Citation Nr: 21007243 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-35 484 DATE: February 9, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran was not exposed to an herbicide agent, including Agent Orange, during his service. 2. The Veteran's prostate cancer did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service, including his inservice vasectomy and inservice exposure to burning human waste and other environmental hazards. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1970 to January 1972 and from September 1974 to March 1994. For his meritorious service, the Veteran was awarded (among other decorations) the Bronze Star Medal, the Meritorious Service Medal, the Army Commendation Medal, the Army Achievement Medal, and the Southwest Asia Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded this matter for additional evidentiary development. The RO subsequently requested additional information from the Veteran, and scheduled him for an examination to obtain the Board’s requested medical opinions. The Board finds these actions to be in substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). 1. Entitlement to service connection for prostate cancer. The Veteran is seeking service connection for prostate cancer. He contends that this condition is secondary to his in-service vasectomy in February 1982. Alternatively, he contends that this condition is the result of his in-service exposure to herbicide agents, to burning human waste, and/or other environmental hazards. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of prostate cancer, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including prostate cancer, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents, which includes prostate cancer. 38 C.F.R. § 3.309(e). This presumption is effective only if there are circumstances establishing herbicide agent exposure during active military service. A Veteran who, during active service served in the Republic of Vietnam during the period beginning on January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. 3.307(a)(6)(iii). In this matter, the Veteran is not shown to have served in the Republic of Vietnam. See May 17, 2011 PIES [Personnel Information Exchange System] Information Request Response. Moreover, the Veteran has not made any verifiable allegation of such exposure. See Memorandum of In-country Vietnam Service, January 11, 2013. Thus, as herbicide agent exposure is not established, service connection may not be established for prostate cancer on the basis that it is linked to such exposure, presumptively or otherwise. Despite this, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran's prostate cancer was incurred or aggravated during service. The Veteran’s service treatment records are silent as to any complaints of or treatment for prostate cancer during service. A May 1994 VA general physical examination noted that the Veteran’s prostate was normal. The first post service showing of prostate cancer was not until 2010, over 15 years after his separation from service. Thus, the evidence of record is against any direct inservice incurrence of prostate cancer. The remaining issues for the Board to consider is whether the Veteran’s prostate cancer was proximately due to or the result of, or was aggravated by his in-service vasectomy, exposure to burning human waste, and exposure to several known carcinogenic chemicals and solvents. To the extent the Veteran believes his prostate cancer is related to his in-service vasectomy, exposure to burning human waste, and/or carcinogenic chemicals and solvents, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In support of his claim, the Veteran submitted an April 2011 letter from T.B., M.D., F.A.C.S. In the letter, Dr. B. noted that the Veteran was exposed to several known carcinogenic chemicals and solvents such as asbestos, hydraulic fluids, antifreeze, and a plethora of occupational petroleum products during his time in the Persian Gulf. Dr. B.’s letter, however, did not include an actual opinion linking the Veteran’s prostate cancer to his military service, including the referenced in-service exposure to carcinogenic chemicals and solvents. In April 2019, and again in May 2019, the RO contacted the Veteran for additional information regarding Dr. B. These attempts, however, went unanswered. The June 2019 VA examiner opined that the Veteran’s prostate cancer was less likely than not related to his military service, including his in-service vasectomy in February 1982, exposure to the burning of human waste, and exposure to several known carcinogenic chemicals and solvents. In support of this conclusion, the VA examiner cited the lack of any treatment or diagnosis of prostate cancer during service, the first evidence of this condition not being until 2010, and the lack of any in-service evidence of exposure to herbicide agents. The VA examiner also noted that prostate cancer was not currently recognized by the VA or the National Academy of Sciences as being associated with Gulf War environmental hazards, and there is no known association between a vasectomy and/or exposure to burning human waste and prostate cancer. In summary, there is no competent evidence that the Veteran's current prostate cancer is related in any way to his military service. The weight of the evidence is against his claim; there is no doubt to be resolved; and service connection for prostate cancer is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.