Citation Nr: 21077450 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-05 694 DATE: December 29, 2021 ORDER Entitlement to service connection for residuals of prostate cancer is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during service. 2. The Veteran's prostate cancer was not present in service, or manifest to a compensable degree within one year of service discharge and is not related to service. CONCLUSION OF LAW The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1968 to May 1969. In October 2019 he testified at a videoconference hearing before the Board of Veteran's Appeals (Board). A transcript of the hearing is of record. In January 2020, the Board of Veterans' Appeals (Board) denied the issue of entitlement to service connection for prostate cancer. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in April 2021 granting a Joint Motion for Remand (JMR) filed by the Veteran's representative and the VA Office of the General Counsel in March 2021. In August 2021 the Board remanded the matter for additional development. Service Connection The Veteran asserts that his prostate cancer was caused by exposure to herbicide agents while stationed in Thailand during the Vietnam War. 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA presumes exposure to herbicides for Veterans that have service on the landmass of the Republic of Vietnam or the inland waterways thereof or had service in specific units that were stationed at the Demilitarized Zone (DMZ) in the Republic of Korea from April 1, 1968 through August 31, 1971, and for servicemembers who regularly and repeatedly operated, maintained, or served aboard the C-123 aircraft known to have sprayed an herbicide agent during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii)-(v). The presumption also extends to Veterans who served on ships operating temporarily within the 12 nautical miles of territorial seas of the Republic of Vietnam. 38 U.S.C. § 1116A; Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). At his October 2019 Board hearing, the Veteran testified that he was exposed to herbicide agents while stationed at U-Tapao Royal Thai Air Force Base (U-Tapao). He testified that when he arrived at U-Tapao, the base was still under construction but that he was in close proximity to the base perimeter and witnessed the spraying of vegetation. He testified that his living quarters were near the runway and that he had to travel to the bomb dump that was near the perimeter. He testified that his clothes were washed in canal water that ran through the base. He submitted annotated maps of U-Tapao and described how his military duties brought him into contact with the base perimeter. The Veteran's service personnel records confirm that he served as communication center specialist at the U-Tapao Royal Thai Air Force Base from June 1968 to May 1969. However, the Board finds that his MOS is not one that would suggest visitation to the perimeter of the base, even on an irregular basis. The MOS itself suggests that the duties thereof would be based in a building, where the communications equipment would be maintained, and nothing about a communication specialty suggests that traveling to the perimeter, where the communication equipment would not be maintained, is involved in the position. This is supported by the Veteran's personnel evaluations, which note that the Veteran's duties as a communications center specialist included processing incoming/outgoing messages, preparing messages in perforated tape form for transmission, assisting the shift supervisor in diagnosing and resolving circuit outages, coordinating with customer agencies, originating/defining service messages pertaining to teletype traffic/circuitry, and operating cryptographic equipment. Moreover, the above duties do not suggest that his duties included contact with a bomb dump or otherwise involve traveling to the base perimeter. In addition, while the Veteran indicated that he had duties close to the flight line, his annotated map shows at least one structure between his office and the flight line, which was on the opposite side of the flight line next to the perimeter. His service records are silent for any indications that he worked on C-123 aircraft. The Veteran has also testified that his clothes were washed in the canal water that ran through the base. However, the Board finds this assertion is so inherently speculative as to not constitute credible evidence of exposure given that events which he claims occurred during his military service are not documented and cannot be confirmed through any other means. First, the Board does not find his account of his laundry being washed in canals to be credible, given that he is purporting to recall the particulars of the mundane event of no significance of how his laundry was washed, more than 40 years after service. The Board also finds it significant that this recollection of how his laundry was washed comes in the context of seeking monetary benefits. The Board does not find his recollection to be reliable, and therefore credible. Moreover, the Veteran has not proffered any actual evidence that the canal water contained runoff from any treatment of herbicide agents, or that his particular laundry was impregnated with herbicide agents from runoff. The Veteran claims no special expertise in the application of herbicide agents at his base, or in the science of stormwater runoff. At heart, his allegation is based on belief alone, and not expertise or evidence. Consequently, even were the Board to find his recollection credible, which we do not, the Board finds that the evidence still does not establish that he was exposed to an herbicide agent in service, including while serving in Thailand. In this case, the evidence does not suggest that the Veteran's duties involved working at the perimeter of his Thailand air base or that he was otherwise exposed to herbicide agents during his active service. Even though the Veteran is competent to relate his beliefs that he was exposed to herbicides in-service, this lay evidence is not credible, and is outweighed by the absence of documentation of such exposure in his personnel records and by his working an MOS that VA has not found to be associated with herbicide exposure. Thus, the presumption does not apply, and the claim must be denied on this basis. That said, service connection may still be established with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In the alternative the Veteran also argues his prostate cancer is due to his active service. However, having carefully reviewed the record, the Board finds that the criteria for service connection for prostate cancer are not met on a direct basis. Service treatment records do not show a diagnosis of prostate cancer during his service but do show the Veteran was treated for an episode of hematuria in March 1967. Laboratory findings showed hematuria, cauliflower growth in urethra, and ulceration of urinary bladder. A cystoscopy and urethroscopy showed an operative diagnosis of bladder ulcer, questionable diverticulum, plus polypoid growth on membranous urethra. An entry dated in April 1967 shows physical examination was entirely normal with no abnormalities. At that time the Veteran had no difficulty voiding or further hematuria and there was no history of gonococcal urethritis or urethral discharge. The discharge diagnosis was posterior urethritis, organism undetermined. An entry dated in January 1969 shows the Veteran was evaluated for urethral discharge for one day with no dysuria. A gram stain results showed mucous, but no pus or bacteria. There was no treatment or diagnosis given. At his separation physical in May 1969, it was noted that the Veteran had a bladder infection which was medically treated with normal recovery and no residuals. Clinical evaluation of the genitourinary system was within normal limits with negative urinalysis and non-reactive VDRL (Venereal Disease Research Laboratory) serology. There is also no evidence that prostate cancer was manifested to a compensable degree within one year of separation from his period of active service in 1969. 38 C.F.R. §§ 3.307, 3.309. The first evidence of prostate cancer is in March 2005, more than 30 years after the Veteran separated from service. These records do not suggest a date of onset of prostate cancer prior to 2005, or that any pertinent symptomatology originated during military service. In March 2014, the Veteran was afforded a VA examination. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran's prostate cancer was less likely than not due to service. It was noted that the Veteran was diagnosed with an acute episode of hematuria in March 1967 and had a growth on his urethra removed; however, the condition resolved as he did not have subsequent visits. The examiner also noted that the Veteran's separation physical was negative for any urinary complaints and his bladder infection had been medically treated with normal recovery and no residuals. The examiner stated that the Veteran was not diagnosed with prostate cancer until 2005 and medical literature did not otherwise support a direct cause or relationship between the Veteran's in-service bladder condition and his prostate cancer. In a July 2021 brief the Veteran through his representative argued that the March 2014 unfavorable VA opinion was inadequate as the examiner reported that medical literature did not support a direct cause or relationship between his bladder condition that occurred during his active service and his prostate cancer. The Veteran's representative submitted additional argument containing internet links to support his contentions regarding a relationship between prostate cancer and the Veteran's urethritis during service. This information, including an article from NIH dated in January 2017, suggests that prior urethritis is a risk factor for prostate cancer and that there are venereal diseases associated later with prostate cancer. See Written Brief Presentation, dated July 23, 2021. However, the sources do not otherwise purport to establish that urethritis and venereal diseases are the only or even predominant etiologic factors in prostate cancer. More importantly, the representative himself pointed out that "more research is now needed to confirm the link" thus indicating the studies were limited and/or inconclusive. Also, without consideration by a clinical professional of the specific nature and circumstances of the Veteran's prostate cancer or consideration of his particular medical history, the information is of little value and is insufficient to establish the medical nexus opinion required for causation. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Pursuant to the Board's 2020 remand order, a VA opinion was obtained an addendum opinion from the examiner who conducted the 2014 VA examination. In September 2021, that clinician reviewed the claims file, including service and post service treatment records as well as reviewed the most recent medical literature and on-line references dated through August 2021, and reiterated her previous conclusion that the Veteran's prostate cancer was unrelated to service. Citing research from the World Health Organization (WHO) GLOBOCAN database, the clinician stated that prostate cancer is the second most common cancer in men worldwide. The current lifetime risk of prostate cancer for men living in the United States is estimated to be approximately one in eight. Of the several known prostate cancer risk factors, the most important are age, ethnicity, genetics, and possibly dietary factors. Prostate cancer has one of the strongest relationships between age and any human malignancy and has a strong inherited component. Men with a family history of prostate cancer on either side of the family are at increased risk for prostate cancer. The available data from case-control studies, cohort studies, and meta-analyses suggest a modest increase (approximately 1.5- to 2-fold) in the risk of prostate cancer in men with prostatitis, but the data are generally of low quality and the relationship between prostatitis and prostate cancer remains unclear. So, despite a significant body of work relating inflammation to cancer, a cause-and-effect relationship has NOT been established between prostate cancer and prostatitis. Furthermore, PSA values can be elevated with prostatitis, leading to more prostate biopsies and a greater likelihood of making the diagnosis of cancer. Referring to service treatment records the clinician noted that the Veteran was treated for urethritis in 1967 and although subsequently treated for urethral discharge in 1969 no treatment was given, and no sexually transmitted disease was diagnosed. Rather the record shows that the Veteran has a strong family history of prostate cancer with two grandfathers and an uncle and was diagnosed with prostate cancer at the age of 60. Review of the records at the time of the prostate cancer diagnosis make note of the Veteran's "strong family history of prostate cancer" with no mention of any past urethritis or relationship of prostate cancer to past urethritis. Therefore, it is less likely than not that the Veteran's prostate cancer is related to service including the in-service hematuria, cauliflower growth in urethra and ulceration of urinary bladder. Instead, the Veteran's strong family history and age are more likely the most significant risk factors and etiologies for his prostate cancer. Based on the foregoing, there is no probative and competent medical evidence of record linking the Veteran's prostate cancer to his military service including herbicide exposure. While none of the VA opinions of record provide a positive opinion with regard to the claim, the September 2021 VA opinion is the most probative and persuasive medical evidence in this case, as it based upon a review of the claims file and is supported by sufficiently clear and well-reasoned medical rationale. The clinician considered the onset and course of the pertinent symptoms, the results of previous clinical evaluations, and performed a review of medical references related to the likelihood or not that the Veteran's prostate cancer developed as a result of the in-service episode of urethritis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The claims file contains no competent medical evidence refuting it. (Continued on the next page) To the extent the Veteran argues that a relationship exists between his prostate cancer and service, such an assertion treads into the realm of medical expertise. Specifically, he lacks the requisite medical expertise to provide a competent medical opinion as to the etiology of his prostate cancer particularly when, as in this case, it involves allegations that it was caused by exposure to an environmental hazard such as herbicides. This is a medical matter, requiring medical training and expertise, thus not susceptible to lay opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). This is particularly true where, as here, the predicate is herbicide agent exposure. In any event, the probative value of the Veteran's belief is outweighed by that of the medical examiner, who clearly does have the education, training, and experience to address etiology. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.