Citation Nr: 21031871 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 09-25 958 DATE: May 24, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, chemicals, and/or ionizing radiation is denied. FINDINGS OF FACT 1. The Veteran was not exposed to tactical herbicide agents in service. 2. The preponderance of the evidence is against finding that prostate cancer began during active service, or is otherwise related to an in-service event, injury or disease, including exposure to ionizing radiation, non-tactical herbicides or ionizing radiation. CONCLUSIONS OF LAW The criteria for entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, chemicals, and/or ionizing radiation have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1962 to May 1964. He testified before the undersigned Veterans Law Judge at a March 2012 Board hearing. In April 2020 this matter was last before the Board, at which time it was remanded. 1. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, chemicals, and/or ionizing radiation. The Veteran contends that his prostate cancer is attributable to service. He claims that the prostate cancer is related to an in-service notation of "prostate slightly boggy" in March 1963 noted in conjunction with penile drip and an assessment of gonorrhea. He claims that his prostate cancer is related to herbicide and/or chemical exposure while he was stationed in Germany. He also claims that his prostate cancer is due to exposure to ionizing radiation. Presumptive Service Connection, Herbicide Agents The Veteran has testified that he patrolled near barrels of chemicals that had a strange odor that would linger on his clothes. He has recalled that the barrels said "biochemicals" and "orange" on them. Service incurrence for certain diseases, to include prostate cancer, will be presumed on the basis of association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Such presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. Initially, the Board will address the Veteran's claim in the context of exposure to tactical herbicide agents. While presumptive service connection is available for prostate cancer as due to exposure to tactical herbicide agents, presumptive exposure to such agents is not warranted for service in Germany. However, the presumption would apply if the exposure were shown. A VA request to the Joint Service Research Records Center (JSRRC) was made in June 2012. In September 2012 the JSRRC confirmed the Veteran's service in Karlsruhe, Germany with the 78th Engineer (Combat) Battalion. However, the JSRRC found no historical record of the spraying, testing, transporting, storage or use of Agent Orange in Germany, and was unable to document or verify exposure to Agent Orange or tactical herbicides. VA also requested information from the Department of the Army, U.S. Army Medical Research Institute of Chemical Defense (USAMRICD) regarding chemical exposure. In September 2012, this agency responded negatively, stating that the agency had "no information concerning this [V]eteran or of [hazardous- exposures" in Germany. In August 2013, the RO made a formal finding that there was a lack of information to corroborate the Veteran's claimed exposures to tactical herbicide agents and chemicals. In June 2018, the Department of the Army, Office of the Surgeon General (OSG), responded to VA's request for information regarding alleged occupational and environmental exposure to herbicides and other chemicals during the Veteran's service in Germany. The agency responded that it had no such records and commented that no archived pest control reports for Germany from 1962 through 1964 were found. The agency explained that it was Department of Defense (DoD) policy in the 1960s to use only commercial herbicides and pesticides registered in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act of 1964, subject to the laws and regulations governing the transportation, storage, handling and use requirements. Here, the Board concludes that it is not shown that the Veteran was exposed to any tactical herbicides such that presumptive service connection for prostate cancer is warranted. The Board acknowledges the Veteran's reports of exposure to alleged herbicides. However, the Veteran's testimony is substantially outweighed by the responses from the JSRRC, USAMRICD and OSG which found no evidence of any use or storage of any tactical herbicide agents or hazardous chemicals during the Veteran's service in Karlsruhe, Germany. Accordingly, the Veteran was not exposed to tactical herbicide agents and presumptive service connection for prostate cancer is not warranted. Service Connection, Chronic Disease Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Where a veteran served ninety days or more of active military service and malignant tumors become manifest 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 in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection is not warranted for prostate cancer as a chronic disease. The service records document a singular impression of a seemingly boggy prostate in March 1963, and a normal clinical examination of the genitourinary system at separation. A biopsy dated in October 2005 showed no prostate cancer. The Veteran was not assessed as having prostate cancer by biopsy in February 2007. Thus, prostate cancer did not manifest in service or within the first post-service year. Moreover, there is no indication of continuing symptomatology, with the Veteran's gonorrhea, penile drip and seemingly boggy prostate having resolved by his separation in 1964. Thus, service connection for prostate cancer as a chronic disease is not warranted. Direct Service Connection Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of prostate cancer, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of prostate cancer began during service or is otherwise related to an in-service injury, event, or disease. As noted above, a March 1963 service treatment record documents an impression of a slightly boggy prostate on examination. At that time, the Veteran complained of a penile drip for 5 weeks and was assessed with and treated for gonorrhea (GC). Separation examination in March 1964 showed a normal genitourinary system. At separation the Veteran denied venereal disease and frequent or painful urination. The Veteran has testified that during his service in Germany he patrolled near barrels of chemicals that had a strange odor, which would linger on his clothes. He has recalled that the barrels said "biochemicals" and "orange" on them. However, as outlined above, numerous attempts at corroboration have failed to show any exposure to herbicide agents or other hazardous chemicals in service. The Veteran points to the penile drip and seemingly boggy prostate in service as the onset of his prostate cancer and asserts that his prostate cancer is attributable to herbicide and chemical exposures. As outlined above, the Board has concluded that the Veteran was not exposed to tactical herbicide agents or any other hazardous chemicals during his service. The Department of the Army, through the JSRRC, USAMRICD and OSG, has been unable to find any evidence of the Veteran's claimed exposures. The Veteran is competent to report his observations, including his sense of smell. However, while he is competent to relate these observations, he is not competent to determine whether he was exposed to tactical herbicide agents or any hazardous chemicals. This is a technically complex question beyond the purview of the Veteran. Jandreau, at 1377 n4. The Veteran's assertions are substantially outweighed by the findings of the Department of the Army. Thus, service connection based upon these exposures must be denied. Otherwise, the Board acknowledges the in-service notation of a possibly boggy prostate, penile drip and assessment of gonorrhea in March 1963. However, VA treatment records show the Veteran was not diagnosed as having prostate cancer (adenocarcinoma of the prostate) until February 2007, decades after his separation from service. While the Veteran is competent to report having experienced symptoms, such as penile drip, he is not competent to provide a diagnosis in this case or determine that any symptoms were manifestations of prostate cancer. The issue is medically complex, as it requires specialized education, and the interpretation of complicated diagnostic medical testing. Id. Further, the June 2014 VA examiner opined that the Veteran's cancer was not related to service, including the history of gonorrhea and penile drip. The rationale was that no evidence indicated that gonorrhea caused prostate cancer and that there was no evidence of a chronic prostate neoplastic condition that began and persisted since service. In this regard, the examiner found it salient that an October 2005 private biopsy was negative for adenocarcinoma. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his prostate cancer is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized education, and knowledge of pathology and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, at 1377 n4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion. Ionizing Radiation Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected specific to radiation-exposed veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). First, a "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined in 38 C.F.R. § 3.309(d)(3)(i), (ii). Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia) , thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease) , cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d)(2). Second, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in section 3.311(b)(2) become manifest 5 years or more after exposure. Third, and notwithstanding the above, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether his disability is otherwise the result of active service. As noted above, the Veteran was assessed as having prostate cancer in 2007. In support of his claim, he submitted a Radiation Risk Activity Information Sheet (VA Form RRAIS). In the form, he claimed exposure to ionizing radiation from September 1962 through June 1964. He specifically outlined that he was in the area of a nuclear explosion test on February 13, 1963. There are no service records documenting any exposure to ionizing radiation. In December 2019, the Department of the Army, Army Dosimetry Center (ADC) advised VA that it had researched the Veteran's reported exposure to ionizing radiation. It was unable to locate any records of any exposure to ionizing radiation. In April 2020, the Board remanded the matter to develop the claim under the provisions of 38 C.F.R. § 3.311, pertaining to radiogenic diseases. Following the Board's remand, VA obtained the applicable dose estimate from the Under Secretary for Health, and then referred the case to the Under Secretary for Benefits for consideration. See 38 C.F.R. § 3.311(a), (b)(1). In December 2020, a Health Physicist from Under Secretary for Health responded with a dose estimate of 1.5 rem (total effective dose equivalent) based upon the Veteran's 3 years of service. The opinion notes that below 10 rem, the observed effects of radiation effects in people were not statistically different from zero. The Under Secretary found it unlikely that prostate cancer was caused by exposure to ionizing radiation in service. In December 2020, the Under Secretary for Benefits issued an advisory opinion, concluding that there was no reasonable possibility that prostate cancer was attributable to ionizing radiation exposure during service. In terms of rationale, the Under Secretary noted that that prostate cancer was diagnosed about 45 years following the alleged exposure, and that the Veteran was a smoker with a family history of prostate cancer. The Under Secretary considered the dose estimate in offering this opinion. (Continued on the next page) Entitlement to service connection for prostate cancer as due to exposure to ionizing radiation is not established. It is not until decades after the veteran's discharge that he incurred prostate cancer. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, although it is conceded that the Veteran was exposed to some level ionizing radiation in service and dose estimates were obtained, the opinions of record reflect that it is unlikely that prostate cancer is attributable to this exposure. It has been determined based upon the highest dose estimates that it is unlikely that the Veteran's prostate cancer is related to exposure to ionizing radiation. Thus, although the Veteran may have a radiogenic disease, the evidence demonstrates it is unlikely due to his reported exposure. As for establishing service connection on a presumptive basis, the Board notes that while adenocarcinoma of the prostate is considered a radiogenic disease as "any other cancer," it is not among the chronic diseases subject to presumptive connection or as due to exposure to ionizing radiation. See 38 C.F.R. §§ 3.309(d), 3.311(b)(2)(i)-(xxiv). Moreover, the Veteran did not participate in a radiation-risk activity and is not considered to be a radiation-exposed veteran. 38 C.F.R. § 3.309(d)(3)(i), (ii). Accordingly, for these reasons, the Board finds that the preponderance of the evidence is against the claim and it must be denied. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.