Citation Nr: 1030324 Decision Date: 08/13/10 Archive Date: 08/24/10 DOCKET NO. 06-31 712A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for the period from April 1, 2006 to August 10, 2006, and in excess of 40 percent for residuals of prostate cancer, status- post radiotherapy, to include whether a reduction from 100 percent disabling to 20 percent disabling was proper. 2. Entitlement to higher initial disability ratings for radiation proctitis, currently evaluated as 30 percent disabling. 3. Entitlement to higher initial disability ratings for erectile dysfunction with bilateral atrophy of the testes, currently evaluated as 20 percent disabling. 4. Entitlement to service connection for insomnia, claimed as a neuropsychiatric disability and as secondary to service-connected residuals of prostate cancer, status-post radiotherapy. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to November 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision of the RO that decreased the evaluation for the Veteran's service-connected prostate cancer from 100 percent (effective in August 2004) to 20 percent under Diagnostic Code 7528, effective April 2006. The Veteran timely appealed. These matters also come to the Board on appeal from a September 2006 decision of the RO that, in pertinent part, granted service connection for radiation proctitis and for erectile dysfunction with bilateral atrophy of the testes-each evaluated as 0 percent (noncompensable) disabling effective February 28, 2006 (date of claim); and from an August 2008 decision of the RO that denied service connection for insomnia, claimed as a neuropsychiatric secondary to service-connected residuals of prostate cancer, status-post radiotherapy. The Veteran timely appealed. In August 2006, the RO increased the disability evaluation to 40 percent for residuals of prostate cancer, status-post radiotherapy, effective August 10, 2006 (date of examination). In April 2008, the RO increased the disability evaluations to 30 percent for radiation proctitis, and to 20 percent for erectile dysfunction with bilateral atrophy of the testes-each effective February 28, 2006 (date of claim). Because higher evaluations are available for each service-connected disability, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2007, the Veteran testified during a hearing before RO personnel. FINDINGS OF FACT 1. For the period from April 1, 2006, through August 9, 2006, the Veteran's residuals of prostate cancer, status-post radiotherapy, were manifested primarily by urinary frequency that required the Veteran to awaken to void three-to-four times per night; no obstructed voiding, and no local recurrence or metastasis of malignant neoplasms of the genitourinary system were demonstrated. 2. For the period from August 10, 2006, the Veteran's residuals of prostate cancer, status-post radiotherapy, have been manifested by a voiding dysfunction with occasional incontinence that required the wearing of absorbent materials which must be changed two-to-four times per day; no obstructed voiding, and no local recurrence or metastasis of malignant neoplasms of the genitourinary system have been demonstrated. 3. Since the effective date of the grant of service connection, the Veteran's radiation proctitis has been manifested by streaks of rectal bleeding without pain occurring daily, equivalent to moderately severe ulcerative colitis with frequent exacerbations; but severe ulcerative colitis with numerous attacks and malnutrition have not been demonstrated. 4. Since the effective date of the grant of service connection, the Veteran's erectile dysfunction with bilateral atrophy of the testes has been manifested by atrophy of both testicles; but removal of the testicles has not been demonstrated. 5. A neuropsychiatric disability, to include insomnia, was first demonstrated many years after service and is not related to a disease or injury during active service; and is not due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for residuals of prostate cancer, status-post radiotherapy, for the period from April 1, 2006, through August 9, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2009). 2. The criteria for a disability rating in excess of 40 percent for residuals of prostate cancer, status-post radiotherapy, for the period from August 10, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2009). 3. The criteria for an initial disability rating in excess of 30 percent for radiation proctitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.114, Diagnostic Code 7323 (2009). 4. The criteria for an initial disability rating in excess of 20 percent for erectile dysfunction with bilateral atrophy of the testes have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115b, Diagnostic Code 7523 (2009). 5. A neuropsychiatric disability, to include insomnia, was not incurred or aggravated in service; and is not proximately due to, or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through May 2008 and October 2008 letters, the RO notified the Veteran of elements of service connection, the evidence needed to establish each element, and evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the May 2008 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the Veteran has also appealed for a higher initial disability rating assigned following the grant of service connection for radiation proctitis and for erectile dysfunction with bilateral atrophy of the testes. Hence, the Board has characterized the issues in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. As Fenderson held that a claim for an initial disability rating is distinct from a claim for increased rating, the requirements of Vazquez- Flores v. Peake, supra, are not applicable to the present claims. Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Higher Disability Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2009). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson, 12 Vet. App. at 126. A. Residuals of Prostate Cancer, Status-Post Radiotherapy Service connection has been established for residuals of prostate cancer, status-post radiotherapy. Procedural Safeguards Residuals of prostate cancer are evaluated initially as "malignant neoplasms of the genitourinary system" under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, the Veteran is to receive a 100 percent rating following surgery, and thereafter is to be rated on the residuals as voiding dysfunction or renal dysfunction. 38 C.F.R. § 4.115b (2009). A note under Diagnostic Code 7528 states that a 100 percent rating shall continue with a mandatory VA examination six months following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (2009). Section 3.105(e) pertains to reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e) (2009). In a September 2004 rating decision, the RO assigned a 100 percent disability rating under 38 C.F.R. § 4.115b, Diagnostic Code 7528, based upon findings of active malignancy. Records show that the Veteran underwent radiotherapy. Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). By an August 2005 rating decision and letter to the Veteran, the RO satisfied the procedural requirements. In this case, the Veteran did not request a hearing, and no additional evidence was received within the 60-day period. Accordingly, the RO sent the Veteran written notice of the final action in January 2006. This notice set forth the reasons for the action and the evidence upon which the action was based. 38 C.F.R. § 3.105(e). Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e). Here, notice was sent in a January 2006 letter and the effective date of the reduction was April 1, 2006. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date. The question is thus whether the reduction was proper based on the evidence of record. Where a disability evaluation has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c) which provides that a reexamination that shows improvement in a disability warrants a reduction in the disability evaluation. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated; post-reduction medical evidence may be considered only in the context of considering whether actual improvement was demonstrated. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). According to evidence available at the time of the January 2006 rating decision, a reassessment of the Veteran's disability occurred in June 2005. Records reflect that the Veteran's last radiation treatment was seven months prior to the June 2005 VA examination. The Veteran denied any incontinence, and no urgency. The examiner noted good voiding patterns, nocturia times four, and normal prostate-specific antigen. There was no evidence of any renal dysfunction. In this case, when the earlier treatment records are compared with the June 2005 VA examination, some improvement in the Veteran's residuals of prostate cancer, status-post radiotherapy, is demonstrated. Specifically, the latter evidence does not reflect any reoccurrence or metastasis during the nearly ten- month period from June 2005 to April 2006. In fact, since then, the evidence shows no reoccurrence. Hence, actual improvement is demonstrated over time. Given the findings of the June 2005 VA examination and the absence of reoccurrence or metastasis, the Board finds that the evidence showed overall improvement. Hence, the reduction in the disability evaluation for residuals of prostate cancer, status- post radiotherapy, was proper. 38 C.F.R. § 3.344(c). Rating Criteria Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where there has been no local reoccurrence or metastasis, residuals of malignant neoplasms of the genitourinary system are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. Voiding dysfunction is to be evaluated as urine leakage, frequency of urination, or obstructed voiding. For urinary leakage, the rating schedule provides a 20 percent rating for disability requiring the wearing of absorbent materials which must be changed less than two times per day. Where the disability requires the wearing of absorbent materials which must be changed two-to-four times a day, a 40 percent rating is warranted. A 60 percent rating is warranted for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. For urinary frequency, the rating schedule provides a 10 percent rating for a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating applies for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A maximum 40 percent rating applies for a daytime voiding interval of less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, the rating schedule indicates that a 30 percent rating applies if the Veteran has urinary retention requiring intermittent or continuous catheterization. A 10 percent rating applies if there is marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post- void residuals greater than 150 cubic centimeters (cc), markedly diminished peak flow rates less than 10 cc per second by uroflowmetry, recurrent urinary tract infection secondary to obstruction, or stricture disease requiring dilatation every two to three months. A noncompensable rating applies if the disease is manifested by obstructive symptomatology, with or without stricture disease, requiring dilatation once or twice a year. 38 C.F.R. § 4.115a. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the Period from April 1, 2006, to August 9, 2006 In this case, there is no evidence of renal dysfunction, and the predominant area of a voiding dysfunction appears to be that of urinary frequency. The report of a June 2005 VA examination reflects no signs of reoccurrence of carcinoma of the prostate. At the time the Veteran reported a urinary frequency of four times, and nocturia four times. He reported no urgency and described no incontinence. He did not wear any absorbent material. He reported no urinary tract infections. His last radiation treatment was seven months earlier. No residuals were noted. During the applicable period, the Veteran's residuals of prostate cancer, status-post radiotherapy, have been manifested primarily by urinary frequency requiring awakening to void three to four times per night. The symptoms do not meet the criteria for a disability rating in excess of 20 percent. Awakening to void five or more times per night is not shown. Thus, the weight of the evidence is against the grant of an increased disability rating for the Veteran's claim during the period from April 1, 2006, to August 9, 2010. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2009). For the Period from August 10, 2006 Here, there is no evidence of renal dysfunction, and the predominant area of a voiding dysfunction appears to be that of urinary leakage. During the August 10, 2006 examination, the Veteran reported urinary incontinence and erectile dysfunction. He reported wearing three or four absorbent materials during the day, and one at night. Following examination, the examiner diagnosed urinary incontinence secondary to prostate cancer, status-post radiotherapy. In essence, during the applicable period, the Veteran's residuals of prostate cancer, status-post radiotherapy have been manifested by complaints of voiding dysfunction with occasional incontinence that require the Veteran to wear absorbent materials. These symptoms meet the criteria for a 40 percent disability rating under 38 C.F.R. § 4.115b, Diagnostic Code 7528, on the basis of urine leakage requiring the wearing of absorbent materials that must be changed three-to-four times daily. Accordingly, staged ratings are permissible. Here, a voiding dysfunction with incontinence is not shown to require the Veteran's wearing of absorbent materials which must be changed more than four times daily. Nor is there evidence of any renal dysfunction. Hence, a disability rating in excess of 40 percent is not warranted. The Board notes that the Veteran's service-connected radiation proctitis and service-connected erectile dysfunction with bilateral atrophy of the testes have been evaluated separately, as shown below; and are not for consideration in evaluating the Veteran's residuals of prostate cancer, status-post radiotherapy. 38 C.F.R. § 4.14. B. Radiation Proctitis Service connection has been established for radiation proctitis. The RO assigned an initial 30 percent disability rating under Diagnostic Code 7599-7323. A hyphenated diagnostic code reflects a rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27). Pursuant to Diagnostic Code 7323, a 10 percent rating is assigned for moderate ulcerative colitis when there are infrequent exacerbations. A 30 percent rating is assigned for moderately severe ulcerative colitis when there are frequent exacerbations. A 60 percent rating is assigned for severe ulcerative colitis when there are numerous attacks a year and malnutrition, and the health only fair during remissions. A 100 percent rating is assigned for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323 (2009). A rectum biopsy in February 2006 was consistent with radiation colitis. During an August 2006 VA examination, the Veteran reported no renal colic or bladder stones. Examination revealed blood in the Veteran's stools. The examiner commented that problems with the bowel can develop, as in this case, with prostate cancer that received radiation. In June 2007, the Veteran testified that he had bleeding in the rectal area. He testified that it was bleeding only, not fecal incontinence, and that it happened every day. During a February 2008 VA examination, the Veteran reported seeing blood streaks in toilet tissue. He denied profuse bleeding or pain. His current treatment consisted of fiber products and suppositories, as needed, for constipation. The Veteran weighed 183 pounds, and his vital signs revealed no change in weight. Examination of the anal and rectal mucosa was friable, but without tenderness; streaks of red blood were noted. Private treatment records, dated in September 2008, showed findings of radiation proctitis. The report of a September 2009 VA examination noted a history of frequent rectal bleeding. The diagnosis was proctitis. The examiner commented that the Veteran had post-external radiation proctitis that had been stable and did not change. In essence, the Veteran's radiation proctitis has been manifested primarily by streaks of rectal bleeding without pain and occurring daily. These symptoms are equivalent to moderately severe ulcerative colitis with frequent exacerbations, and warrant no more than the currently assigned 30 percent initial disability rating. Neither severe, numerous attacks nor malnutrition have been demonstrated. Thus, the weight of the evidence is against the grant of an initial disability rating in excess of 30 percent for the Veteran's radiation proctitis. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2009). Accordingly, staged rating, pursuant to Fenderson, supra, is not applicable. C. Erectile Dysfunction with Bilateral Atrophy of the Testes Service connection has been established for erectile dysfunction with bilateral atrophy of the testes. The RO assigned an initial 20 percent disability rating under Diagnostic Code 7523, which is the maximum rating under that diagnostic code. 38 C.F.R. § 7523. Disabilities of the testis are rated based on atrophy (Diagnostic Code 7523) or removal (Diagnostic Code 7524). Diagnostic Code 7523 provides a maximum 20 percent rating when there is complete atrophy in both testes; Diagnostic Code 7524 provides a maximum 30 percent rating for removal of both testes. 38 C.F.R. § 3.115b. Private treatment records show a finding of erectile dysfunction in September 2005. During an August 2006 VA examination, the Veteran reported erectile dysfunction since being treated with radiation in 2004. The examiner noted no complaints of erectile dysfunction at the Veteran's last examination in June 2005. Examination revealed no deformities; testicles were soft and movable, and no masses. The diagnosis was erectile dysfunction, secondary to prostate cancer, status-post radiotherapy. In January 2007, the Veteran described his erections as very weak, and that oral medications did not help. He complained that the situation affected his self-esteem, but refused psychiatric intervention. Considering the evidence in light of the applicable criteria, the Board finds that an initial disability rating in excess of 20 percent for erectile dysfunction with bilateral atrophy of the testes is not warranted. There is no evidence of testicle removal. Hence, a higher disability rating is not warranted. D. Extraschedular Consideration There is no showing that the Veteran's service-connected disabilities have resulted in so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the Veteran's disabilities have not been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The Veteran is not currently working, and there is no evidence of recent hospitalizations. In the absence of evidence of any of the factors outlined above, the criteria for referral for consideration of an extraschedular rating have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time. 38 U.S.C.A. § 1111. Service treatment records of the Veteran's entry report no defects. The Veteran does not claim and the record does not show that insomnia or a neuropsychiatric disability was present in service, manifested to a compensable degree within the first post-service year, or that insomnia or a neuropsychiatric disability is otherwise related to active duty. The Veteran contends that service connection for insomnia, claimed as a neuropsychiatric disability, is warranted on the basis that his disability is proximately due to or a result of his service-connected prostate cancer, status-post radiotherapy. Service connection is in effect for residuals of prostate cancer, status-post radiotherapy, evaluated as 40 percent disabling. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2009); Allen v. Brown, 7 Vet. App. 439 (1995). During the pendency of this appeal, there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Since this regulation change incorporates the provisions of Allen, case law which had already been followed, there is no prejudice to the Veteran applying the new or old regulation. During an October 1978 VA examination, the Veteran reported that he could not sleep, and that noise woke him and then he could not sleep again all night. Following examination, the diagnosis was anxiety neurosis, chronic, with depressive features. The disability was considered moderately severe at that time. The report of a January 1992 VA examination included an Axis I diagnosis of schizophrenia paranoid type (by history and records), in partial remission. Records show that the Veteran's prostate cancer, status-post radiotherapy, was noted to be in remission in June 2006. In June 2008, the Veteran underwent a VA examination for purposes of determining the nature and etiology of the Veteran's neuropsychiatric disability. The Veteran reported experiencing severe insomnia since he developed a low back disability. The Veteran also reported that he retired from his employment as a policeman in 1978 due to his low back disability. The examiner noted that the Veteran was vague concerning frequency, duration, and quality of the symptom. The examiner reviewed the claims file and the Veteran's medical history. The examiner also noted that the Veteran's sleep impairment interfered with daily activity, and that medication was required for treatment. Examination revealed the Veteran's mood to be anxious, due to insomnia. No additional psychological testing was required. The Axis I diagnosis was sleep disorder due to medical condition, insomnia type. No other mental condition was found. The examiner commented that the Veteran had severe insomnia since his low back trauma. In a written statement dated in February 2010, private physician Robert Toro Soto, M.D., indicated that the Veteran had major depression/insomnia which had developed since his diagnosis of cancer. The report of a March 2010 VA examination includes a medical opinion, stating that the Veteran's neuropsychiatric disability was not caused by or a result of his service-connected prostate cancer, status-post radiotherapy. The VA examiner had reviewed the claims file, and noted the Veteran's medical history. In support of the opinion, the VA examiner noted evidence of neither psychiatric complaints nor findings in service or during the first post-service year; that the Veteran sought psychiatric care in 1992, due to a work-related accident; and that the Veteran's neuropsychiatric disability preceded his service-connected prostate cancer by 12 years. The VA examiner concluded that the Veteran's neuropsychiatric disability was not secondary to the service-connected prostate cancer, status-post radiotherapy. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds both the June 2008 and the March 2010 examiners' opinions to be probative on the question of causation, primarily for secondary service connection. The March 2010 examiner noted the onset of a neuropsychiatric disability preceding the Veteran's prostate cancer, status-post radiotherapy. The June 2010 examiner also attributed the Veteran's sleep disorder to his low back trauma. Neither examiner noted evidence of aggravation. In fact, the June 2008 examiner indicated that the Veteran was vague in describing the frequency, duration, and quality of symptoms. There is no convincing opinion to the contrary, and no evidence of permanent aggravation reflected in the claims file. The Board ntoes that the statement from Dr. Toro Soto which indicates psychiatric symptoms are related to the cancer is simply a bare conclusion, and appears to be based on an innacurate history, specifically, that psychiatric symptoms had onset after he was diagnosed with cancer. Therefore, it has no probative value. While the Veteran is competent to offer statements of first-hand knowledge that he suffered insomnia or a neuropsychiatric disability post-service, as a lay person he is not competent generally to render a probative opinion on a medical matter, such as the onset of insomnia or of medical diagnosis or aggravation of a neuropsychiatric disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Here, the Veteran's statements about insomnia or a neuropsychiatric disability starting in 2004 when he was diagnosed with prostate cancer are contradicted by the clinical record, including a diagnosis of anxiety neurosis in 1978. The competent evidence weighs against a finding that the Veteran's insomnia or neuropsychiatric disability is proximately due to or the result of prostate cancer, status-post radiotherapy; and there is no evidence in the claims file showing a permanent worsening of the Veteran's insomnia due to his prostate cancer, which is currently in remission. A clear preponderance of the evidence is against the Veteran's claim for service connection for insomnia or for a neuropsychiatric disability, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER A disability rating in excess of 20 percent for residuals of prostate cancer, status-post radiotherapy, for the period from April 1, 2006, through August 9, 2006, is denied. A disability rating in excess of 40 percent for residuals of prostate cancer, status-post radiotherapy, for the period from August 10, 2006, is denied. An initial disability rating in excess of 30 percent for radiation proctitis is denied. Service connection for insomnia and/or neuropsychiatric disability is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs