Citation Nr: 22017490 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-01 800 DATE: March 25, 2022 ORDER The claim of entitlement to service connection for a prostate cancer disability is granted. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The evidence of record is for a finding that the Veteran's prostate cancer disability was caused by his active service. CONCLUSION OF LAW The criteria for service connection for a prostate cancer disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from July 1975 to September 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in September 2015. A statement of the case (SOC) was issued in November 2015, and the Veteran perfected his appeal in January 2016. A supplementary statement of the case (SSOC) was issued in September 2019. This case was previously before the Board in June 2020. The Board denied the Veteran's claims. The Veteran appealed the claims to the United States Court of Appeals for Veterans Claims (CAVC). Through an August 2021 decision, the relevant portions of the June 2020 Board decision were vacated and the claims remanded for the Board to provide an adequate statement of the reasons and bases for the Board decision. 1. Prostate cancer The Veteran contends that he is entitled to service connection for a prostate cancer disability. He asserts that he incurred prostate cancer as a result of exposure to herbicides, such as Agent Orange, during active service, specifically as due to his work at Fort Drum in 1976. Under applicable VA law, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection, the following must be shown: (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). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21) and (24); 38 C.F.R. § 3.6 (a) and (d). In general, the relevant law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The specific statute pertaining to claimed exposure to Agent Orange is 38 U.S.C. § 1116 (2002). Regulations issued pursuant thereto previously provided that, if a veteran who served on active duty in Vietnam during the Vietnam era developed one of the diseases which is presumed to have resulted from exposure to herbicides, the veteran would then be presumed to have been exposed to Agent Orange or similar herbicide. See McCartt v. West, 12 Vet. App. 164 (1999). These regulations have also stipulated the diseases for which service connection could be presumed due to an association with exposure to herbicide agents. These disease include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease (including acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemia (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). Ischemic heart disease associated with herbicide agent exposure in service for VA presumptive service connection purposes does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). In December 2001, the President signed into law the Veterans Education and Benefits Expansion Act of 2001 (VEBEA), Public Law No. 107-103, 115 Stat. 976 (2001). Among other things, the VEBEA removed the 30-year limitation on presumptive service connection for respiratory cancers due to herbicide exposure; added Type 2 diabetes mellitus to the list of presumptive diseases based upon herbicide exposure (codifying a VA regulation which had been in effect since July 2001, see 66 Fed. Reg. 23,166-169 (May 2, 2001)); and provided a presumption of exposure to herbicides for all veterans who served in Vietnam during the Vietnam Era, not just those who have a disease on the presumptive list provided in 38 U.S.C. § 1116 (a)(2) and 38 C.F.R. § 3.309 (e) (reversing the Court's holding in McCartt, supra). These statutory provisions became effective on the date of enactment, December 27, 2001. 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, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C. § 1116 (West 2002); Veterans Education and Benefits Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001); 38 C.F.R. § 3.307 (a)(6)(ii) (as amended by 67 Fed. Reg. 67792 (Nov. 7, 2002)). Notwithstanding the foregoing presumptive provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In the present case, the Veteran's VA medical treatment records reflect that he was diagnosed with prostate cancer in March 2008. Thus, the Veteran fulfills the first requirement of service connection a current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The next question in this case is whether the Veteran had an incurrence or aggravation of prostate cancer during his active service. 38C.F.R. §3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board has had the opportunity to conduct legal research on cases involving alleged herbicide exposure at Fort Drum. The Board has found particularly pertinent information in the case of Malinowski v. Gibson, No. 13-0016, WL 2768851 (June 19, 2014), which involved the case of another Veteran who was stationed at Fort Drum in 1974. In pertinent part, this non-precedential Memorandum Decision cited the following evidence which had been presented in support of the claim: According to a July 1981 report prepared by the Chemical Systems Laboratory at the Aberdeen Proving Ground, chemicals found in Agent Orange were discovered at Fort Drum in five-gallon metal cans stored in an "unheated wooden frame building with a wooden floor." That rustic facility did "not meet present day requirements for storage of pesticides." Another building was undergoing renovations so that it could be used to "properly store" herbicides and other pesticides. The report also revealed that at Fort Drum in 1961 Dow Chemical Company "tested an experimental defoliant" and that from the 1950s through the early 1970s, herbicides were used "on range impact areas... to improve the line of vision from observation points to target impact areas." In February 1984, an official at the U.S. Army Toxic and Hazardous Materials Agency wrote that an "exploratory survey at [Fort Drum] has been designed to determine whether or not site-specific contaminants are migrating or have the potential to migrate beyond the installation's boundaries." The official stated that samples collected for the survey would be tested for the presence of chemicals associated with Agent Orange because "this particular herbicide was used on the range impact areas to improve the line of vision from observation points to target impact areas... during the 1960s through the early 1970s." The Board notes that it may take judicial notice of evidence not subject to reasonable dispute - particularly if favorable to the Veteran. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991). The evidence cited in the Malinowski case raises significant doubt regarding whether herbicides were stored and used at Fort Drum after 1959 and whether their impact was short-lived. As noted by the Court in Malinowski, the 1984 report by the U.S. Army Toxic and Hazardous Materials Agency, investigating whether Agent Orange sprayed onto vegetation at Fort Drum in the 1960s and 1970s still may have been present in the surrounding environment, "strongly suggest[ed] that experts, at least in 1984, believed that Agent Orange may remain extant and hazardous a decade or more after it was applied." Notably, the Malinowski Court also noted that a June 2004 Board decision had conceded that a Veteran was exposed to herbicides at Fort Drum in 1962 by relying on the 1984 report by the U.S. Army Toxic and Hazardous Materials Agency. That Board decision further elaborated that the February 1984 letter from the Department of the Army, U.S. Army Toxic and Hazardous Materials Agency stated that herbicide 2, 4, 5-T was utilized during the 1960s through the early 1970s at Fort Drum to improve the line of vision from observation points to target impact areas as well as to control brush along roads in the main impact area. Notably, 2, 4, 5-T and its contaminant TCDD is listed as a qualifying herbicide under 38 U.S.C. § 1116 (a)(4) and 38 C.F.R. § 3.307 (a)(6)(i). In a December 2016 opinion, a private physician, Dr. JC, found that it is more likely than not that there was the presence of Agent Orange, dioxin, or any other tactical herbicides in the environment of Fort Drum during the time that the Veteran was there. He also stated that it is as likely as not that the soil the Veteran specifically worked in contained Agent Orange, dioxin, or any other tactical herbicides from post-application. Dr. JC noted that the Veteran reports smoking and eating without adequate hygiene practices to prevent exposure by ingestion of contaminants that were in the soil. Dr. JC opined that data supports estimates that dioxin from contaminated soil leads to uptake consisting of 95% from soil ingestion, 3% from dermal exposure, and 2% from inhalation of soil particles. Thus, Dr. JC found that it is as likely as not that there was a means and route for exposure to AO dioxin or any other tactical herbicides; and it is as likely as not that Veteran was exposed to Agent Orange, dioxin, or other tactical herbicides during his military service at Fort Drum, NY. In light of the February 1984 letter from the Department of the Army, U.S. Army Toxic and Hazardous Materials Agency stating that the herbicide 2, 4, 5-T was utilized during the 1960s through the early 1970s at Fort Drum, the private medical opinion of record, along with this Veteran's dates and locations of service, the Board concedes that the Veteran was exposed to herbicides during service, while stationed at Fort Drum. Prostate cancer is one of the disabilities that are presumed to be related to exposure to herbicides. 38 C.F.R. § 3.309 (e) (2017). Accordingly, the Board finds that entitlement to service connection for prostate cancer is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The present decision is based on the record and the research conducted in this appeal and carries no precedential weight as to any other pending cases. 38 C.F.R. § 20.1303. REASONS FOR REMAND 1. TDIU The Board granted service-connection for prostate cancer. The issue of entitlement to a TDIU must be deferred pending the RO assigning a rating for the now service-connected prostate cancer. In other words, entitlement to TDIU is dependent upon the processing of the Veteran's granted service-connection claim. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding how to substantiate his claim for entitlement to a TDIU and request that he submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. After issuance of a rating for prostate cancer, readjudicate the TDIU issue. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.