Citation Nr: 21041730 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 13-25 519 DATE: July 10, 2021 ORDER Entitlement to service connection for prostate condition, to include residuals of prostate cancer, benign prostatic hypertrophy (BPH) and prostatitis, is denied. REMANDED Prior to March 1, 2016, entitlement to a rating in excess of 10 percent disabling; and effective May 1, 2017, entitlement to a rating in excess of 30 percent disabling for left knee disability is remanded. Prior to January 7, 2019, entitlement to a rating in excess of 10 percent disabling; and effective March 1, 2020, entitlement to a rating in excess of 30 percent disabling for right knee disability is remanded. FINDING OF FACT The Veteran's prostate condition, to include prostate cancer, did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service, to include as due to herbicide or jet fuel exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a prostate condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to May 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans Affairs Regional Office (RO). In June 2016, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. This case was remanded by the Board in November 2016. During the pendency of the appeal, an April 2017 rating decision granted an increased rating for left TKA (previously rated as traumatic arthritis with chondromalacia) of 30 percent, effective May 1, 2017. Thereafter, in an October 2018 decision, the Board denied entitlement to service connection for a prostate condition, entitlement to increased ratings for right and left knee disabilities, and entitlement to a compensable rating for bilateral hearing loss. In addition, the Board remanded the issues of entitlement to service connection for bilateral hand condition and entitlement to a total rating based on individual unemployability (TDIU). The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court vacated the portion of the Board's October 2018 decision which denied service connection for prostate cancer and increased ratings for the left and right knee disabilities, and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). With regard to entitlement to service connection for prostate condition, the JMR found the Board erred by failing to recognize instances where VA medical records suggested the existence of outstanding evidence contained in VA Vista Imaging database that may not have been not associated with the claims file. In addition, with regard to the Board's conclusion that presumption of exposure to herbicides was inapplicable, the Court found that the Board failed to provide adequate statement of reasons or bases by failing to address whether the Veteran was actually exposed to herbicides during his deployment to Korea. With regard to the right and left knee increased rating claims, the Court found the Board did not provide adequate reasons or bases for finding the January 2017 VA examination adequately satisfied VA's duty to assist. The Court noted that during the examination, the Veteran reported increased flare-ups of pain and swelling in both knees after stooping or bending, with limitations in standing, walking and driving due to knee pain with repeated-use over time. While the examiner found that it was not possible to describe any further limitation of functional ability in terms of ROM, the Court found the reasons provided inadequate. The Court further found the Board erred by failing to provide an adequate statement of reasons or bases in determining that separate ratings were not warranted for the right and left knee disabilities based on instability. Following issuance of the JMR, the Board remanded this case in December 2019 and instructed the Agency of Original Jurisdiction (AOJ) to obtain all VA medical records not associated with the claims file, including records located in the VA Vista Imaging database. The Board additionally instructed the AOJ to obtain a VA knee examination. The Board notes that the requested VA medical records have been obtained and associated with the claims file. Additionally, the requested VA knee examinations were obtained in February 2020 and March 2021. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). With regard to the claims for bilateral hand condition and TDIU, the Board notes that an April 2020 rating decision granted entitlement to service connection for bilateral carpal tunnel syndrome (claimed as bilateral hand arthritis), effective April 24, 2009. The rating decision additionally granted entitlement to a TDIU, effective April 24, 2009. Therefore, as the AOJ granted the benefits sought on appeal, those issues are no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). In April 2021, a rating decision granted an increased rating for status post right TKA (previously rated as traumatic arthritis with chondromalacia) of 30 percent, effective March 1, 2020. As this rating is not the maximum allowable, that issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board notes that additional VA treatment records were received following the last adjudication by the AOJ in the April 2021 supplemental statement of the case (SSOC). The Board has reviewed these records and observes that they are not pertinent to the service connection issue decided below. They are pertinent to the right and left knee increased rating claims, which are addressed in the Remand section below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Prostate Condition The Veteran seeks entitlement to service connection for a prostate condition, to include residuals of prostate cancer, BPH and prostatitis. Specifically, the Veteran asserts that his prostate condition was caused by exposure to jet fuel during service. Alternatively, he asserts that his prostate cancer is secondary to herbicide exposure while he was stationed in Korea. In this regard, military personnel records show the Veteran served in Korea from July 1980 to January 1981. The evidence of record includes service treatment records (STRs) showing the Veteran was treated for a slightly enlarged prostate with symptoms of pain in July 1975. Post-service medical records include a February 2009 VA medical record showing the Veteran reported an enlarged prostate dating back to the late 1990's, which had become more enlarged since that time. He further reported being assessed with prostatitis at that time. In addition, he reported having an elevated PSA level in the late 1990's and that he could not recall his PSA level decreasing below level 4 since that time. Another February 2009 VA medical record noted a history of an enlarged prostate, elevated PSA levels and a current diagnosis of prostatitis. See VA Medical Records Received May 2016. A July 2009 VA prostate biopsy revealed a diagnosis for adenocarcinoma. See VA Medical Records Received July 2009. A September 2009 urology record noted an elevated PSA value since 1997. The Veteran reported being followed by a urologist and that a biopsy was planned for the year prior, but that he became unable to pay for his biopsy. The Veteran was diagnosed with prostate cancer. See VA Medical Records Received October 2020. The Veteran also underwent a VA examination in September 2009. The examiner noted a history of prostatitis and adenocarcinoma of the prostate. The examiner also noted a documented episode of prostatitis in 1975 during service and another episode in 1996. Accordingly, the examiner found no continuity of the condition since service based on a 21-year absence of prostatitis, and opined that it was not at least as likely that the Veteran's current prostate condition was related to the single episode of prostatitis during service. Shortly thereafter, in September 2009, the Veteran underwent a radical retropubic prostatectomy with bilateral peripheral lymph node dissection later that month. A September 2009 post-surgical report noted a diagnosis for prostate cancer. See VA Medical Records Received October 2020. In his May 2013 VA Form 9, Substantive Appeal, the Veteran asserted that he was exposed to herbicides while stationed along the DMZ in Korea. Specifically, the Veteran asserted his belief that herbicide chemicals sprayed between 1968 and 1971 were still active while he was stationed in Korea and that he was thereby exposed to active chemical agents. The Veteran further asserted exposure to jet fuel while inspecting and loading aircraft during his assignment as a jump master instructor. During his June 2016 Board hearing, the Veteran testified that he believed his prostate cancer resulted from exposure to jet fuel due to his MOS as a jumpmaster which required him to be constantly around aircraft. Specifically, he asserted being exposed to JP-4 jet fuel which had some of the same components of Agent Orange. The Veteran also testified that he did not serve in Vietnam. The Veteran underwent another VA examination in January 2017. He reported being seen for prostatitis in approximately 1973/1974, and that he was treated with antibiotics. The Veteran further reported being treated for prostatitis over 20 times during the following 30 years. In addition, he reported an elevated PSA level around 1997 at which time he was treated for prostatitis. He related his prostate problems to jet fuel exposure during service. The examiner opined that the prostate cancer was "less likely than not (less than 50% probability)" etiologically related to the in-service prostate condition. The examiner further opined that the residuals of prostate cancer were "less likely than not (less than 50% probability)" related to service including due to exposure to JP-4 jet fuel. In support of her opinion, the examiner initially found that the medical evidence did not support a 2009 diagnosis of either prostatitis or BPH. Instead, the examiner found the Veteran had a diagnosis of prostate cancer at that time as shown by elevated PSA levels and lower urinary tract symptoms. The examiner further noted that the STRs only noted one incidence of prostatitis in July 1975, and further noted ruled-out prostatitis in June 1977 and April 1991. The examiner additionally found that medical literature did not support an etiological association between prostate cancer and/or prostatitis and exposure to jet fuel, including JP-4, or an association between prostatitis and the development of cancer. Instead, the examiner noted multiple occasions the Veteran was treated for STDs during service, and noted an etiological link between STDs and prostatitis. Thus, the examiner determined that the in-service prostatitis was etiologically related to his STDs and not jet fuel exposure. Lastly, in February 2017, the Veteran submitted medical literature on the health effects of jet fuel including JP-4 in animals, including mice and rats. The article noted that no studies were located regarding cancer in humans in relationship to exposure to JP-4, including inhalation, oral, dermal, or chronic-duration exposure. Additionally, the medical literature noted that the current animal data regarding the carcinogenicity of JP-4 was equivocal and that the evidence was insufficient to draw conclusions regarding the carcinogenic potential of JP-4 in humans. After a review of the evidence of record, the Board finds that service connection for a prostate condition is not warranted. With regard to the Veteran's assertion that his prostate condition is secondary to herbicide exposure along the DMZ in Korea, the Board notes that VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). While the Veteran served during the Vietnam Era, the evidence does not show that he served in the Republic of Vietnam. Importantly, he denied having served in Vietnam. Turning to the Veteran's assertion that he was exposed to herbicides while he was stationed in Korea, regulations provide that a veteran is presumed to have been exposed to herbicides in Korea if the evidence shows he was in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied between April 1, 1968, and August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv). Here, the evidence does not show the Veteran served in Korea between April 1, 1968, and August 31, 1971. As such, the presumptive provision does not apply. The Board has considered the Veteran's lay statements that herbicide agents were still active at the time he served in Korea. In this regard, VA has also considered the potential risk of exposure to the residuals of herbicide previously sprayed. In its proposed rule published in July 2009, VA indicated that the Department of Defense had identified the time period when herbicides were applied near the DMZ to be between April 1968 and July 1969. See 74 Fed. Reg. 36,640. In its final rule published in January 2011, VA extended the presumed exposure period to August 31, 1971 (2 years after herbicide spray had been ceased), to account for potential risk of exposure to residuals of herbicide previously applied in that area. See 76 Fed. Reg. 4245. The presumptive time period has not been extended. As such, to concede exposure to herbicide agents, the Board needs evidence of actual exposure. Here, service personnel records show he was stationed in Korea between July 1980 to January 1981; 9 years after the presumptive period that considers potential risk of exposure to herbicide residuals. Importantly, the Veteran has not stated that he witnessed herbicide agents being used. Instead, he merely asserts that herbicide residuals were still active 11 years following the time period when herbicides were applied near Korea DMZ in July 1969. In this regard, the Veteran does not have the requisite chemical knowledge, nor has he asserted any specialized ability to detect herbicide agents in the environment. Accordingly, the Board finds the Veteran's assertions of exposure speculative in nature, and of no probative value. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). As such, absent other evidence specifically linking him to actual exposure to herbicide agents, the Board finds the Veteran's assertion that he might have been exposed to residuals of herbicides due to his service in the Korea DMZ after the statutory presumptive exposure period insufficient to establish that he was actually exposed to herbicide agents. Turning to the Veteran's assertion that his prostate condition is otherwise related to service, during the pendency of the appeal, he was diagnosed with prostate cancer and underwent a radical retropubic prostatectomy with bilateral peripheral lymph node dissection. Therefore, the remaining question on appeal is whether his diagnosed prostate cancer is otherwise related to service. In this regard, the Board finds the January 2017 VA examination the most probative evidence of record. The examiner opined that the Veteran's prostate cancer was "less likely than not (less than 50% probability)" etiologically related to service, including as due to JP-4 jet fuel exposure or related to his in-service treatment for prostatitis. Importantly, the examiner found the Veteran did not have a diagnosis for either prostatitis or BPH in 2009. Instead, the examiner concluded that the 2009 prostate condition was symptomatic of his prostate cancer. Moreover, the examiner noted that prostatitis did not cause prostate cancer, as supported by the medical literature. With regard to exposure to JP-4 jet fuel, the examiner also noted that the medical literature did not support any such etiological association. The examiner additionally found that the in-service diagnosis for prostatitis was related to his acquired STDs and not environmental jet fuel exposure. The Board finds that the examiner provided a detailed discussion of the medical evidence, the medical conclusions reached, and the opinions offered, and she provided adequate rationales for such opinions. The Board recognizes the Veteran's submitted medical literature regarding various jet fuels, to include JP-4, and adverse health effects. However, the medical literature noted no medical studies were located regarding an etiological link between JP-4 exposure and cancer in humans. The submitted medical literature additionally concluded that the current animal data was equivocal and evidence insufficient to draw conclusions regarding the carcinogenic potential of JP-4 in humans. Thus, the submitted medical literature does not support the Veteran's assertion that his exposure to JP-4 caused his prostate cancer. The Board further recognizes the Veteran's lay statements linking the onset of his prostate condition to jet fuel exposure. However, without evidence showing he has medical training or expertise, he cannot competently provide a medical nexus opinion between a current diagnosis, residuals of prostate cancer, and an in-service event such as jet fuel exposure. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, to the extent he may be competent to opine as to medical etiology, the Board finds the Veteran's lay assertions in the present case outweighed by the January 2017 VA medical examiner's opinion, who determined that there was no nexus between his prostate condition and service. The examiner has training, knowledge, and expertise on which she relied to form her opinions, and she provided persuasive rationales for them. The Board further finds the January 2017 VA examination report bolstered by the negative September 2009 VA examination report. Importantly, there is no medical evidence to the contrary. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a prostate condition. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND Increased Ratings Right and Left Knee As noted above, updated VA medical records has been added to the claims file following the last adjudication by the AOJ in the April 2021 supplemental statement of the case (SSOC). These records were added prior to the case being certified to the Board. A review of those records show they are relevant to the increased rating claims on appeal. The Board further observes that the Veteran has not waived AOJ consideration of the evidence associated with the record after the July 2019 SSOC. Given that the he has not waived his right to have new evidence reviewed in the first instance, a remand is necessary. 38 C.F.R. § 19.37(b). The matters are REMANDED for the following action: The AOJ must readjudicate the issues on appeal based on the current evidence of record. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.