Citation Nr: 24001029 Decision Date: 01/05/24 Archive Date: 01/05/24 DOCKET NO. 14-02 713 DATE: January 5, 2024 ORDER Entitlement to service connection to prostate cancer is granted. REMANDED Entitlement to service connection for granulomatous disease, to include as secondary to the service-connected otitis media, is remanded. Entitlement to service connection for coronary artery disease is remanded. FINDING OF FACT The competent and credible evidence of record persuasively establishes a finding that the prostate cancer is related to toxic exposures while in service. CONCLUSION OF LAW The criteria for entitlement to service connection to prostate cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) in an April 2019 hearing. These issues were previously before the Board in September 2019 when they were denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans' Claims (Court). In an April 2020 Joint Motion for Remand (JMR), the parties agreed that the Board erred in determining that VA examinations were not warranted. These issues returned to the Board in September 2020 when they were remanded for further development. The case has since been returned to the Board for appellate review. In February 2023, the Board sent a letter to the Veteran informing him that the April 2019 VLJ was no longer available, and provided him with an opportunity to present testimony at a new hearing before a different VLJ. The Veteran responded that he did wish to appear at another Board hearing, and he testified before the undersigned VLJ in September 2023. 1. Entitlement to service connection to prostate cancer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran alleges that prostate cancer is related to in-service toxins exposures. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent a VA examination in October 2021 where the examiner identified a diagnosis of prostate cancer, with an onset of 2004. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event, injury, or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's service treatment records (STRs) are silent for any complaints of or treatment for prostate cancer. He specifically denied any tumors, growths, cysts, cancer, or rectal disease on reports of medical history at entry to and separation from service, and corresponding reports of medical examination found his anus and rectum to be normal. The Veteran has rather long asserted that the prostate cancer is related to various toxic environmental exposures during service while stationed at Fort Lewis and Fort Ord, to include asbestos, Poly-Fluoroalkyl Substances (PFAS) commonly used in firefighting capacities, and various chemicals used to create smoke in smoke grenades, including, but not limited to, zinc chloride, chlorosulfuric acid, titanium tetrachloride, phosphorus, and sulfonic acid. At the April 2019 and September 2023 Board hearings, he testified that that during training, they were in the field all day where they were exposed to contaminated soil, water, and air, without any protective gear, and had no opportunities to clean themselves until the end of the night. The Veteran has submitted various articles throughout the course of this nearly 12-year appeal attesting to the use of these chemicals, and their negative health effects, specifically at Fort Ord. Specifically, an article submitted in April 2016 noted that that the entirety of Fort Ord from fence line to fence line was listed on the National Priorities List for environmental cleanup, with extensive groundwater contamination. The Veteran has also submitted several photographs showing copious amounts of colored smoke on the field, including photos allegedly of himself. VA has made several attempts to corroborate these assertions, with little to no success. A November 2021 Joint Services Records Research Center (JSRRC) memorandum indicated that they did not research exposure to environmental toxins or other substances other than those as mandated by law. A singular attempt was made to contact the Army Public Health Center by letter, but there was no response. This will be discussed at greater length in the remand section below. In April 2022, the Veteran's representative did submit a January 2020 VA memorandum which indicated that while long term health effects from PFAS exposure is not yet known, it was commonly used as a key ingredient in firefighting foams for training exercises on military bases. A careful review of the Veteran's military personnel records confirms that his military occupational specialty (MOS) was "Inf Ind Fire Crmn," and that he was stationed at Forts Lewis and Ord during service. Thus, affording the Veteran the benefit of the doubt, the Board finds his statements competent as they are capable of lay observation. 38?U.S.C. §?1154(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Further, these statements have been corroborated by the medical articles and military personnel records. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the probative value of a witness statement may be affected by inconsistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record does support a finding that the prostate cancer is related to active service. The Veteran submitted a September 2015 private medical opinion. That examiner indicated that they had reviewed the Veteran's records, and concluded that there might be a causal link between the prostate cancer and his active-duty service. They explained that he otherwise maintained a very healthy lifestyle by growing vegetables and eating healthy. The Veteran underwent a VA examination in October 2021 where the examiner concluded that the prostate cancer was at least as likely as not related to service as his records showed he served during the Vietnam Era, and that he served from 1970 and 1971, which implied boots on the ground in Vietnam. The RO obtained an addendum opinion in March 2022, as that examiner incorrectly concluded that the Veteran had any service in Vietnam. In the addendum, they explained that there was no causative relationship between prostate cancer and toxic substances exposure to the chemicals in tear gas, and a smoke screen, including chlorosulfonic acid, titanium tetrachloride, zinc chloride and impacts. The Veteran's representative submitted an October 2023 private medical opinion in support of the claim. This examiner explained that during the Veteran's time at Forts Ord and Lewis, the fire suppressant Aqueous Film Forming foam was heavily used on military bases, and discontinued in 2015 when it came to be understood to be carcinogenic and environmentally catastrophic as it contains PFAS, also known as forever chemicals. They noted that both Forts Ord and Lewis are on the EPA's list of US military bases where contamination of PFAS exceeds acceptable levels posing health risks, and that they were also on the Superfund National Priorities List. The examiner indicated that the Veteran was diagnosed with prostate cancer in 2010, and that he has no personal risk for prostate cancer, including family history, rare genetic disorders, or any other known exposure. They explained that PFAs are classified as human carcinogens, which included a high risk of prostate cancer. The examiner concluded that it was their opinion with a high degree of confidence, that it was at least as likely as not that the prostate cancer was related to the toxic exposures at Forts Ord and Lewis. The Board affords the October 2023 medical opinion significant probative value as it was conducted by a medical professional with consideration of the Veteran's lay statements, and specific facts in this case, and was supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board affords low probative value to the September 2015 and March 2022 medical opinions as they both lacked sufficient supporting rationale. Id. And the October 2021 medical opinion holds no probative value as the examiner erred in concluding that the Veteran had service in Vietnam. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the probative evidence of record is in support of the Veteran's claims, the Board finds that the criteria for the claim of entitlement to service connection for prostate cancer have been met, and the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for granulomatous disease, to include as secondary to the service-connected otitis media, is remanded. 2. Entitlement to service connection for coronary artery disease is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent VA examinations for both conditions in October 2021 where the examiner provided negative nexus opinions. Regarding the granulomatous disease, the examiner concluded that there was insufficient evidence to support the Veteran's claims. They explained that the STRs did not show any complaints of or treatment for the condition. The examiner acknowledged the Veteran's testimony that he had shortness of breath, difficulty running, and blisters on his arms during service, and his assertions that the condition was related to exposure to the chemicals in tear gas and a smoke screen including chlorosulfonic acid, titanium tetrachloride, and zinc. However, they concluded that there was no causative relationship between the claimed condition and the service-connected condition. As with the prostate cancer opinion, the examiner provided a positive nexus opinion concluding that the coronary artery disease was related to service based on the incorrect assumption that the Veteran served with boots on the ground in Vietnam. In March 2022, they provided an identical addendum opinion to the prostate cancer opinion. The Board notes, however, that both the October 2021 and March 2022 opinions were conclusory lacked sufficient supporting rationale, to include any discussion of the Veteran's longstanding assertion that the conditions are related to his exposure to PFAS. The October 2021 opinion also discussed the granulomatous disease and its relation to another service-connected disorder, but did not address which one, and the Veteran has not asserted any such connection. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. Additionally, the Board notes that at a May 2016 decision review officer hearing, the Veteran asserted that the heart condition was caused by the service-connected otitis media. This claim of entitlement has never been addressed by VA. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, remand is required for addendum VA medical opinions. Finally, in the September 2020 Board remand, the RO was directed to verify the Veteran's toxic exposures at Forts Ord and Lewis. The JSRRC issued a memorandum in November 2021 which indicated that they did not do research on those types of chemicals. Copies of emails were also added to the claims file which documented conversations discussing this remand directive, but did not include any evidence of any additional efforts to actually obtain it. Finally, in July 2022, the RO sent a letter to the Army Public Health Center requesting information on these exposures. On the same day, a letter was sent to the Veteran informing him that they had requested this information. Two months letter, a final response letter was sent to the Veteran indicating that they had requested this information to no avail, and suggested that he submit any additional information he had. The Board notes, however, that the RO did not make any additional attempts to follow up with the Army Public Health Center. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, which includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Thus, the Board finds there was not substantial compliance with the September 2020 remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Request from the appropriate military department information on the types of devices such as the reported smoke screens, illumination, and mortar rounds used in basic and advanced military training and whether participation in the training causes exposure to hazardous chemicals, and if so, what chemicals are present, to include PFAS, and what are the acute and long-term effects if known. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the coronary artery disease from a VA examiner, if at all possible, from an expert on the field of toxic chemical exposures. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. (a) The examiner must provide an opinion regarding whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the coronary artery disease had onset in, or is otherwise related to, active service, to include the various toxic exposures as documented by the Veteran at Forts Ord and Lewis, to include PFAS. (b) The examiner must also provide an opinion whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the coronary artery disease is caused by the service-connected otitis media. (c) The examiner must also provide an opinion whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the coronary artery disease is aggravated by the service-connected otitis media. (d) The examiner should consider the following: 1) the articles and photos submitted by the Veteran in December 2023, May 2016, April 2021, April 2022, and June 2022; and 2) the Board hearing testimony from April 2019 and September 2023. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the granulomatous disease from a VA examiner, if at all possible, from an expert on the field of toxic chemical exposures. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. (a) The examiner must provide an opinion regarding whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the granulomatous disease had onset in, or is otherwise related to, active service, to include the various toxic exposures as documented by the Veteran at Forts Ord and Lewis, to include PFAS. (b) The examiner should consider the following: 1) the articles and photos submitted by the Veteran in December 2023, May 2016, April 2021, April 2022, and June 2022; and 2) the Board hearing testimony from April 2019 and September 2023. Thomas English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.