Citation Nr: 21028346 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-35 577 DATE: May 11, 2021 ORDER Service connection for prostate cancer is granted. Service connection for migraine headaches is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents by virtue of his service aboard the USS Blue Ridge while it was in northern Vietnamese waters. 2. The Veteran has been diagnosed with prostate cancer. 3. The Veteran is presumed to have been exposed to contaminated water during service at Camp Lejeune, North Carolina. 4. The Veteran's migraine headaches were not incurred in service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 1116, 1116A, 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 in the United States Navy from October 1972 to October 1979. These matters come before the Board of Veterans' Appeals (Board) from a February 2010 rating decision from a Department of Veterans Affairs (VA) regional office (RO). They were most recently remanded by the Board in October 2020 to complete additional development. This development was completed. Available records from Westgate Family Physicians were obtained, the Veteran was informed of how to submit any records that were unavailable, the Veteran stated he had no additional records to submit, and a new examination was conducted. A supplemental statement of the case was issued in February 2021. The matters are now before the Board again. The Veteran was afforded a hearing before the undersigned March 2014. A transcript of the testimony has been associated with the claims file. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an 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. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Regarding the competency of lay evidence, 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). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. At 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Prostate Cancer The Veteran contends that his prostate cancer is due to exposure to contaminated water at Camp Lejeune, North Carolina. However, the Board has additionally considered his presence in the Republic of Vietnam and concluded service connection must be presumed due to presumed exposure to herbicide agents. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Prostate cancer is among those diseases. Before 2019, VA interpreted the term "service in the Republic of Vietnam" to include both service on the landmass of the Republic of Vietnam and aboard ships operating within Vietnam's inland waterways. The term did not include Veterans who served only aboard offshore ocean-going vessels. See Haas v. Peake, 525 F.3d 1168, 1192-93 (Fed. Cir. 2008). In Procopio, the Federal Circuit held that the phrase "the Republic of Vietnam" includes the 12 nautical mile territorial sea of Vietnam. Accordingly, the presumption of exposure to herbicide agents extends to those Veterans who had service, not only on the landmass and inland waterways, but also the territorial sea extending 12 nautical miles from the shores of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (2019). Under the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019) (BWNVVA) (to be codified at 38 U.S.C. §§ 1116A, 1116B, 1822, 3703, 3731) the presumption of exposure to herbicide agents is available to veterans who served offshore of Vietnam if the location was not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting certain specified points of latitude and longitude. The Veteran has been diagnosed with prostate cancer, which, as noted, is a disease associated with exposure to herbicide agents pursuant to 38 C.F.R. § 3.309(e). The record also reflects that the Veteran is entitled to the presumption of exposure to herbicide agents. The evidence confirms that he served aboard the USS Blue Ridge from January 1973 to January 1975. At the March 2014 hearing, the Veteran indicated he had service in Vietnam. The Board has taken judicial notice of 1973 command operations report, which indicates the USS Blue Ridge spent two nights in northern Vietnamese waters off the coast of Vinh and Hon Matt in July 1973. USS Blue Ridge Command Operations Report, Jan-Dec 1973, https://www.history.navy.mil/content/dam/nhhc/research/archives/command-operation-reports/ship-command-operation-reports/b/blue-ridge-lcc-19-iii/pdf/1973.pdf. The command operations report is an official record, which generally enjoys a high degree of probative value in the law. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Therefore, as the record establishes that the Veteran served in the Republic of Vietnam, he is entitled to the presumption of exposure to herbicide agents. See Procopio, supra. Therefore, service connection for prostate cancer is presumed. 2. Migraine Headaches The Veteran contends the migraine headaches are related to exposure to contaminated water at Camp Lejeune, North Carolina. The Veteran's current headache condition is correctly diagnosed as migraine headaches as found by all VA examiners. Additionally, the private opinion submitted by the Veteran in May 2020 indicates that the most probable diagnosis is migraine headaches based on the findings of a December 2009 ophthalmologist report and a May 2017 sinus x-ray, which together ruled out alternative diagnoses. The Veteran's records and correspondence have identified two possible in-service incurrences: exposure to contaminated water at Camp LeJeune and the occurrence of headaches beginning in-service. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). The Veteran's service personnel records indicate he served at Camp Lejeune from April 1976 to October 1979. This service is sufficient to show the Veteran was exposed to the contaminated water. Additionally, the Veteran's service-treatment records indicate he reported headaches during his active service. Headaches were documented in the Veteran's service treatment records at various times between 1975 and 1979. Given the presence of a current disability and in-service events, the Board must evaluate whether there is a causal relationship between the two. Although some disabilities may be presumed to be related to exposure to contaminated water at Camp Lejeune, migraine headaches are not in that category. See 38 C.F.R. §§ 3.307 and 3.309. Still, consideration must be given to whether there is an in-fact causal relationship between the exposure and the disabilities. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran has reported that he did not have headaches before being stationed at Camp Lejeune. A private provider in August 2011 stated that his medical conditions cannot be ruled out as being related to Camp Lejeune, but that the doctor would also defer to specialists on this issue. Another private provider indicated in August 2017, that the headaches are often associated with the development of Parkinson's disease, and suggests that since Parkinson's disease may be presumed to be related to exposure to contaminated water at Camp Lejeune, that headaches could also be related to the exposure. In contrast, VA medical opinion from July 2018 reviewed the various medical studies conducted on the solvents found in the contaminated water and diseases they may cause. Although some neurological effects have been demonstrated, there were no studies that indicated headaches were caused by these solvents. The examiner provided an opinion that based on review of the records available at the time and the medical studies the Veteran's headaches were not related to his exposure to contaminated water. Similarly, another examiner in January 2021 reviewed available studies related to the solvents in the contaminated water. This examiner noted these studies showed no causal relationship between the solvents and the development of migraine headaches. The examiner noted that one study showed an association between the two but noted that this association occurred at a higher concentration of the solvents over a longer period than the Veteran's exposure. Further, the effects were reversable when exposure ended. The examiner concluded the Veteran's migraine headaches were not related to exposure to contaminated water at Camp Lejeune. The two opinions that reviewed the studies associated with the solvents in the contaminated water at Camp Lejeune are more probative given their discussion of the studies. The private opinions provided are speculative and qualified. More weight is assigned to two examiner's opinions. Thus, the preponderance of the evidence is against establishing a causal relationship between the exposure to contaminated water at Camp Lejeune and the Veteran's current disability of migraine headaches. The alternative theory of a causal relationship is that the Veteran had headaches in service and the current migraines are of the same origin. The Veteran has specifically stated that his headaches began in service and have continued ever since. There is a presumption of service connection (rebuttable only by "clearly attributable intercurrent causes") for a chronic disease which manifests during service and then again at any later date, however remote. 38 C.F.R. § 3.303(b). As an organic disease of the nervous system, migraine headaches are considered a chronic disease for VA compensation purposes. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The preponderance of the evidence is against establishing the Veteran's headaches in service were a chronic disease. The Veteran's private provider stated in a May 2020 opinion the headaches in service may have been misdiagnosed migraine headaches. She noted that the diagnoses are commonly conflated and a journal article explaining the similar symptoms. A February 2021 VA opinion stated the headaches in service were not likely migraine headaches. The examiner reviewed the documentation associated with headaches reported in the service treatment records and determined they were acute instances of headaches and not migraine headaches. The February 2021 opinion is more probative because it reviews the service treatment records contemporary to the in-service headaches and finds the diagnoses to be accurate. The May 2020 opinion, while indicating there may have been a misdiagnosis, points to no specific facts in the Veteran's records that would indicate such a misdiagnosis. Instead, it only notes the misdiagnosis is common. As this statement does not relate to the facts present in the Veteran's service treatment records, it is less probative to the matter at hand. The weight of the evidence is against finding continuity of headaches since service. The Veteran has stated that his headaches have been constant since service. The Veteran is competent to provide such testimony. However, there are no treatment records that support this statement. While this is not necessary to show continuity, the records available indicated the Veteran's statement is not credible. The Veteran's exit examination indicates the Veteran did not have chronic headache at the time. Further, there are references to various drugs causing headaches and one instance where the Veteran' reported in February 2009 that he had been having headaches for 8 months. While neither of those instances indicate the Veteran never had headaches before those instances, it does indicate they were infrequent enough to notice them as a side-effect or out of place for being frequent for an 8-month period. The most probative evidence is the denial of chronic headaches at exit. It was contemporaneous at the time and is further supported by February 2021 opinion above that indicated the incidences of headaches in-service were isolated and acute. Further, while the Veteran may have had headaches between service and the development of the current disability of migraine headaches, the treatment records reflect that their occurrence was infrequent. Thus, the preponderance of the evidence is against establishing continuity of headaches since service. Finally, a May 2020 private opinion found a direct relationship between the in-service headaches and the current migraine headaches. However, this opinion is based on the misdiagnosis theory above and a continuity theory of entitlement. As the weight of the evidence is against both premises, the opinion on direct service connection is not entitled to any weight as it is based on inaccurate premises. The claim is therefore denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, 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.