Citation Nr: 21010749 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 11-03 880 DATE: February 25, 2021 ORDER Service connection for residuals of prostate cancer is denied. FINDING OF FACT Prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include exposure to asbestos and/or laundry cleaning chemicals, and did not manifest to a compensable degree within one year of discharge from active duty. CONCLUSION OF LAW The criteria for service connection for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969, and from January 1976 to March 1978, with several periods of active duty for training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2009 by a Department of Veterans Affairs (VA) Regional Office. In a February 2011 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge. However, in a March 2011 statement, he withdrew his hearing request. In October 2017, as relevant, the Board denied the Veteran’s claim for service connection for residuals of prostate cancer, and he subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Veteran and the Secretary of VA (the parties) Joint Motion for Remand (JMR) and, in an August 2018 Order, the Court granted the JMR, and vacated and remanded the decision to the Board. In November 2018 and June 2020, the Board remanded the claim for additional development and, as the opinions obtained pursuant to the latter remand substantially comply with such directives, no further action is necessary. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). The case now returns for further appellate review. Entitlement to service connection for residuals of prostate cancer, to include as due to exposure to asbestos or laundry cleaning chemicals. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as malignant tumors, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has residuals of prostate cancer related to his in-service exposure to asbestos and/or laundry cleaning chemicals. In this regard, in May 2010, he submitted a Veterans Benefits Administration document discussing asbestos exposure and possible connection to cancer. In February 2011 and May 2011, the Veteran submitted articles discussing asbestos and prostate cancer. Finally, in October 2018, he submitted articles on exposure to asbestos and its link to cancer from the National Cancer Institute and the American Cancer Society. In the October 2017 decision, the Board acknowledged that, while the Veteran’s service treatment records were negative for any complaints, treatment, or diagnosis of prostate cancer, he was exposed to asbestos and laundry cleaning chemicals during service. In this regard, he served onboard several U.S. Navy ships and in U.S. Navy shipyards, to include in quarters with piping wrapped in asbestos materials, and his military occupational specialties were laundryman and barber. Furthermore, the Veteran’s post-service private treatment records show that he underwent a total prostatectomy to treat prostate cancer in April 2004. Consequently, in June 2017, Board obtained an advisory medical opinion from a VA physician with expertise in hematology and oncology. She reviewed the claims file, and provided an in-depth review of current medical literature, including medical articles addressing exposure to asbestos and dry cleaning agents and the impact of that exposure on prostate cancer. The examiner determined that the Veteran’s prostate cancer was not likely to be attributable to exposure to either asbestos or dry cleaning agents, as medical literature from Up to Date and PubMed did not indicate any association. Thereafter, in October 2017, the Board denied the claim on the basis of the June 2017 VA examiner’s opinion; however, the July 2018 JMR found that the Board erred in relying on such opinion because the examiner failed to discuss the medical literature submitted by the Veteran, which the Board had requested in its solicitation of the opinion. Consequently, the Board remanded the case in November 2018 in order to obtain another opinion that considered such medical literature. In April 2019, following an examination, a VA examiner opined that it is at less likely than not that the Veteran’s prostate cancer was incurred in or caused by the claimed in-service injury, event, or illness. In support of such opinion, she stated that, although the Veteran has had prostate cancer, it has not been linked to asbestos and cleaning chemical exposure. Thus, she concluded that a nexus has not been established. However, as the examiner did not address the medical literature submitted by the Veteran as directed in the November 2018 remand or provide a complete rationale for her opinion, the Board again remanded the case in January 2020 in order to obtain an addendum opinion. In July 2020, a VA examiner reviewed the record and opined that the Veteran’s prostate cancer is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such opinion, he noted that studies have discussed an association between asbestos and cancer in general; however, the only clear link as to cause and effect is between mesothelioma and asbestos exposure. In this regard, the examiner indicated that the widely accepted, peer-reviewed literature has not established a link between prostate cancer and exposure to asbestos. He further stated that there is no direct link as to cause and effect between common laundry cleaning chemicals, including those used for dry cleaning. The examiner indicated that associations do not establish cause and effect, and while the articles submitted by the Veteran in May 2010, February 2011, and May 2011 were not available to him, those submitted from the National Cancer Institute and the American Cancer Society in October 2018 do not establish cause and effect. Consequently, the examiner found that it is less likely than not that the Veteran’s prostate cancer is due to or incurred in service as a result of asbestos exposure or exposure to commonly used laundry chemicals, including those for dry cleaning, while in service. As the July 2020 VA examiner was unable to review all of the medical articles submitted by the Veteran, an addendum opinion was obtained in October 2020. Specifically, at such time, a different VA examiner reviewed the record, to include all of the articles submitted by the Veteran, and indicated that she agreed with the prior opinion that the Veteran’s prostate cancer was less likely as not related to his military service, to include his asbestos exposure or military occupational specialty of a laundryman. In this regard, she stated that the various articles, including those from the National Cancer Institute and Asbestos.com asbestos exposure as a risk factor for prostate cancer, but no causation was established. Specifically, she indicated that the articles were fact sheets and do not provide evidence of peer reviewed, double blind studies that prove causation. The examiner further found that none of the articles or medical citations showed causation. Thereafter, another opinion was sought for clarification purposes and, in November 2020 yet another VA examiner reviewed the record, to include all of the articles submitted by the Veteran, and opined that it is less likely than not that his prostate cancer is due to or the result of asbestos exposure or exposure to commonly used laundry chemicals, including those for dry cleaning. In this regard, she explained that prostate cancer is a slow growing cancer that affects the prostate, and the cause of prostate cancer is not entirely known. Risk factors that may increase the risk of developing prostate cancer can include age, race, family history of prostate cancer, or obesity. The examiner noted that some studies have found a possible association between high exposure to asbestos and prostate cancer; however, the study is limited in that it did not include the multiple risk factors for prostate cancer. Additionally, there is no objective medical evidence linking prostate cancer to commonly used laundry chemicals, including those for dry cleaning. Given the multifactorial etiology involved in the development of prostate cancer and the fact that there is no objective medical evidence linking prostate cancer to commonly used laundry chemicals, including those for dry cleaning, the examiner found that it is less likely than not that his prostate cancer is due to or the result of asbestos exposure or exposure to commonly used laundry chemicals, including those for dry cleaning. As the November 2020 VA examiner did not explicitly discuss the medical articles submitted by the Veteran, another opinion was obtained in December 2020. At such time, the November 2020 examiner again opined that it is less likely than not that the Veteran’s prostate cancer is due to or the result of asbestos exposure or commonly used laundry chemicals, including those for dry cleaning. In this regard, she indicated that she considered the Veteran’s lay statements and each of the articles he submitted addressing prostate cancer and asbestos exposure. The examiner observed that such articles noted that “scientific studies have documented a possible link between asbestos exposure and prostate cancer” and “a lucid understanding is of this plausible connection will only be achieved through further research and analysis”. However, she found that the available scientific and medical evidence noted in medical literature does not support or confirm the conclusion that prostate cancer is associated with asbestos exposure or commonly used laundry chemicals, including those for dry cleaning. Thus, the examiner again determined that there is no established causal link for prostate cancer due asbestos exposure or due to commonly used laundry chemicals, including those for dry cleaning. The Board affords great probative weight to the VA examiners’ opinions from July 2020, October 2020, November 2020, and December 2020 as such considered all of the pertinent evidence of record, to include the Veteran’s contentions, medical history, and relevant medical literature, to include the articles he submitted, and the examiners provided a complete rationale, relying on and citing to the records and articles reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. The Board has considered the various articles submitted by the Veteran suggesting a possible relationship between prostate cancer and asbestos exposure. In this regard, such evidence can, in some circumstances, constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must “not simply provide speculative generic statements not relevant to the [claimant]’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, treatise evidence, “standing alone,” must discuss “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.” Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). In this case, the articles only provide general information as to the possibility that a relationship exists between prostate cancer and exposure to asbestos. They are not accompanied by any corresponding clinical evidence specific to the Veteran and they do not suggest a generic relationship between his prostate cancer and in-service exposure to asbestos with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds that the information in the articles is not relevant as to the matter for consideration and, therefore, is not probative to this case. Wallin, supra; Sacks, supra. The Board also considered the Veteran’s assertions that his prostate cancer is related to his in-service exposure to asbestos and/or laundry cleaning chemicals; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of prostate cancer involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that the Veteran’s statements as to the etiology of his prostate cancer are not competent evidence and, consequently, are afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that a malignant tumor of the prostate manifested to a compensable degree within one year of the Veteran’s separation from service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to such disorder. Rather, it was not diagnosed until the early 2000’s, which is more than 20 years after his separation from his most recent period of service. Furthermore, the Veteran has not alleged a continuity of symptomatology since service. Consequently, presumptive service connection for prostate cancer is not warranted Therefore, based on the foregoing, the Board finds that the Veteran’s prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include exposure to asbestos and/or laundry cleaning chemicals, and did not manifest to a compensable degree within one year of discharge from active duty. As such, service connection for residuals of prostate cancer is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for residuals of prostate cancer. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.