Addressing the suggestions of a relationship between kidney cysts and chemical exposure, the examiner wrote, “According to medical literature, every chemical in the list is not relevant to the cause or risk factor for the benign kidney cyst.” The report acknowledged but disagreed with the contrary suggestion of the Veteran’s treating urologist because the language of the urologist’s note was uncertain – i.e., “may have caused” – and because the urologist did not provide a rationale explaining that conclusion. Analysis Before proceeding to the merits of this appeal, the Board finds that the August 2020 medical opinions, when considered together with the other evidence, are adequate and substantially comply with the Board’s prior remand orders. With respect to the Veteran’s lung claim, the August 2020 opinion complied with the Board’s orders to consider whether respiratory illness which has been treated during the relevant appeal period – such as the Veteran’s 2017 pneumonia diagnosis – could potentially be related to his in-service pneumonia symptoms or to his exposure to certain chemicals. The examiner complied with this request by explaining that Veteran’s in-service pneumonia diagnosis most likely resolved well before his discharge from active duty and that his 2017 diagnosis, as well as the other respiratory symptoms noted during the appeal period, were probably related to the Veteran’s post-service exposure to bacteria or viruses in the air. When considering the potential effects of in-service exposure to chemicals, the August 2020 examiner concluded that, after consulting the relevant medical literature, it was unlikely that there was any causal link between his claimed disabilities and the chemical substances identified by the Veteran. Although the examiner did not identify the specific medical literature used to support these conclusions, there is no requirement that a medical examiner cite specific medical literature to support an opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (examiner’s failure to “explicitly cite any [medical] studies is not evidence that she was unaware of such studies, and it is not a basis for finding the examination report inadequate”). Turning to the merits of the Veteran’s claims, the Board will first address the statement in the Veteran’s notice of disagreement, in which he claimed that all three claimed disabilities, “all manifested during my 21 years active military service to include combat service in Vietnam.” As the Board first noted in its March 2020 decision and remand, the preponderance of the evidence weighs against a finding that the Veteran visited Vietnam during his active duty service. The available personnel records confirm the Veteran’s deployment to various Air Force facilities in Alaska at several points during his career, including the period between October 1951 and October 1954. But the records are inconsistent with the Veteran's claim to have served in combat in Vietnam. Lists of the Veteran's assignments suggest that he was in Guam from January to May of 1956. With this exception, all of his assignments were either in Alaska or the continental United States. In his initial application for benefits, dated July 2010, the Veteran indicated that he served in Vietnam in the years 1966 and 1967. But according to his personnel records, he was at Galena Air Station in Alaska from August 1965 to June 1966. From June 1966 to January 1968, he was at Elmendorf Air Force Base in Alaska. The personnel records include an evaluation completed by the Veteran’s superiors describing the performance of his duties between May 1966 and May 1967. According to the evaluation, “During this reporting period, [the Veteran] has completed two courses in psychology at the University of Alaska night school.” If the Veteran had sustained the claimed disabilities during combat in Vietnam between 1966 and 1967, it is difficult to understand why his performance evaluation for that time interval would describe duties in Alaska instead. Consistent with the Board’s finding that, contrary to his written statements, the Veteran did not participate in combat in Vietnam, the “combat presumption” of 38 U.S.C. § 1154(b) does not apply to this case. As for the remaining issue of whether current disabilities of the prostate and kidney and the respiratory disorders he experienced during the relevant appeal period are related to his exposures to certain chemicals during his active duty service, the Board finds that the most persuasive evidence is the August 2020 medical opinion. The author of that opinion is a physician who reviewed the evidence and consulted the relevant medical literature. As for all three claims, the opinion provided a reasonable statement of the medical reasons for the examiner’s conclusions. In addition to explaining that the relevant medical literature did not support the theory that a causal relationship existed between the claimed disabilities and the various chemicals identified by the Veteran, the opinion also identified alternative more likely causes for the relevant disabilities. For the pneumonia and bronchitis which affected the Veteran in 2017, the examiner explained that these were most likely the result of post-service exposure to bacteria or viruses. For benign prostatic hypertrophy, the examiner identified changes in sex hormones that occur with age as a more likely alternative cause. For kidney cysts, advanced age was also a likely contributing factor. For these reasons, the conclusions of the physician who prepared the August 2020 medical opinion deserves significant probative weight with respect to all three claims. Only with respect to the kidney claim is there any other competent evidence. As noted, the opinion of the Veteran’s treating urologist was that “it is possible” that in-service chemical exposures contributed or caused his post-service kidney cysts. But the August 2020 medical opinion correctly indicates that the urologist provided no explanation for this conclusion and, as noted, the urologist’s note did not phrase the opinion with the appropriate degree of certainty. See Winsett, 11 Vet. App. at 424. In March 2020, the AOJ sent a letter to the Veteran explaining this problem with the opinion and inviting him to submit more evidence. But in spite of this warning, he has submitted no other medical opinion evidence with respect to any of the claims at issue in this appeal. Considering the Veteran’s own statements, it is clear that the Veteran believes that his exposure to various chemicals in service caused his current disabilities. He is competent to provide information about any symptoms he has personally experienced. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). But nothing in the record indicates that he has the qualifications or experience necessary to provide an expert opinion on a matter of medical complexity, such as the potential effects of certain chemicals on his kidneys, prostate, and lungs decades after his discharge from active duty. See Id. at 1377, n. 4. Thus, consistent with the August 2020 medical opinion, the Board finds that it is less likely than not that the Veteran’s post-service disabilities of the lungs, kidneys, and prostate had their initial onset during service or are otherwise related to any in-service disease, injury, or event, including his claimed exposure to chemicals, asbestos, radiation, and herbicides. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of his claim for service connection. 38 U.S.C. § § § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Although it is clear that the Veteran satisfies the current disability requirement of his prostate and kidney claims and, pursuant to McClain, his lungs claim, the preponderance of the evidence weighs against a finding that any of these claimed disabilities is related to any disease, injury or event in service. Thus, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § § § 5107(b), and the claims for service connection must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.