Citation Nr: 21070411 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-34 736 DATE: November 23, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDING OF FACT The evidence of record is against finding that the Veteran's prostate cancer occurred in, or is the result of, his period of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A Board hearing was conducted via videoconference with the RO in San Diego, California. A transcript of this hearing is contained within the electronic claims file. The Veteran claims that, while stationed at Kadena Air Base in Okinawa, Japan, he was exposed to Agent Orange, which caused his prostate cancer. June 29, 2017, VA Form 9; April 5, 2017, Notice of Disagreement (NOD); see generally Dec.17, 2019, Hearing Transcript (Tr.). In a May 2020 Decision, the Board remanded this claim so that the agency of original jurisdiction (AOJ) could conduct research to help substantiate the Veteran's allegations of exposure to Agent Orange or other chemical spills. If, and only if, exposure was verified, then the AOJ was to secure a medical opinion. From MayDecember 2020, the AOJ conducted the necessary research and uploaded its findings to the electronic claims file. Thus, the Board finds that the AOJ substantially has complied with the prior remand directives, permitting the Board to proceed with adjudication. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ), as determined by the Department of Defense (DoD), in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(i)(iv), 3.309(e). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Service treatment records (STRs) do not contain complaints of, treatment for, or diagnosis of prostate cancer. The Veteran's January 1965 separation examination did not reveal any abnormal findings. The Veteran's military personnel records (MPRs), specifically his DD-214, reflects that he served as part of the 267th Chemical Platoon at Kadena Air Base. Post-service January 2016 private medical records show that the Veteran was diagnosed with prostate cancer. In April 2017, the Veteran submitted a printout regarding the 267th Chemical Company. An additional article titled "Were US Marines Used as Guinea Pigs on Okinawa?" also was included. The latter details that the Department of Defense (DoD) conducted an operation known as Project 112 at Okinawa, whereby servicemembers were exposed to substances including "sarin and VX nerve gases between 1962 and 1974." "Between December 1962 and August 1965, the 267th platoon received three classified shipmentscodenamed YBA, YBB, and YBFbelieved to include sarin and mustard gas." In January 2020, the Veteran submitted a letter from his private treating physician, Dr. L.M., who opined that the Veteran's prostate cancer is related to his in-service exposure to Agent Orange. As part of the AOJ's required development, it associated in July 2020 with the Veterans claims file a January 2013 twenty-seven-page report conducted by A.L. Young Consulting, Inc., titled "Investigations into Allegations of Herbicide Orange on Okinawa, Japan" (hereafter referred to as "Investigations"). The study was prepared for the Office of the Deputy for the Under Secretary of Defense at DoD, and its purpose was explained in the introduction section: During the past few years, there have been an increasing number of US veterans alleging exposure to Herbicide Orange while serving at military installations in Okinawa during the Vietnam Era. Questions about allegations have also been raised by the Japanese Government and the residents of the Prefecture of Okinawa. The [DoD] has repeatedly stated to the Government of Japan and the [VA] that it has not found records validating these allegations. Nevertheless, the allegations have continued. Investigations at 2 (footnotes omitted). The report continues: However, after an extensive search of all known and available records, there were no documents found that validated the allegations that Herbicide Orange was involved in any of these events, nor were there records to validate that Herbicide Orange was shipped to or through, unloaded, used or buried on Okinawa. Id. (emphasis in original). In April 2021, both the Veteran and his wife J.B. submitted personal statements. The Veteran indicates that, in approximately November 1965, he was diagnosed with kidney problems, which later turned out to be a tumor. He concedes that treatment for this condition was so long ago that the doctor has since passed away and that his records likely are gone. He continues that around the mid-1980s, he developed a facial nerve tumor, which was excised via surgery, deafening his right ear. According to the Veteran, another tumor formed in 2003 in his throat (but it was not removed), and 2014 carried a diagnosis of a tumor in his left arm (this one was removed); his final diagnosis was his prostate cancer in 2016. The Veteran believes that this series of tumors and prostate cancer are caused by his service in Okinawa. J.B. reiterates the Veteran's timeline of events; however, she states that the 2003 tumor in the Veteran's throat was removed. Overall, J.B. stated that: I know I am not a doctor, but I have watched [the Veteran] have tumors since the first year he left the Army. To me it is clear that my husband has been subjected to something which led to these growths and his Prostate cancer, which have deformed and disfigured him and to me these growths are from his exposures in the Army. The Board acknowledges that the Veteran was diagnosed with prostate cancer in January 2016 and underwent treatment for that condition. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Turning to the second element, however, the Board finds that the evidence of record is insufficient. The Veteran alleges that he was exposed to Agent Orange, but the evidentiary record clearly weighs against that assertion. Investigations includes a thorough discussion ultimately supporting the DoD's position to both the government of Japan and the VA that Agent Orange was not used at or stored in Okinawa. The record also contains other departments' inability to verify any use of Agent Orange in Okinawa or other chemical spills (as the Veteran alleges). As an independent study commissioned to verify the various allegations throughout the years, the Board affords Investigations considerable probative value on appeal, and it has no reason to doubt its veracity. Thus, the Board finds that the second element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). While the Veteran and J.B. now have included a discussion regarding various other tumors he has endured since service, that information is irrelevant to this appeal. The Veteran has claimed service connection for prostate cancernot for a variety of tumors elsewhere. Dr. L.M.'s opinion both is inapplicable to the specific circumstances of this appeal and otherwise is of the type that never would be required. That opinion correctly notes that Vietnam veterans are presumed exposed to Agent Orange and that Agent Orange presumptively is related to prostate cancer. The Veteran, however, did not serve in Vietnam, so he is not presumed exposed to Agent Orange, see 38 U.S.C. § 1116(f), 38 C.F.R. § 3.307(a)(6), despite Dr. L.M.'s opinion stating as such. Furthermore, even if the Veteran were exposed, a medical opinion would not be necessary because the regulations obviate the need for one. See 38 C.F.R. § 3.309(e). Thus, Dr. L.M.'s opinion adds nothing to this appeal. Lastly, as J.B. herself concedes, she is "not a doctor," so she, therefore, is not competent to opine on complex medical opinions; the same is true for the Veteran despite both of their sincerely held beliefs regarding the outcome of this appeal. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for prostate cancer, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309(e). (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.