Citation Nr: 21029510 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-25 580 DATE: May 13, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune and as due to exposure to herbicide agents, is denied. Entitlement to service connection for erectile dysfunction, to include as due to prostate cancer, is denied. FINDING OF FACT 1. The Veteran's prostate cancer was not incurred in or due to his time in service, to include as due to exposure to contaminated water at Camp Lejeune and as due to exposure to herbicide agents. 2. The Veteran's erectile dysfunction was not incurred in or due to his time in service, erectile dysfunction, to include as due to prostate cancer, and is not proximately due to any of his service-connected disabilities, to include his prostate cancer. CONCLUSION OF LAW 1. The criteria to establish service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune and as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria to establish service connection for erectile dysfunction, to include as due to exposure to contaminated water at Camp Lejeune or proximately due to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1968 to April 1972, from September 1972 to December 1975, from February 1976 to February 1979, and from February 1984 to June 1989. These matters are on appeal from an October 1010 rating decision from a VA regional office. These matters were previously before the Board and were remanded for further development in October 2017. The development has been completed and the matters are again before the Board. During the pendency of this appeal, the Veterans Law Judge before whom the Veteran had his hearing in May 2017 (a transcript has been associated with the file), retired. In March 2021, a letter was sent to the Veteran informing him of this fact and offering him another hearing. However, the Veteran did not respond, indicating he is satisfied with his hearing of record. The undersigned has reviewed the transcript. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Prostate Cancer Claim The Veteran contends he has cancer, to include prostate, thyroid, and lymphoma, that was incurred in and due to his time in service, to include his exposure to contaminated water at Camp Lejeune and herbicide agents. In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309 (f). The law also provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time, even if there is no record of evidence of such disease during the period of service. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii). The Board notes that prostate cancer is one of the diseases subject to presumptive service connection. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). As a preliminary matter, the Board notes that prostate cancer is not one of the diseases on the list subject to presumptive service connection due to exposure to contaminated water at Camp Lejeune and therefore, service connection cannot be granted on this basis. The Veteran has been diagnosed with prostate cancer. The Veteran's record shows he was stationed at Camp Lejeune for more than 30 days in 1972 to 1973 and therefore, his exposure to contaminated water is conceded. The Veteran had an examination for his prostate cancer in July 2020. The examiner reviewed the Veteran's file and opined it was less likely than not the Veteran's prostate cancer was due to exposure to contaminated water at Camp Lejeune. The examiner noted the Veteran's relevant health issues, such as a remote smoking history, age greater than 50 at diagnosis, and mild obesity were all risk factors. The examiner reviewed the medical literature and opined that based on the Veteran's risk factors, the medical literature, and his brief tour of duty at Camp Lejeune, it was his opinion that the Veteran's prostate cancer was less likely than not caused by exposure to contaminated water. The examiner explained what prostate cancer was and further discussed the correlation between contaminated camp Lejeune and prostate cancer. However, the examiner noted that while some medical research suggested some association between prostate cancer and the components of the contaminated water at Camp Lejeune, there were other studies that found no elevated risk. The Veteran had another examination for his prostate cancer in September 2020. The examiner opined the Veteran's prostate cancer was at least as likely as not due to his time in service. The examiner explained that the Veteran was stationed at Camp Lejeune during the time there was exposure to contaminated water. This examiner noted that the medical literature was inconclusive, but it suggested repeat exposure to those toxins could cause increased risks for developing various cancers, including prostate cancer. However, the examiner also then stated there continued to be inadequate/insufficient evidence to determine whether an association exists between chronic exposure to TCE and prostate cancer. The examiner also stated it was at least as likely as not that the Veteran's prostate cancer was caused by herbicide exposure while in service. The Board must weigh the conflicting medical evidence of record regarding whether the Veteran's prostate cancer was due to his exposure to contaminated water. The Board notes that service connection cannot be granted on a presumptive basis as prostate cancer is not one of the listed diseases listed in 38 C.F.R. § 3.309 (f). The Board also notes that the September 2020 examiner stated the Veteran's prostate cancer was due to his exposure to herbicide exposure. However, the Board believes the examiner meant to say contaminated water as there is no other discussion about herbicides in this opinion. Even if the examiner meant to say the Veteran's prostate cancer was due to exposure to herbicides, the Board finds this opinion to be inadequate as there is no explanation or rationale offered for such opinion. The Board finds the July 2020 examination to be most probative. This examiner did a comprehensive review of the Veteran's file and gave a detailed explanation of the medical literature and the basis for his negative opinion. This examiner also offered other risk factors that may have increased the Veteran's probability for getting prostate cancer. Additionally, while the September 2020 offered an explanation for his opinion, the Board notes that even the examiner reported that the medical literature was "inconclusive" and was inadequate to determine whether there was an association between one of the compounds in the water was related to development of prostate cancer. Lastly, it appears that the July 2020 examiner researched more medical literature in forming the opinion than the September 2020 examiner, leading the Board to conclude that the July 2020 is a more comprehensive opinion. Beyond this, the Board must find that the service and post-service treatment records supports the negative medical opinion, indicating a problem that began decades after service with no connection to service. Turning to whether the Veteran's prostate cancer was due to his exposure to herbicide agents, the Board notes the Veteran's DD-214 and his military personnel records do not indicate he had service in the Republic of Vietnam. Additionally, in his May 2017 hearing, the Veteran stated he had not had service in Thailand, Vietnam, or Korea, though he did indicate he visited the DMZ as a civilian after the Vietnam war era had ended. Indeed, the Veteran himself has said his exposure was due to being around drums containing herbicide agents while in Okinawa, Japan. The Veteran said the drums were never sealed completely and the contents leaked into the ground and he did physical fitness on the fields where the drums were unloaded. (See e.g. June 2010, January 2011 statements.) However, in a July 2010 request for information regarding the Veteran's exposure to herbicides, the response came that there were no records of exposure to herbicides. This request was made twice with the same negative response. (See also August 2010 Request for Information.) The Veteran's service treatment records (STRs) and personnel records do not indicate he was exposed to herbicides while in service nor do they show that he was treated for prostate cancer while in service. The Veteran submitted an article from July 2007 saying that in 1998, a Board decision ruled in favor of a Veteran who claimed service connection for prostate cancer based on exposure to herbicides in Okinawa. The Board has considered this article submitted by the Veteran. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 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, the 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)); see also 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 article submitted by the Veteran is not a medical treatise, but rather a news story about the possible use of herbicides on Okinawa. It provides only general information and it is not accompanied by any corresponding clinical evidence specific to the Veteran and does not suggest a relationship between the Veteran's prostate cancer and herbicide exposure with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather. As such, the Board places little probative weight on this evidence. Additionally, the Board notes that previous Board decisions are not binding on subsequent cases. 38 C.F.R. § 20.1303. The Board has weighed the Veteran's statements about his exposure to herbicides and the objective evidence of record that does not show the Veteran had been exposed to herbicide agents. The Board places more weight on the lack of objective evidence that the Veteran was exposed to herbicides. While the Veteran may have believed herbicides may have leaked from barrels, he is a lay person and not qualified to opine as to whether the barrels did in fact leak, and whether that leakage caused exposure to herbicides or even if the barrels had herbicides in them. Based a review of the evidence of record, it appears that the Veteran is speculating about his exposure. Indeed, in his May 2017 hearing, the Veteran said he worked at the administrative offices in Okinawa. The Veteran said he would unload airplanes and would have to take chemicals off and on trucks. The Veteran said he just assumed it was herbicides that he was loading and unloading. The Veteran said his assumption was based on hearsay by people who were not trained in chemical agents or analysis. Thus, because herbicide exposure is not conceded and the Veteran's record does not indicate that he was seen in service for prostate cancer, the claim cannot be granted on either a presumptive or direct basis. Erectile Dysfunction Claim To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran contends he has erectile dysfunction (ED) that was incurred in and due to his time in service or that it is proximately due to his prostate cancer. However, in his May 2017 hearing, the Veteran conceded he did not have any instances of ED that began in service. The Veteran has been diagnosed with ED. The Veteran's STRs do not indicate he complained of or was treated for ED while in service. The September 2020 examiner reported the Veteran has been diagnosed with erectile dysfunction and opined it was at least as likely as not attributable to his prostate cancer status post radiation therapy. However, since the evidence does not show the Veteran's ED began in service, service connection cannot be granted on a direct basis. Additionally, because the Veteran's prostate cancer is not service-connected, it cannot be the basis for a finding of secondary service connection. There is also no indication the Veteran's ED was due to or aggravated by any of his other service-connected disabilities. Therefore, the claim will be denied. Regarding the claims above, the Board acknowledges and has considered the Veteran's statements that he believes his prostate cancer is due to his time in service and that his ED is due to his prostate cancer. The Board also recognizes the Veteran continues to seek medical treatment for his conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his cancers. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In fact, in his May 2017 hearing, the Veteran said none of his oncologists related his prostate cancer to herbicides or contaminated water and his medical records confirm this. Therefore, the Board provides more weight to the competent medical evidence of record and has weighed it appropriately as discussed above. It is important for the Veteran to understand that only certain diseases and types of cancers are subject to the presumption of exposure to contaminated water at Camp Lejeune and that the evidence of record does not support a finding that he was exposed to herbicide agents. The Board is sympathetic to the Veteran's health situation, but unfortunately, cannot grant service connection on either a direct or presumptive basis for his prostate cancer or ED. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.