Citation Nr: 1109344	
Decision Date: 03/09/11    Archive Date: 03/17/11

DOCKET NO.  07-32 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a prostate condition.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel



INTRODUCTION

The Veteran served on active duty with the United States Air Force from January 1966 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In his October 2007 substantive appeal, the Veteran requested a hearing before the  Board at the RO; he withdrew this request in February 2008.

In a September 2009 decision, the Board remanded the question of service connection for a prostate condition for further development.  The decision also denied service connection for tinnitus; no further question remains for the Board with regard to that issue.


FINDING OF FACT

Currently diagnosed benign prostatic hyperplasia (BPH) was not first manifested in service and the preponderance of the evidence is against a finding that BPH is related to military service.


CONCLUSION OF LAW

The criteria for service connection for a prostate condition have not been met.  38 U.S.C.A. § 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.303 (2010).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 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 (2010).  A September 2006 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records and private treatment record have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2).  He has not alleged nor does the record show any VA treatment.  A VA examination was conducted and a relevant opinion was obtained in October 2009 following the Board remand.  This examination complied with the letter and spirit of the Board remand directives and is adequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

The Veteran has argued that the opinion is inadequate, as the examiner failed to address a specific study cited by the Veteran in support of his claims.  The argument, however, goes to the weight to be afforded the VA doctor's opinion, and not to its adequacy.  The Veteran additionally objects on the basis that the examiner relied on "standard medical references" including a subscription-only online resource.  He requests copies of the referred to source.  However, the examiner's reliance is not on one specific source, but on mainstream, current medical references.  Any "standard" current source would contain the same information, and hence the Veteran has had ample opportunity to respond and has, in fact, submitted an abstract of a competing medical study.  The duty to assist is met.  
The Veteran objects to the failure of VA to supply the complete contents of a general medical knowledge resource even as he fails to submit the complete findings and report of specialized study is not lost on the Board.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

II.  Analysis

The Veteran has specified that although his service in Vietnam has been conceded, and hence his exposure to herbicides is presumed, he is not alleging entitlement to service connection for a prostate condition based on that exposure.  He recognizes that he has not been diagnosed with a listed presumptive condition (prostate cancer) under 38 C.F.R. § 3.309(e), and argues solely that he is entitled to service connection on a direct basis.  He asserts that his current diagnosis of BPH is related to treatment for prostatitis in service. 

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Service treatment records show that in April 1968, the Veteran's prostate was tender; there was no tenderness in May 1968, when chronic prostatitis was diagnosed.  Mild chronic prostatitis was listed as a differential diagnosis in June 1968, when the Veteran complained of problems with urinary frequency.  This was confirmed, as low-grade prostatitis, in November 1968; the prostate was boggy.  Asymptomatic prostatitis was listed as the diagnosis in December 1968.  At the April 1969 separation examination, no findings related to prostate problems currently or in the past were noted.  The examiner noted a past venereal disease infection, but stated it had been treated with antibiotics and resolved completely without residuals.

Private treatment records reveal that the Veteran was prescribed Flomax in April 2004 after being diagnosed with prostate hyperplasia.  The prostate was smooth at the time, and there is no indication of the symptomatology which prompted the diagnosis.  Although use of Flomax continued, BPH was not again listed as an active diagnosis until January 2006.  Some unspecified BPH symptoms were complained of in April 2006.  

The Veteran was then referred to a private urologist for treatment of BPH with obstruction.  In May 2006, his medications were adjusted to include Avodart.  He continued to have flow problems, with intermittency, hesitancy, and decreased stream, but the medications did help.  Surgery was proposed, and laser therapy was administered in December 2006.  The Veteran continues to have problems with BPH, but at no time since active service has prostatitis been diagnosed by any doctor.

A VA genitourinary examination was conducted in October 2009.  The claims file was reviewed in conjunction with the examination.  The in service treatment for urethral problems was noted, and the Veteran reported that while in service, he was treated with medications for problems that "went on over a period of months in 1967-68."  He reported that since that time, he has had occasional pains in the genital area, but he could not provide details.  He reported a slow stream of urine, but did not know how long that had been occurring.  He stated he was diagnosed with an enlarged prostate in 2001, and began using Flomax.  The examiner opined that the enlarged prostate diagnosed over the prior three years was "unlikely to be related to prostate infections and/or urethritis" treated in service.  He stated that prostatitis does not lead to BPH, according to current standard medical knowledge.  He indicated he consulted the most current resources he could through use of an online reference service.

The Veteran, through his representative, has submitted a copy of an abstract summary of a 1999 study regarding a link between prostatitis, BPH, and prostate cancer.  The summary describes the methodology used in the study of 40 prostatectomy samples.  The abstract concluded that the "data suggest that while chronic inflammation in the prostate is associated with both BPH and prostate cancer, it has a greater tendency to be associated with BPH."

Although the listed in service diagnosis is of "chronic" prostatitis, the competent evidence of record clearly demonstrates that the condition, in fact, resolved over a period of several months in service and was not chronic.  Service treatment records indicate the condition resolved prior to separation and no doctor, including a team of urology specialists, has noted the presence of prostatitis or diagnosed that condition since service.  Further, the Veteran has not alleged that he has had continuity of symptoms since service; at most he has had occasional, indefinite pain around his genitals.  He cannot localize or describe it.  While the Veteran is competent to describe pain he experiences, his allegations are so indefinite and nebulous that they lack credibility.

The sole medical opinion of record is against the claim.  The VA examiner has reviewed the claims file and considered the Veteran's independent reports of his medical history.  He has offered a supportable and credible rationale for his opinion, citing current mainstream medical knowledge.  The Veteran has attempted to undermine this rationale by citing a summary of a study made of a very small (40) selection of samples almost a decade prior to the VA examination.  The examiner stressed that he had relied on the most current findings he could locate.  Moreover, the abstract does not reach a definitive conclusion regarding a link between prostatitis and BPH.  It only states that a link is "suggest[ed]" by the data.  Even if the study was considered exhaustive and authoritative, which it is not, a suggestion is not sufficient to overcome the reasoned and clearly stated and supported opinion of the VA examiner, or even to place the issue in equipoise.

The preponderance of the evidence is against the claim; there is no doubt to be resolved.  Service connection for a prostate condition is not warranted.





ORDER

Service connection for a prostate condition is denied.





____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs