Citation Nr: 21007454 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-02 250 DATE: February 9, 2021 ORDER Entitlement to service connection for prostate cancer residuals, to include incontinence and erectile dysfunction, is denied. FINDING OF FACT The Veteran was not exposed to asbestos during service; and prostate cancer was not incurred in or otherwise related to the Veteran’s active service, to include as due to jet fuel or trichloroethylene (TCE) exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of prostate cancer, to include incontinence and erectile dysfunction, have not been met. 38 U.S.C. § 1110, 1116, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1978 to January 1982, with additional service in the Reserve from August 1986 to January 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in June 2020, at which time it was remanded for additionally development. Specifically, the Board found that a remand was necessary because the VA opinion of record did not address the scholarly articles submitted by the Veteran that suggested a relationship between exposure to jet fuels and prostate. Accordingly, the Board directed that a direct service connection opinion should be rendered, specifically addressing the articles submitted by the Veteran’s agent in June 2014 that address the effects of exposure to TCE in relation to prostate cancer. If examiner did not find such articles to be persuasive, he or she should explain why. Additionally, an opinion addressing whether the episodes of impotence the Veteran experienced in service were initial manifestations of prostate cancer was requested. The requested opinions were received in January 2020, September 2020, and October 2020. The Board finds that the requested development, in substantial compliance with the Board’s remand directives, has been completed. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the “active military, naval, or air service.” 38 U.S.C. §§ 1110, 1131. The term “active military, naval, or air service” includes: (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38C.F.R. § 3.6(a). Certain chronic diseases may be presumed to have been incurred or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38C.F.R.§3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in §3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Evidentiary presumptions, however, including the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, do not extend to those who claim service connection based on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); McManaway v. Principi, 14 Vet. App. 275 (2001) (noting that “if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim”). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Entitlement to service connection for prostate cancer residuals, to include incontinence and erectile dysfunction, is denied. The Veteran contends that he is entitled to service connection for his prostate cancer residuals. Specifically, the Veteran contends that he was a jet engine mechanic during his active service from 1978 to 1982 and was consequently exposed to jet fuel and trichloroethylene (TCE) on a daily basis because TCE was used to clean engine parts. Additionally, he asserts that he was exposed to TCE during his reserve service as an engine mechanic from 1986 to 1992. Additionally, it appears that the Veteran is also asserting that his prostate cancer may be due to asbestos exposure. In support of his claim, the Veteran has cited to several medical articles and journal articles, including the Agency for Toxic Substance and Disease Registry (ATSDR), Registry for Toxic Effects for Chemical Substance (RTECS), National toxicology information program, National Cancer Institute, and EPA’s TCE Risk assessment and Human effects findings, among others, suggesting that TCE has been linked to prostate cancer. He also submitted articles suggesting a relationship between asbestos exposure and prostate cancer. The record reflects that the Veteran served as a jet engine mechanic while on active duty, in the Reserve, and as a civilian. Service treatment records (STRs) throughout his initial period of active service from 1978 to 1982 are silent for any complaints, treatment, or diagnosis for prostate cancer, although a January 1981 STR does note three episodes of impotence over the last year, without any other symptoms. Subsequent Reserve records, dated through January 2010, are silent for any complaints, treatment or diagnoses for prostate cancer or related symptoms. A December 2010 post-service medical treatment record notes that the Veteran complained of sexual dysfunction, and he was found to have an elevated PSA level upon routine testing. The Veteran underwent a biopsy, which confirmed a diagnosis of prostate cancer in December 2010. The Veteran underwent a radical prostatectomy in February 2011, and the Veteran currently has residuals of urinary incontinence and erectile dysfunction following a radical prostatectomy. Subsequent Reserve records note that the Veteran was evaluated and found medically qualified to return to duty but placed on Assignment Limitation Code (ALC)-C3 status indefinitely, permitting Reserve participation in unit training assemblies (UTA) and annual tours (AT) at his home duty station only. Thus, there is no evidence in this case that prostate cancer had its onset during his period of active service. Nor is there evidence to suggest the presence of prostate cancer until many years after the Veteran’s active service, and thus, there is no indication of continuity of symptoms since service or that the Veteran’s prostate cancer manifested to a compensable degree within one year of his separation from active service. Accordingly, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). Further, the record does not reflect that the Veteran received a diagnosis of prostate cancer during a period of ACDUTRA. See Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In this regard, although the Veteran reported that he learned of his prostate cancer diagnosis prior to a scheduled deployment and there is a December 2010 “pre-deployment record review” included in his records, there is nothing in record to indicate that he had been activated from Reserve status shortly before his diagnosis or otherwise received a diagnosis while on ACDUTRA. Indeed, the December 2010 “pre-deployment record review” indicates that the Veteran was in Reserve status at this time. Moreover, there is also no probative medical opinion of record relating the Veteran’s prostate cancer to active service. See 38 C.F.R. § 3.303(d); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As an initial matter, the Board acknowledges that a VA opinion has not been obtained addressing whether the Veteran’s prostate cancer may be related to asbestos exposure; however, the Board finds that remanding for such an opinion is not necessary because the record does not establish the in-service presence of an associated event, injury or disease. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Specifically, there is no indication in the record supporting that the Veteran was ever exposed to asbestos, other than his own lay reports. The Veteran has not shown that he has the necessary expertise to identify chemical compounds such that his observation alone is sufficient to establish the presence of asbestos and his exposure to such. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has presented articles indicating that there was a higher prevalence of asbestos exposure for those who served in the Air Force from the 1930s to 1970s due to contact with aircraft that were largely constructed with asbestos, the Board does not find that this establishes exposure, as asbestos exposure may not be presumed. Rather, it must be shown that asbestos exposure actually occurred. Dyment v. West, 13 Vet. App. 141 (1999). Therefore, the Board finds that the Veteran was not exposed to asbestos during active service and a remand for an opinion addressing this theory of entitlement is not warranted. The Veteran was afforded a VA examination in January 2014, which provided a diagnosis of prostate cancer. The examination notes that the Veteran reported that he was diagnosed with prostate cancer in December 2011. He said that he was getting ready to deploy to Japan with his unit when his cancer was discovered, indicating that his PSA levels jumped from 1.7 to 3.9 within one year. The Veteran indicated that he underwent a radical prostatectomy and reports frequent urination and erectile dysfunction. However, an etiological opinion was not provided. Moreover, in light of the submission of the articles by the Veteran’s agent, pertaining to the effects of exposure to trichloroethylene (TCE) in relation to prostate cancer in June 2014, the Board remanded the claim in order to afford the Veteran another VA examination so as to determine the etiology of his prostate cancer, to include whether such was related to his in-service exposure to jet fuel. Thereafter, the Veteran was afforded another VA examination in May 2019. At such time, the examiner opined that his residuals of prostate cancer were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion, the examiner noted that the nature of the Veteran’s military and civilian service but found that there was limited medical literature that supported a finding that jet fuel causes prostate cancer. In this regard, she cited an article by the National Institute of Health that indicated that an analysis of the available human data on occupational exposure to military fuel vapor suggests a weak association with kidney cancer or other cancers, and there was limited evidence of carcinogenicity from studies in humans. However, the examiner did not address the scholarly articles submitted by the Veteran suggesting such a relationship or explain why she found such articles to be less persuasive than those she cited in her opinion; therefore, the Board remanded for yet another opinion. Another opinion was rendered in January 2020, indicating that the Veteran’s prostate cancer is less likely than not incurred from exposure to jet fuel during his active duty and reserve service based on medical literature reporting that the etiology of prostate cancer is largely unknown, and the most significant risk factors for prostate cancer are age and genetics (African race and family history), which suggest that his current prostate cancer is not due to jet fuel exposure during active/reserve service. However, because this opinion also failed to address the articles submitted by the Veteran, in June 2020, the Board requested an addendum opinion. Another VA medical opinion was obtained in September 2020, noting a review of the Veteran’s claims file, including the articles submitted in support of his claim, and the examiner indicated that the articles are commonly seen in such cases. Specifically, the examiner indicated that although these articles support a possible association, the articles do not establish cause and effect. Age and genetics are the major risk factors for development of prostate cancer. The current, widely accepted, peer-reviewed literature has not established TCE, jet fuel, and the other toxic exposures cited in the articles as causes of prostate cancer. Therefore, it is less likely than not that the Veteran’s prostate cancer is due to exposure of the above-noted chemicals, including those in the articles submitted on the Veteran’s behalf. In October 2020, a VA examiner indicated that, after review of the Veteran’s claims file, including his lay statements, medical literature does not show impotence/erectile dysfunction as a symptom of early prostate cancer in and of itself. Regardless, erectile dysfunction in young men (on active duty, the Veteran was under 25 years old) is “due to organic, psychological and relational conditions. Among the organic conditions contributing to the onset of erectile dysfunction, metabolic and cardiovascular (CV) risk factors are surprisingly of particular relevance in this age group. Furthermore, the examiner indicated that there was no evidence of chronicity of care for impotence/erectile dysfunction on active duty or the available records through October 2008, when Cialis was started. Indeed, 1992 and 2000 records show no medical history of erectile dysfunction. A 2008 record also shows labs within normal limits, and a 2010 urology note indicates PSA levels within normal limits (3.1), which then elevated to 3.9 leading to work up and diagnosis of early localized prostate cancer. After a review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s prostate cancer is related to his active service, to include exposure to jet fuel or TCE. There is no medical opinion of record providing a positive nexus between the Veteran’s prostate cancer and active service. The September 2020 examiner reviewed the articles submitted by the Veteran’s agent, and nevertheless indicated that age and genetics are the major risk factors for the development of prostate cancer, which was based on peer reviewed medical literature and is also supported by the May 2019 opinion. Furthermore, the October 2020 opinion considered the in-service notation of impotence, and found that erectile dysfunction in young men is “due to organic, psychological and relational conditions, and medical literature does not show impotence/erectile dysfunction as a symptom of early prostate cancer. As there is no medical opinion to the contrary, the Board finds these opinions to be the most probative evidence of record. Moreover, there is no competent medical or lay evidence demonstrating continuity of symptoms since service. The Board has considered the argument set forth by the Veteran’s agent that appears to suggest that unspecified VA examination(s) were inadequate because the examiner did not consider lay statements, did not understand the benefit of the doubt standard, and the opinion contained inconsistencies, factual errors, incorrect legal or factual assumptions. Neither the Veteran nor his representative identified specific VA examinations when making these assertions. Accordingly, the Board will assume that he contends that both the September 2020 and October 2020 opinions were inadequate. The Board finds that these opinions are adequate for rating purposes. The VA examiners reviewed the Veteran’s pertinent medical history, which is supported by the medical evidence of record, and provided the requested opinions with supporting rationale. Furthermore, there is no indication that the lay statements were not considered. In this regard, the Veteran has indicated only that he was diagnosed with prostate cancer in 2011, followed by a radical prostatectomy, with residual erectile dysfunction and urinary frequency, which has been consistently noted in the medical evidence that was considered by the VA examiners. See Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). Additionally, the opinions rendered are not inconsistent with the Veteran’s reports of his symptoms. Finally, to the extent that the Veteran’s agent has indicated that the examiner does not understand the benefit of the doubt doctrine, the Board notes that the examiner is not required to consider the benefit of the doubt; it is the Board, not the examiner, who is the fact finder. Therefore, for all of these reasons, the Board finds the opinions adequate and the most probative evidence of record for purposes of deciding the claim. The Board has additionally considered the medical literature provided in support of the Veteran’s claim that his in-service TCE exposure caused his prostate cancer, including the newly cited to literature suggesting an increased risk of developing prostate cancer among aircraft maintenance workers exposed to TCE. Normally, medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The Board has considered and weighed such evidence but finds that the articles do not offer any probative support for the Veteran’s claim. The general articles do not address the facts that are specific to the Veteran’s case and do not tend to establish that the Veteran’s prostate cancer was the result of jet fuel or TCE exposure in service. Moreover, the September 2020 VA examiner reviewed these articles, and nevertheless found that it was less likely than not that his prostate cancer was due to such exposure. Therefore, the Board finds that the probative value of these medical articles is outweighed by the VA examiner’s opinions. The Board has also considered the Veteran’s contentions that prostate cancer is related to service. The Veteran is considered competent to report the observable manifestations of a claimed disability. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that determining the etiology of prostate cancer requires more than a layperson can be expected to competently address. In this case, the etiology of prostate cancer is a complex medical question that is not within the competence of a lay person and requires medical expertise. As there is no indication that the Veteran any medical training, education or expertise, the Board finds that he is not competent to etiologically link any symptoms or current diagnosis to his active service. Therefore, the lay assertions in the present case are outweighed by the existing medical opinions of record. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for prostate cancer. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.