Citation Nr: 21072416 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-08 947 DATE: December 3, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDING OF FACT The Veteran's prostate cancer was not caused by any in service incident or event. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from September 1982 to January 2009. VA's duty to notify was satisfied by a letter sent in March 2014. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The evidence of record includes the Veteran's service records and more recent VA treatment records. After the Board's remands, additional private medical records and records from Winn Army Hospital were associated with the record. The Veteran has not identified any additional, unobtained medical evidence. Consequently, all relevant, identified, and available evidence has been obtained. In January 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran tor receive a VA examination. The Veteran was scheduled for an examination but did not attend. However, based on the previous concerns with the Veteran receiving notice of the scheduled VA examinations, in July 2021, the Board remanded the case to obtain a medical opinion. An addendum opinion was provided in August 2021. The Board finds the nexus opinion was adequate because it was based on a thorough, complete review of the claims file, including the Veteran's lay statements, and the medical articles he submitted. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The prior remands also directed the AOJ to conduct development regarding the Veteran's exposures to depleted uranium and other chemicals. His service personnel records were obtained. In the August 2021 Supplemental Statement of the Case (SSOC), the AOJ conceded the Veteran's "...exposure to environmental hazards and depleted uranium." Therefore no further development is required. VA has fulfilled its duty to assist, and there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2021); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2021). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserted that his prostate cancer was caused by his exposure in service to various chemicals. He reported exposure to carcinogenic materials such as depleted uranium from weapons as well as exposure to chemicals from oil fires and burn pits. Additionally, the Veteran submitted medical articles to support his assertion that his prostate cancer was linked to his in service chemical exposure. VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117. The Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e)(1). To grant service connection for a claimed disability, a Persian Gulf Veteran must exhibit objective indications of a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. The claimed disability must be characterized by symptomatology that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Prostate cancer is a diagnosed condition, and therefore is not an undiagnosed illness. 38 C.F.R. § 3.317. Additionally, it is not a multisymptom illness. Presumptive service connection is not warranted for prostate cancer. Direct service connection will be considered. In August 2021, the Veteran's claims file was provided to a VA physician to provide an opinion. The examiner noted that the Veteran was diagnosed with prostate cancer in January 2012, after his PSA was rising. He had a robot assisted laparoscopic prostatectomy (RALP) later that year and his cancer was considered to be in remission after his treatment was completed. The VA examiner considered the Veteran's lay statements concerning his in service chemical exposure: that he handled, transported, loaded, and fired ammunition that contained depleted uranium, and that he was exposed to oil fires and burn pits. The examiner also considered the articles submitted by the Veteran. The examiner concluded that, "[s]tudies do not conclusively show increased incidence of prostate cancer with uranium handling." They noted that exposure to uranium "may increase cancer mortality risk." Furthermore, the examiner noted that exposure to oil fires and burn pits has not been directly linked to causing prostate cancer. Therefore, the examiner determined it was less likely than not that his prostate cancer was caused by his active duty service. The examiner's opinion is probative evidence against the Veteran's claim. Although one of the studies noted by the examiner stated uranium exposure "may" increase cancer risk, speculative language cannot be the basis of a grant of service connection, because it does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). The Veteran asserts that his conceded in-service hazardous exposures caused his prostate cancer. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. The evidence of record does not show that the Veteran has the requisite knowledge to provide an etiological opinion for his prostate cancer because it is a complicated question involving medical inquiry into biological processes, carcinogenesis, and the impact of toxic substances on the human body. As a result, his opinion is not competent evidence. The Veteran submitted articles in support of his claim. Some of them described types of ammunition that contained depleted uranium. One article titled "Military medical aspects of depleted uranium munitions," addressed the toxicity of uranium but did not address a link between uranium and subsequent development of prostate cancer. It does not support the claim. An article titled "U. S. Soldiers Deployed to Iraq and Afghanistan Have Higher Prostate Cancer Risk" states that exposure to depleted uranium damages DNA and can cause several types of cancer, including prostate cancer. A fact sheet titled "Congressionally-Directed Medical Research Program," from April 2012 states that active duty men are at an increased risk of developing prostate cancer, including soldiers exposed to uranium in Iraq. Another article titled "Cancer Incidence in the U.S. Military Population: Comparison with Rates from the SEER Program" states that results have been inconsistent, but exposure to depleted uranium "has been suggested to increase the risk of prostate cancer." The internet articles are less probative than the medical opinion. These articles contain generic information noting that depleted uranium could increase risk of prostate cancer, but they do not establish a nexus between exposure and this specific Veteran's prostate cancer. The articles were not accompanied by a medical opinion. Sacks v. West, 11 Vet. App. 314, 317 (1998). Additionally, they do not apply medical principles to the facts of his individual veteran's case. Standing alone, they articles do not provide probative evidence in support of the claim. The preponderance of the probative evidence of record weighs against the claim of service connection for prostate cancer. The benefit of the doubt doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.