Citation Nr: 22040196 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-20 555 DATE: July 13, 2022 ORDER Entitlement to service connection for a heart disability is dismissed. Entitlement to service connection for prostate cancer is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. FINDINGS OF FACT 1. In correspondence received in March 2022, prior to the promulgation of a decision in the appeal, the Veteran, through his attorney, indicated that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for a heart disability. 2. The evidence is in equipoise as to whether the Veteran's prostate cancer was caused by asbestos exposure during active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a heart disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for a heart disability, prostate cancer, and diabetes mellitus, type II. In February 2022, the Veteran testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for a heart disability is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55(a). In the present case, in correspondence received in March 2022, the Veteran, through his attorney, indicated that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for a heart disability. The Board finds that the withdrawal was in writing, included the name of the appellant, the file number, and a clear statement that the appeal was withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). Thus, the criteria for a withdrawal have been met and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Entitlement to service connection for prostate cancer is granted. In this case, the Board notes that the Veteran has raised different theories with regard to the etiology of his prostate cancer. However, as the instant grant is based on the Veteran's exposure to asbestos, any evidence related to a theory of service connection as due to his claimed exposure to herbicides will not be discussed herein. 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). In addition, certain chronic diseases, including malignant tumors, 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. 38U.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); 38C.F.R. §§3.303, 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Service treatment records (STRs) are negative for complaints, observations, or treatment regarding prostate cancer or associated symptomatology. Private clinical records noted a July 2002 diagnosis of adenocarcinoma of the prostate gland. See private clinical records received in January 2013 and February 2014. In support of his claim, the Veteran submitted a journal article indicating that there was a causal relationship between asbestos exposure among sailors and a subsequent increased risk of asbestos-related diseases. See journal article received in March 2022. The Veteran also submitted correspondence, with several enclosures, from the Vice Admiral of the U.S. Navy dated in January 1979 indicating that Navy ships had several types of asbestos containing materials installed; however, thermal insulation for machinery, equipment, and piping systems was the major application of asbestos. See correspondence received in March 2022. Additionally, the Veteran submitted correspondence from the Acting Comptroller General dated in October 1979 indicating that asbestos was widely used aboard Navy ships, particularly in thermal insulation, prior to 1975; however, in October 1975 the Navy issued a policy to eliminate asbestos as an acceptable material for thermal insulation. See Navy's Efforts to Protect Workers from Asbestos Exposure received in March 2022. At the February 2022 Board hearing, noted above, the Veteran testified that he had been exposed to asbestos while aboard the USS Hunley. He testified that as a draftsman, he often came in contact with damaged pipes when drafting repair orders and drawing illustrations. He testified that on one occasion the insulation surrounding a pipe in his shop was torn out and replaced leaving dust on the carpet and file cabinets, which he cleaned up without protective gear. The Veteran also testified that 2 or 3 pipes ran along the wall next to the top bunk where he slept. He indicated that the pipes were cracked, brittle, and often dusty. He further testified that his general quarters station was firefighting which required him to wear a flame retardant coat and gloves, which he presumed were made with asbestos. See February 2022 Transcript of Hearing, pages 3-9. In correspondence dated in February 2022, C.K., PhD, MD indicated that the Veteran's prostate cancer was at least as likely as not causally related to asbestos exposure during active duty. The physician provided a detailed opinion, stating that service and civilian medical records were thoroughly reviewed. The physician noted that U.S. Navy ships of the Veteran's era were well-documented to have had asbestos materials in usage throughout and that the Veteran's statements describing work duties and sleeping quarters were entirely consistent with asbestos exposure. He noted that there were over 30 separate epidemiologic studies demonstrating a link between asbestos exposure and higher rates of prostate cancer. He also noted that the Veteran had no meaningful personal risk factors for prostate cancer and was diagnosed approximately 16 years younger than average, which was consistent with exposure to a carcinogenic trigger. He went on to state that inhaled asbestos fibers enter the bloodstream and end up in several target organs, including the prostate gland, and that the permanence of imbedded asbestos fibers in target tissues yielded a latency for asbestos-related cancers which was notoriously long, in the 40-year range, which was consistent with the Veteran's prostate cancer latency of 31 years. See correspondence from C.K., PhD, MD received in March 2022. After a review of the evidence, the Board finds that service connection for prostate cancer is warranted. With regard to the first element of a service connection claim, the Board finds that the Veteran has a current diagnosis of prostate cancer. Private clinical records, noted above, indicated a diagnosis of adenocarcinoma of the prostate gland. See private clinical records received in January 2013 and February 2014. In addressing the second element, the Board finds that the evidence is at least in equipoise that the Veteran was exposed to asbestos during active duty. A review of the Veteran's service personnel records document that the Veteran served aboard the USS Hunley from August 1971 to September 1972. The Board acknowledges the documents submitted by the Veteran indicating that during the time the Veteran was in active service, asbestos was known to exist on Naval vessels, and it is therefore conceded that the Veteran had some degree of asbestos exposure during active service. The Board also assigns probative value to the Veteran's hearing testimony regarding his exposure to asbestos during active duty. Having had the opportunity to observe his demeanor at the hearing, the Board finds his testimony to be credible. Although there is some question regarding the Veteran's competency to identify the dust to which he was exposed as asbestos, when coupled with the additional evidence of record, the Board finds a sufficient basis upon which to conclude that the second element of service connection is met. With respect to the third element, the nexus requirement, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's prostate cancer is causally related to in-service asbestos exposure. In that regard, the Board assigns high probative value to the February 2022 positive nexus opinion indicating that the Veteran's prostate cancer was at least as likely as not a result of his in-service asbestos exposure, as the opinion was based on a thorough review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale. There is no medical opinion evidence to the contrary. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in relative equipoise as to the Veteran's prostate cancer and the causal relation between the Veteran's disability and the in-service asbestos exposure. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for prostate cancer. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran contends that he developed diabetes mellitus, type II as a result of herbicide exposure while serving aboard the USS Hunley in 1971 and 1972, which was stationed in Guam. Alternatively, the Veteran contends that his diabetes is the result of asbestos exposure during active duty. VA and private treatment records note a diagnosis of diabetes mellitus, type II. As diabetes mellitus is one of the diseases presumed to be due to in-service exposure to herbicide agents, the Veteran need only establish that he either directly was exposed to herbicides or is presumed to have been exposed to herbicides to be entitled to service connection. 38 C.F.R. § 3.307(a)(6)(iii), 38 C.F.R. § 3.309(e). The available record shows that the Veteran did not serve in the Republic of Vietnam during the Vietnam era, nor did he serve in a unit which the Department of Defense has identified as operating in or near the Korean DMZ in an area in which herbicides are known to have been applied. Thus, he is not entitled to the legal presumption of herbicide agent exposure. 38 C.F.R. § 3.307(a). The presumptive regulations, however, do not preclude a claimant from establishing service connection based on proof of actual exposure. In support of his claim, the Veteran submitted a June 2009 VA decision for another Veteran who served aboard the USS Hunley at Guam in 1971 and 1972, in which the RO granted service connection for diabetes mellitus based on herbicide exposure. The Veteran also submitted GAO reports and articles indicating the presence of hazardous waste and other chemicals in Guam. See June 2009 rating decision, reports, and articles received in January 2013. The Board notes that the claims file contains an undated correspondence purportedly from the Guam Project Manager who was responsible for military cleanup sites in Guam since 1997 which notes negative findings regarding the use, storage, or testing of tactical herbicides, including Agent Orange, in Guam. See correspondence received in November 2013. In a Formal Finding dated in June 2014, it was determined that the information required to corroborate exposure to Agent Orange or other herbicides as claimed by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The Board notes that there has been a regulatory amendment removing the reference to the JSRRC in 38 C.F.R. § 3.156(c)(2). The Federal Register explained that the JSRRC no longer exists, but that the military records themselves previously researched by the JSRRC remain available for research by VA as an official source of records. At the February 2022 Board hearing, noted above, the Veteran, through his attorney, testified that although his military duties confined him to the USS Hunley, he did leave the ship and go onto the island of Guam for meals and to go to the beach. See February 2022 Transcript of Hearing, page 14. In light of the testimony presented at the February 2022 Board hearing indicating that the Veteran was present on the island of Guam during 1971 and 1972 on occasion for meals and to go to the beach, as well as the June 2009 rating decision for another Veteran granting service connection for diabetes mellitus based on herbicide exposure aboard the USS Hunley in Guam during the same timeframe and the GAO reports and articles indicating the presence of hazardous waste and other chemicals on the island, the Board finds that the Veteran has submitted sufficient information regarding his claimed herbicide agent exposure on Guam to trigger VA's duty to undertake efforts to verify his reports. Therefore, remand is warranted to undertake efforts to obtain verification of the Veteran's claimed exposure. (Continued on the next page) Accordingly, the matter is REMANDED for the following action: 1. Undertake efforts to obtain information regarding the claimed use of herbicide agents relevant to the Veteran's period of service aboard the USS Hunley at Guam; specifically, from August 1971 to September 1972. All requests and relevant documentation should be associated with the Veteran's claims file. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, Associate 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.