Citation Nr: 21009892 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-34 906A DATE: February 23, 2021 ORDER Service connection for unspecified tremors is granted. Service connection for prostate is denied. FINDINGS OF FACT 1. Unspecified tremors had their onset in service. 2. Prostate cancer, to include as due to exposure to chemicals including HAZMAT, JP5, and TCE/ PCE, did not occur because of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for unspecified tremors, to include as due to toxic chemicals have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to September 1985. The Veteran and his wife presented sworn testimony at a hearing in November 2019 before the undersigned Veterans Law Judge (VLJ). This appeal was remanded by the Board in April 2020. Service Connection The Veteran asserts that service connection for service connection is warranted for an unspecific tremor disability as well as prostate cancer due to exposure to toxic chemicals, including HAZMAT, JP5, and TCE/ PCE. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection will be presumed for certain diseases, if manifested to a compensable degree within one year after discharge from active duty. 38 U.S.C. §§ 1101 (3), 1112(a)(1); 38 C.F.R. §§ 3.307, 3.309(a). In this case, the Veteran did not manifest a chronic, tropical, prisoner of war related disease, or a disease associated with herbicide agents within the applicable time period, hence, the presumption does not apply. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski,1 Vet. App. 49, 57 (1990). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for unspecified tremors as due to toxic chemicals. The Board finds that service connection for unspecified tremors as due to toxic chemicals is warranted. The Veteran reported experiencing unspecified tremors as due to toxic chemicals during the appeal period. See November 2019 Board Hearing Transcript. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tremors. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds him credible, as his statements have been detailed and consistent. Therefore, the Board determines that the first element of service connection is satisfied. The Veteran’s military occupational specialty was a system aircraft organizational maintenance technician. The Veteran explained that he was exposed to hazardous material from aircraft that he maintained while in service. See November 2019 Hearing Transcript. Specifically, the Veteran explained that he was exposed to JP5, TCE, PCE and other HAZMAT. Id. Therefore, in-service exposure to chemicals is conceded. The Veteran competently and credibly reports that his unspecified tremors began during active duty service and has been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994); see also November 2019 Board Hearing Transcript. The Board notes the September 2020 negative nexus VA medical opinion. The VA examiner explained that there was no research found to support that jet fuel causes essential tremors. The Board notes, however, that the VA examiner’s opinion lacked sufficient rationale in that while it documented that a statement had been received, it failed to consider the statement of K.T., the Veteran’s former spouse, who corroborated the Veteran account, stating that she witnessed the Veteran experience tremors soon after discharge. See Statement from K.T. dated April 2020. The Veteran presented sworn testimony that he has had tremors continuously since he left service. See November 2019 Board Hearing Transcript. The Veteran is competent to give reports of tremors with continued symptoms since service and the Board finds his account credible. Here, because the competent and credible evidence shows that the onset of the Veteran’s tremors was in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). 2. Entitlement to service connection for prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE. The Veteran seeks service connection for prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE. The Board finds that service connection for prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE is not warranted. Establishing service connection generally requires 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Based on a careful review of the medical treatment records, the Board finds that service treatment records are silent for complaints or diagnoses of prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE conditions during service. A review of the claims file does not show prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE related to service. The Veteran testified during his November 2019 hearing that his prostate cancer is related to his exposure to chemicals while serving as an aircraft mechanic on active duty. See November 2019 Board Hearing Transcript. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute prostate cancer to his military service or a service-connected disability. Therefore, the Veteran’s statement that he has prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE related to service is not competent and therefore not probative. The Veteran was afforded a VA examination in September 2020. After physical examination and review of the Veteran’s medical history, the examiner opined that the Veteran’s prostate cancer was not caused by his exposure to jet fuel and other chemicals because no consistent research supports the claim. The Board notes that the Veteran’s prostate cancer was diagnosed in July 2016, over 30 years after his discharge from service. See September 2020 VA examination; see also October 2020 addendum. As there is no competent evidence, lay or otherwise, showing that the Veteran has prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE aggravated by service or evidence showing an in-service event or injury that could cause such disability, the preponderance of the evidence is against the Veteran’s claim and there is no doubt to be resolved. Therefore, service connection for prostate cancer due to exposure to chemicals, to include HAZMAT, JP5, and TCE/ PCE is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.