Citation Nr: 1042889	
Decision Date: 11/15/10    Archive Date: 11/24/10

DOCKET NO.  05-37 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, 
New Mexico


THE ISSUES

1.  Entitlement to service connection for prostate cancer.  

2.  Entitlement to service connection for heart disease.  

3.  Entitlement to service connection for peripheral neuropathy.  

4.  Entitlement to service connection for a skin disease.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James G. Reinhart, Counsel

INTRODUCTION

The Veteran served on active duty from February 1954 to February 
1974.  

This matter comes to the Board of Veterans' Appeals (Board) on 
appeal from a November 2004 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New 
Mexico.  

In October 2009, the Board remanded this matter to the RO via the 
Appeals Management Center (AMC) for additional development.  That 
development has been completed and the matter has been properly 
returned to the Board for appellate consideration.  See Stegall 
v. West, 11 Vet. App. 268 (1998).  


FINDINGS OF FACT

1.  The Veteran's dermatitis was incurred in active service.  

2.  The Veteran's residuals of prostate cancer are due to 
prostate cancer incurred in active service.  

3.  The Veteran's peripheral neuropathy of the lower extremities 
was incurred in active service.   

4.  The Veteran's heart disease did not have onset during active 
service, did not manifest within one year of separation from 
active service, is not the result of exposure to 
trichloroethylene during active service, and is not otherwise 
etiologically linked to his active service.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for dermatitis, have been 
met.  38 U.S.C.A.  §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 
(2010).

2.  The criteria for service connection for residuals of prostate 
cancer have been met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 
C.F.R. § 3.303 (2010).

3.  The criteria for service connection for peripheral neuropathy 
of the lower extremities have been met.  38 U.S.C.A. §§ 1110, 
1131 (West 2002); 38 C.F.R.  § 3.303 (2010).

4.  The criteria for service connection for heart disease have 
not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 
2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 
(2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection

In June 2004, VA received a claim from the Veteran for service 
connection for all of the disabilities on appeal.  He stated that 
during service he cleaned guns with trichloroethylene (TCE), 
including getting into the vats with no protective clothing, and 
asserted that exposure to this solvent caused these diseases.  He 
explained in an August 2004 writing that he worked in the weapons 
shop as a mechanic at Ellsworth Air Force Base from 1954 to 1960 
during which time he used TCE as a de-greaser.  

Service connection may be granted for a disability resulting from 
a disease or injury incurred in or aggravated by active service.  
See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) 
(2010).  "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. 2010) (quoting 
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Certain chronic diseases, including organic diseases of the 
nervous system, cardiovascular disease, and prostate cancer, may 
be presumed to have been incurred in or aggravated by service if 
manifest to a compensable degree within one year of discharge 
from service, even though there is no evidence of such disease 
during service.  38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 
2010); 38 C.F.R. §§ 3.307, 3.309 (2010).  

Service connection may be granted for any disease diagnosed after 
discharge, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in service.  
38 C.F.R. § 3.303(d).  Presumptive periods are not intended to 
limit service connection to diseases so diagnosed when the 
evidence warrants direct service connection.  Id.  

Peripheral neuropathy, prostate cancer, skin disability

In November 2004, VA received a letter from "T.A.M.," M.D. of 
William Beaumont Army Medical Center (WBAMC).  Dr. T.A.M. 
explained that the Veteran was diagnosed with cancer of the 
prostate in 2003, underwent a radical prostatectomy in January 
2004, had done well since then but suffers from post-operative 
erectile dysfunction.  

Dr. T.A.M. reported that the Veteran worked with TCE during 
service which, the physician stated, has been shown to be a 
possible carcinogen, and asked VA to take this into consideration 
in the review of his claim. 

VA treatment records include May 2005 dermatology and neurology 
consult reports documenting that the Veteran had a medical 
history to include prostate cancer, rosacea, and peripheral nerve 
disease.  Physical examination revealed actinic changes and 
keratoses as well as generalized dry skin and peeling.  The 
neurologist noted the Veteran's reports of pain in the lower 
extremities as well as spontaneous jerky movements and stated 
that peripheral neuropathy was a possibility.  Electromyography 
(EMG) and nerve conduction velocity (NCV) studies conducted in 
September 2005 yielded a conclusion of sensory motor 
polyneuropathy, predominately affecting myeline.  

Received in December 2005 is a pathology report indicating 
findings of actinic keratosis of the lower lip and findings 
typical for a superficial type of basal cell carcinoma of the 
lower middle back.  Records from WBAMC document that the Veteran 
underwent a radical prostatectomy in January 2004.  

In May 2010 the Veteran underwent VA examinations.  The examiner 
indicated that he had reviewed the Veteran's claims file.  As to 
the genitor-urinary examination, the examiner diagnosed radical 
prostatectomy for adenocarcinoma with residual erectile 
dysfunction and stress incontinence.  As to the neurology 
examination, the examiner diagnosed bilateral peripheral 
neuropathy of the lower extremities.  As to the skin examination, 
the examiner diagnosed dermatitis sicca.  

The examiner also provided a detailed expert opinion .  He stated 
that the Veteran's dry skin , peripheral neuropathy, and prostate 
cancer were at least as likely as not associated with the 
exposure to TCE during service.  He referred to information from 
the Agency for Toxic Substances and Disease Registry and The 
Canadian Centre for Occupational Health and Safety to support his 
opinion.  This information included that dermatitis, peripheral 
neuropathy, and prostate cancer were health problems in people 
who worked with TCE.  

The Board finds that the examiner has relied on sufficient facts 
and data, he appears to have reliably applied reliable medical 
principles to those facts and data, and he has provided a 
compelling rationale for his conclusion.  See Nieves-Rodriguez v. 
Peake, 22 Vet. App. 295 (2008).  

As to his conclusion, although he used the word "associated," 
instead of "caused," this the Board finds this to be a 
distinction without a difference (similar to the standards that 
appears to be used in medical determinations that certain 
disabilities are related to herbicides based on service in the 
Vietnam War).  He applied the requested standard, an as likely as 
not standard, and referenced the posed question of causation.  
The Board finds this to be compelling evidence that the Veteran's 
prostate cancer, dermatitis, and peripheral neuropathy were 
caused by his exposure to TCE during service.  

As to that exposure, the Board finds that the Veteran is 
competent to have identified TCE as the solvent that he used 
during service as this is accomplished by no more than the 
ability to read the label on a container.  There is no reason to 
believe that the Veteran is other than credible in his report of 
handling TCE during service.  

The Board has considered that that the pathology report from 2006 
included findings typical of actinic keratosis and a superficial 
type of basal cell carcinoma.  The examiner indicated in the May 
2010 report that the claims file had been reviewed.  In the 
opinion and rationale provided, the examiner specifically 
referred to dry skin and dermatitis as related to exposure to 
TCE.  He listed several types of cancer, including of the kidney, 
prostate, liver, and cervix as related to TCE exposure.  The 
conspicuous absence of basal cell carcinoma and actinic keratosis 
in the context of this detailed report, leads the Board to the 
conclusion that the Veteran's skin disability for which service 
connection is warranted is dermatitis and not these other 
conditions.  There is no evidence to support a different 
conclusion.  

Based on the evidence just discussed, the Board finds that 
service connection must be granted for dermatitis, peripheral 
neuropathy of the lower extremities, and residuals of prostate 
cancer.  

Heart disease

Service treatment records are absent for any evidence of heart 
disease.  A May 1973 report of medical examination for the 
purpose of retirement includes that the Veteran had a normal 
clinical evaluation of his heart, lungs and chest, and vascular 
system.  In an associated report of medical history, he indicated 
that he did not then have, nor had ever had, pain or pressure in 
the chest, palpitation or pounding heart, heart trouble, high or 
low blood pressure, or shortness of breath.  An 
electrocardiograph (EKG) from June 1973 was within normal limits, 
providing evidence against this claim.  

These records are evidence that the Veteran's heart disease did 
not have onset during his active service.  

In October 2004 the Veteran underwent a clinical physical 
examination, including an EKG which showed normal sinus rhythm 
with no acute changes.  It was noted that he sees a cardiologist.  
The earliest dated evidence of any cardiac abnormality is found 
in a January 2004 EKG tracing which noted an abnormal EKG and a 
non-specific T-wave abnormality.  In an August 2004 writing, the 
Veteran stated that he had a heart attack in March 1996.  As this 
is the earliest date referred to in the claims file with regard 
to onset of heart disease, this is evidence against a finding 
that the Veteran's heart disease manifested within one year of 
separation from active service.  There is no evidence of record 
showing manifestation of heart disease within one year of 
separation from active service.  Hence, the presumptive 
provisions for chronic diseases manifesting within a year of 
separation from service are not for application.  

The Board recognizes the Veteran's contention expressed in his 
June 2004 claim that his heart disease, as well as his prostate 
cancer, skin disease, and peripheral neuropathy, were due to 
Agent Orange exposure.  He qualified that assertion by stating 
his unsupported opinion that Agent Orange contained TCE.  In a 
January 2005 writing he indicated that his claim was not based on 
exposure to Agent Orange but rather on exposure to TCE.  

There is no evidence, and the Veteran does not contend, that he 
was exposed to the herbicide Agent Orange during service.  A July 
2004 Personal Information Exchange System (PIES) response 
indicates that there were no records of exposure of the Veteran 
to herbicides.  Of note is that the Veteran provides no basis for 
his statement that TCE was an herbicide agent.  Indeed, the 
evidence he has submitted, for example a document dated January 
19, 2005 from the Agency for Toxic Substances and Disease 
Registry, refers to TCE as used mainly as a solvent for removing 
grease from metal parts but also an ingredient in adhesives, 
paint removers, typewriter correction fluids, and spot removers.  
It does not list herbicides as a use.  

Similarly, a document printed by the Veteran in October 2005, 
titled Medical Management Guidelines, provides that TCE is used 
as a metal degreasing agent, is a common ingredient in cleaning 
agents, paints, adhesives, varnishes, and inks, and had in the 
past been used as a dry cleaning agent and as an analgesic and 
anesthetic agent.  The detail of these lists with no mention of 
use as a herbicide tends to show that TCE is not a herbicide.  
This evidence outweighs the Veteran's unsupported statement 
regarding its use as an herbicide.  

There are presumptive provisions for service connection for 
certain diseases, including ischemic heart disease, based on in-
service exposure to the herbicide known as "Agent Orange," or 
more specifically, to dioxin or 2,4 dichlorophenoxyacetic acid..  
See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309; 75 Fed. Reg. 53202-01 
(August 31, 2010).  There are no presumptive provisions for 
exposure to TCE.  As the evidence is against a finding that the 
Veteran was exposed to an herbicide agent during service, the 
presumptive provisions that depend on such exposure are not for 
application.  

In May 2010 VA afforded the Veteran an examination with regard to 
his claim for service connection for heart disease.  The examiner 
indicated that he had reviewed the Veteran's claims file.  He 
acknowledged that the Veteran had a heart attack in 1996, was 
found to have an infarct due to 2 blockages and was treated with 
medication.  In 2002, two stents were placed, and in 2008 two 
more stents were placed.  The Veteran currently has chest pain 
and wears a nitro patch.  The examiner diagnosed coronary artery 
disease with history of angioplasty and stents times four with 
continuing angina.  

Of note, the Veteran has not contended that he had heart disease 
during service.  The evidence from service and after service, 
including the Veteran's assertions, places the onset of his heart 
disease many years after service.  Hence the presumptive 
provisions for chronic diseases are not for application and the 
evidence is against a finding of onset of heart disease during 
service.  His sole asserted basis for entitlement to service 
connection for heart disease is that exposure to TCE caused his 
heart disease.  

The examiner addressed this theory in his examination report.  
First, he stated his opinion that it is less likely than not that 
the Veteran's heart disease is due to exposure to TCE.  The 
examiner listed the diseases that were implicated in TCE exposure 
and that list does not contain heart disease.  He explained that 
the cardiac effects of TCE is generally on the developing fetus 
and can result in congenital heart defects in children whose 
mothers have had exposure to PCE (tetrachlorethylene).  Also, 
acute exposure to TCE can cause cardiac arrhythmias when used as 
an anesthetic agent and individuals prone to arrhythmias may be 
subject to cardiac problems if exposed to TCE.  He explained that 
there is also a vasodilatory effect impacting on cardiac output.  
The examiner went on to explain that myocardial infarction is not 
a commonly reported adverse outcome to TCE exposure.  

As to the Veteran, the examiner stated that his primary risk 
factor is his long history of smoking.  He explained that it is 
impossible to determine if the TCE affected his cardiac status or 
the relative contribution to the myocardial infarction but the 
impact of the smoking far outweighs the impact of TCE exposure.  
He summed up his opinion stating that it was less likely than not 
that the myocardial infarctions were caused by exposure to TCE.  

The Board finds this examination report to be highly probative 
evidence unfavorable to the Veteran's claim.  The examiner had 
sufficient facts and data before him, he appears to have reliably 
applied reliable medical principles in rendering his opinion, and 
he has provided a compelling rationale supporting his opinion.  
See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Of note 
is that his reference to the Veteran's smoking history is 
reflected in the claims file; for example, VA treatment notes 
signed in February 2004 include that although the Veteran no 
longer smoked he had a smoking history of 2 packs per day for 30 
years.  

Also considered by the Board is the evidence that the Veteran 
submitted from internet sources.  One such document is titled 
Medical Management Guidelines and printed by the Veteran in 
October 2005.  This document provides that respiratory depression 
or cardiac dysrhythmia from high level TCE exposures can result 
in death, and that acute exposure effects include hypotension.  
Also noted is that at near anesthetic levels of exposure, TCE may 
cause acute effects including decreased contraction of the 
heart's muscle fibers, disordered electrical conduction, and 
lowered threshold of the heart to the effects of epinephrine -  
potentially disrupting heartbeat and may also cause blood vessel 
dilation and low blood pressure.  

This internet obtained evidence does not refer to myocardial 
infarction.  Nor is there any evidence that the Veteran had acute 
effects of exposure or that his exposure was at near anesthetic 
levels.  If this were the case, the Board would expect to find 
some reference to such anesthetic effect in the claims file, 
particularly in the service treatment records.  Hence, the 
favorable aspect of this evidence to the Veteran's claim is 
slight.  To the extent that this internet obtained evidence could 
be viewed as favorable to the Veteran's claim, the Board finds it 
is outweighed by the medical opinion provided in the May 2010 
examination report.  That report addressed the specific facts 
surrounding the Veteran's case while the internet obtained 
evidence did not and did not provide evidence that his particular 
heart condition is caused by exposure to TCE.  Most importantly 
the internet obtained evidence did not address the relative 
contributions of TCE exposure versus a long history of smoking 
while the May 2010 report did do so.  

Based on the evidence of record, the Board finds the 
preponderance of evidence to be against the Veteran's claim for 
service connection for heart disease.  Hence, his appeal as to 
this issue must be denied.  The evidence as to this issue is not 
so close as to allow for application of the benefit-of-the-doubt 
rule.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010); 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990)

Duties to notify and assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his or 
her representative, if any, of any information, and any medical 
or lay evidence, that is necessary to substantiate the claim.  
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must 
inform the claimant of any information and evidence not of record 
(1) that is necessary to substantiate the claim; (2) that VA will 
seek to provide; and (3) that the claimant is expected to 
provide.  38 C.F.R. § 3.159(b)(1).  This notice must be provided 
prior to an initial unfavorable decision on a claim by the RO.  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  For service-
connection claims, this notice must address the downstream 
elements of disability rating and effective date.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).
 
Here, the VCAA duty to notify was satisfied by way of a letters 
sent to the Veteran in July 2004, February 2005, and June 2006 
that fully addressed all required notice elements.  The 2004 and 
2005 letters informed the Veteran of what evidence was required 
to substantiate the claims and of the Veteran's and VA's 
respective duties for obtaining evidence.  These letters did not 
address how VA assigns disability ratings or effective dates in 
the event that service connection is established.  The letter 
sent in May 2006 did address how disability ratings and effective 
dates are assigned and the evidence that is relevant to make such 
assignments.  

Although the May 2006 letter was sent after the initial 
unfavorable decision by the RO, the letter, along with the 
opportunity the Veteran has had to participate meaningfully in 
the development of his claims, cured that timing defect.  See 
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance 
of a fully compliant VCAA notification followed by readjudication 
of the claim, such as a statement of the case or supplemental 
statement of the case, is sufficient to cure a timing defect).  

VA has a duty to assist the Veteran in the development of the 
claim.  This duty includes assisting the Veteran in the 
procurement of service and other pertinent treatment records and 
providing an examination when necessary.  38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed without 
prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 
(1993). 

VA afforded the Veteran adequate examinations with regard to all 
of the claims on appeal in May 2010.  The RO has obtained service 
and VA treatment records.  The Veteran submitted evidence from 
William Beaumont Army Hospital (of post service treatment) from 
Dermpath Diagnostics (of skin disease)and evidence obtained from 
internet accessed sources.  

Considered by the Board is an August 2004 letter from the Veteran 
in which he listed the dates of treatment and addresses of two 
physicians, "K.L.R.," M.D. and "D.H.," M.D. who treated him 
for heart disease in 1996 and 2002 and the name and address of 
his cardiologist, "R.S.M.," M.D.  This was in apparently in 
response to the July 2004 VCAA notice letter.  Accompanying that 
notice letter were three enclosed copies of VA Form 21-4142, 
Authorization and Consent to Release Information to the 
Department of Veterans Affairs.  VA Form 21-4142 specifically 
provides that it is the respondent's burden to provide the 
information requested in the form in order for VA to obtain 
treatment records.  The form specifically instructs that the 
respondent must sign and date the form and indicate his or her 
authorization to disclose or release information.  

The Veteran did not provide completed VA forms 21-4142 for the 
release of information to VA from any of these practitioners.  
The RO sent copies of the November 2004 decision and the June 
2005 statement of the case to the Veteran and his representative 
and neither of those documents listed evidence from Drs. K.L.R., 
D.H., or R.S.M.  In the November 2005 letter, the RO again asked 
the Veteran to send in any medical reports that he may have and 
told him that if he wanted VA to assist him in obtaining 
evidence, to complete and return the enclosed VA Form 21-4142s.  
The Veteran did not send VA completed VA Form 4142s with regard 
to any evidence held by these physicians.  VA thus informed the 
Veteran on more than one occasion of the need for the 
authorization and consent yet the Veteran did not provide the 
completed forms.  

The Veteran has not provided any additional information or 
evidence, has not asked VA to assist him in obtaining any 
additional information or evidence, and has not provided release 
of information documents for VA to provide assistance.  Hence, no 
further notice or assistance to the Veteran is required to 
fulfill VA's duty to assist under the VCAA.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); 
Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

Service connection is granted for residuals of prostate cancer.  

Service connection is granted for a skin disability.  

Service connection is granted for peripheral neuropathy of the 
lower extremities.  

The appeal is denied as to entitlement to service connection for 
heart disease.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



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