Citation Nr: 21023219 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-06 459 DATE: April 20, 2021 ORDER The claim of entitlement to service connection for type II Diabetes mellitus is denied. The claim of entitlement to service connection for hypertension is denied. The claim of entitlement to service connection for prostate cancer is denied. The claim of entitlement to service connection for erectile dysfunction is denied. The claim of entitlement to service connection for incontinence is denied. REMANDED The claim of entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran was not exposed to the “certain herbicide agents” specified in 38 C.F.R. § 3.307(a)(6). 2. His diabetes, hypertension, and prostate cancer are not related to commercial herbicides, or toxic substances (toxaphene) found in Lake Fena. 3. His erectile dysfunction and incontinence are related to his prostate cancer, which is not service connected. CONCLUSIONS OF LAW 1. The criteria for service connection for type II Diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for incontinence have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to October 1973. This appeal is from August 2011 and August 2013 rating decisions. The Board last remanded these claims in April 2020 for additional development. The Veteran has not raised any issue with the development undertaken. Service Connection Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. The claim of entitlement to service connection for type II Diabetes mellitus is denied. 2. The claim of entitlement to service connection for hypertension is denied. 3. The claim of entitlement to service connection for prostate cancer is denied. The Veteran asserts that his diabetes, hypertension, and prostate cancer are related to exposure to toxic substances while serving on Guam. Specifically, he asserts exposure to Agent Orange. Agent Orange is among the “certain herbicide agents” used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, piclorum. 38 C.F.R. § 3.307(a)(6). Veterans that have specific service in Vietnam and within 12 nautical miles of Vietnam, or within certain units determined to have work in the Korean DMZ, or working with C-123 aircraft are presumed to have been exposed. Id. For Veterans that are exposed to the certain herbicide agents, service connection for prostate cancer and diabetes mellitus type 2 is presumed. 38 C.F.R. § 3.309(e). Hypertension is not listed among the disabilities presumed to be related to herbicide exposure, but he may assert a direct relationship. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s service does not meet the criteria set forth in 38 C.F.R. § 3.307(a)(6). There are no presumptions regarding exposure in Guam. In response to the Veteran’s assertions, development efforts were made by the AOJ (agency of original jurisdiction) to determine whether exposure was shown. In a July 2013 email from the Compensation Service, the AOJ was informed that the Department of Defense has provided a list of locations outside of Vietnam and the Korean DMZ that lists where tactical herbicides like Agent Orange were used, tested, or stored. The list does not include Guam. The email indicated that commercial herbicides were used there, but that these are not the herbicides contemplated by 38 C.F.R. § 3.307(a)(6), which were developed for use in the jungles of Vietnam. The compensation service indicated that the Joint Services Records Research Center (JSRRC). The JSRRC made a formal finding in November 2014 that herbicide exposure could not be confirmed. They noted review of the Veteran’s personnel files showing he was a guard at two stations in Guam, but that there was no record of Agent Orange ever being used or stored on Guam. They noted the websites the Veteran listed in support of exposure, as well as his statements. The Veteran was notified that exposure could not be corroborated in the January 2016 SOC (statement of the case). The Board has carefully considered the evidence submitted by the Veteran, to include websites, but finds that the Board finds that this evidence does not reflect his exposure to Agent Orange during service. The Veteran cites to Board decisions that have found Agent Orange was used on Guam. However, the facts of those cases do not match the facts here, and VA decisions do not create precedents. See 38 C.F.R. § 20.1303. Accordingly, the efforts to develop herbicide exposure were appropriate, but unfortunately unsuccessful. After review of the evidence, the Board finds that exposure is not shown. The Board acknowledges the Veteran’s statements regarding observing the spraying of defoliant, and that he was told it was the same spray that was used in Vietnam. The Veteran does not have the expertise to competently identify what was being used or stored, nor has he established the competency of the reporter of that information, and none of the evidence reasonably demonstrates that the herbicides cited in the regulation were used in Guam. Therefore, service connection for prostate cancer may not be granted based upon exposure to herbicides. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the record does show the Veteran was likely exposed to commercial herbicides. He also has submitted official documentation that he was exposed to toxaphene, which was found in Lake Fena near the Veteran’s base. The August 2020 VA examiner addressed these exposures. The examiner indicated that a search of the literature did not support a relationship between commercial herbicides and diabetes, hypertension, or prostate cancer. The examiner indicated that toxaphene was an insecticide used primarily for cotton in the southern United States during the late 1960s and 1970s. Toxaphene is a mixture of over 670 different chemicals and is produced by reacting chlorine gas with camphene, and was banned in the United States in 1990 and globally by the 2001 Stockholm Convention on Persistent Organic Pollutants. It is a very persistent chemical that can remain in the environment for 1–14 years without degrading, particularly in the soil. The examiner indicated that effects on the immune system had been observed in laboratory studies of animals that were given toxaphene by mouth, but they received amounts that exceeded what would be taken in by eating food or drinking water containing toxaphene. He opined that it was not likely that toxaphene caused diabetes or hypertension. He noted that toxaphene may be carcinogenic in humans, and that studies found it caused liver and thyroid cancer in mice and rats when exposed to large amounts. He opined that toxaphene was not related to prostate cancer. These are the only medical opinions directly addressing the exposures that have been identified from his service. The Board finds them probative, as they address the Veteran’s theory and the facts of the case. The Board notes the Veteran has not raised any issues with the August 2020 VA examination report. The Board acknowledges the Veteran’s sincere belief of a relationship between his current diagnoses and his exposures in service, but he does not have the training or expertise to competently identify the cause of his diabetes, hypertension, and prostate cancer. Indeed, the VA examiner investigated his theory and found it less likely. The Board also finds that service connection is not warranted on a direct basis. 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. Shedden, supra. His STRs do not show any suggestion that his diabetes, hypertension, or prostate cancer had their onset during service or within the year after separation. He has not asserted any other relationship except to his exposures, for which a relationship has not been shown. The December 2019 VA examiner opined that a relationship between these disabilities and his service was less likely as there was nothing in his STRs to show any relevant symptoms. The August 2020 VA examiner similarly opined the records were silent for symptoms of these disabilities. The Board notes that diabetes and hypertension are considered chronic and presumed related to service if diagnosed during service or within the year following separation. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, there is no evidence that either was diagnosed during service or within the year after separation. As for diabetes, the August 2020 VA examiner noted it was diagnosed in 2010, over thirty years after separation. As for hypertension, the August 2020 VA examiner noted he was normotensive on separation from service, and the December 2019 VA examiner noted the Veteran reported that hypertension was diagnosed approximately 20 years earlier, which was over 25 years after separation from service. Accordingly, there is no evidence that suggests diabetes or hypertension manifested in accordance with 38 C.F.R. § 3.307(a)(3), and service connection for diabetes and hypertension is not available via chronicity. Accordingly, service connection for diabetes, hypertension, and prostate cancer must be denied. 4. The claim of entitlement to service connection for erectile dysfunction is denied. 5. The claim of entitlement to service connection for incontinence is denied. The Veteran has claimed service connection for erectile dysfunction and incontinence as secondary to his prostate cancer, as per his August 2012 statement to his congressman. The December 2019 VA examiner opined that erectile dysfunction was related to prostate cancer, and that urinary frequency was likely related to diabetes. However, as discussed above, neither the prostate cancer nor the diabetes has been found to be related to service; therefore, secondary service connection is not available. 38 C.F.R. § 3.310. The Veteran has not asserted any other relationship, and the record does not suggest any other relationship. Accordingly, service connection must be denied for erectile dysfunction and incontinence. REASONS FOR REMAND The claim of entitlement to service connection for a lumbar spine disability is remanded. The Board regrets this additional delay, but, unfortunately, the VA examination opinions of record continue to be inadequate on their own to adjudicate the claim. The Veteran has consistently reported that he had treatment for his back following separation from service in the 1970s through the mid-1980s. The November 2020 VA examiner indicated there was no evidence of chronicity of care, but did not appear to consider the Veteran’s statements, or explain why the Veteran’s statements (which the Board had asked the examiner to obtain) were not helpful in establishing a relationship. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that any low back disability is related to service. The examiner is asked to elicit from the Veteran a detailed history of his symptoms and treatment during and since service. The Veteran reports that he was treated for the low back from private treatment providers from 1974 to 1985, after which he did not have any treatment again until after 2000. The examiner is asked to elicit details of that treatment from the Veteran. He reports that his back was injured as a boxer during service and that he has had persistent symptoms since separation. All opinions must be accompanied with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.