Citation Nr: 0811830 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-38 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a prostate disability, to include as secondary to exposure to herbicide agents. 2. Entitlement to service connection for high blood pressure. 3. Entitlement to service connection for a kidney disability. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) from January 2004 and May 2005 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claims for service connection for a prostate disability, to include as secondary to exposure to herbicide agents; high blood pressure; and a kidney disability. The Board notes that although the October 2005 statement of the case addressed six issues, the veteran's timely appeal only identified the claims for service connection for a prostate disability, high blood pressure, and a kidney disability as the issues being appealed. Therefore, these are the only issues before the Board at this time. FINDINGS OF FACT 1. The veteran served in Vietnam from July 1969 to July 1970. 2. The veteran does not have a current diagnosis of a prostate disability. 3. The veteran's high blood pressure first manifested many years after his separation from service and is unrelated to his period of service or to any incident therein. 4. The veteran's kidney disability first manifested many years after his separation from service and is unrelated to his period of service or to any incident therein. CONCLUSIONS OF LAW 1. The veteran's claimed current prostate disability was not incurred in or aggravated by his active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 2. The veteran's current high blood pressure was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 3. The veteran's current kidney disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, including prostate cancer, cardiovascular disease, and nephritis, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service connection for disorders including prostate cancer will be rebuttably presumed if they are manifest to a compensable degree at any time after separation from active service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2007). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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. § 3.30(d). Prostate Disability The veteran's period of active duty from February 1969 to February 1971 included service in Vietnam during the applicable period. Thus, the veteran in this case will be afforded the presumption of exposure to Agent Orange during his service in Vietnam. However, the veteran's service medical records and post-service medical records are negative for evidence of a diagnosis of prostate cancer. Therefore service connection of prostate cancer due to exposure to Agent Orange is not warranted. 38 C.F.R. § 3.309(e). Having determined that the veteran is not entitled to presumptive service connection, the Board must now evaluate whether the veteran is entitled to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation). The first requirement for any service connection claim is evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The veteran's service medical records show that in September 1970, he was treated for urethral discharge and gram positive urethral test results. He made no complaints regarding his prostate at a December 1970 separation examination, and his anus and rectum were found to have no abnormalities. Additionally, although VA medical reports dated from August 2000 to May 2005 show that the veteran had elevated prostate- specific antigens, there is no post-service evidence showing any diagnosis of prostate cancer. The veteran's prostate blood tests were specifically noted to be stable with benign biopsies. Absent evidence of a current disability, service connection for a prostate disability must be denied. There is no competent medical evidence of record that demonstrates the presence of any prostate cancer or prostate disability. Because no prostate disability has been diagnosed in this case, the Board finds that service connection for a prostate disability is not warranted. The Board has considered the veteran's claims that he has a prostate disability related to his service. However, as a layman, the veteran is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998), Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). High Blood Pressure The veteran's service medical records are negative for complaints of or treatment for high blood pressure. On separation examination in December 1970, the veteran made no complaints regarding his blood pressure, and his heart and vascular system were found to be within normal limits. His blood pressure was 136/80. Since the veteran was not diagnosed with high blood pressure on separation, and there were no recorded complaints during a two-year period of service, the Board finds that the weight of the evidence demonstrates that chronicity in service is not established. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection for high blood pressure. 38 C.F.R. § 3.303(b). The first post-service evidence of record of high blood pressure was a June 1979 VA medical report where the veteran's blood pressure was found to be 140/98 in the right arm and 130/96 in the left arm. He was diagnosed with elevated blood pressure. The physician noted that the veteran had no previous history of hypertension and no family history of hypertension either. VA medical records dated from August 2000 to February 2005 show that the veteran received intermittent treatment for hypertension. A July 2003 determination from the Social Security Administration (SSA) found that the veteran's hypertension and seizures were not of such frequency or severity as to seriously limit his activities or keep him from working. A June 2004 SSA decision determined that the veteran was disabled due to his seizure disorder, chronic obstructive pulmonary disease, and hypertension. At no time did any treating provider relate the veteran's high blood pressure to his period of active service. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the evidence is against a finding of a nexus between military service and the veteran's current high blood pressure. There is no competent medical opinion of record relating the veteran's high blood pressure to his service or any event in service. Additionally, high blood pressure was not diagnosed within one year after separation, so presumptive service connection for high blood pressure is not warranted. The veteran contends that his current high blood pressure is related to his active service. However, as a layperson, he is not competent to relate his high blood pressure to his period of active service. Further, he is not competent to provide a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The veteran contends that the evidence shows continuity of symptoms after discharge and supports his claim for service connection. However, the first post-service diagnosis of the veteran's high blood pressure is in June 1979, approximately 8 years after his separation from service. In view of the lengthy period without treatment, there is no evidence of a continuity of symptomatology, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the preponderance of the medical evidence weighs against a finding that the veteran's high blood pressure developed in service or is due to any event or injury in service. The Board thus concludes that the high blood pressure was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim, service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kidney Disability The veteran's service medical records are negative for complaints of or treatment for a kidney disability. On separation examination in December 1970, the veteran made no complaints regarding his kidney, and his kidney was found to have no abnormalities. Since the veteran's kidney was found to be within normal limits on separation and there were no recorded complaints during a two-year period of service, the Board finds that the weight of the evidence demonstrates that chronicity in service is not established. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection for a kidney disability. 38 C.F.R. § 3.303(b). The first post-service evidence of record of a kidney disability was a January 2005 CT scan of the abdomen and pelvis that revealed a right renal cyst and a left renal mass that was suspicious for renal cell carcinoma. A March 2005 VA medical report shows that the veteran received a left partial versus total nephrectomy. VA medical reports dated from April 2005 to May 2005 show that the veteran received intermittent treatment for his kidney disability. At no time did any treating provider relate the veteran's kidney disability to his period of active service. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the evidence is against a finding of a nexus between military service and the veteran's current kidney disability. There is no competent medical opinion of record relating the veteran's kidney disability to his service or any event in service. Additionally, nephritis (or any other kidney disability) was not diagnosed within one year after separation and is not shown to be a presumptive disease of exposure to herbicides, so presumptive service connection for a kidney disability is not warranted. Furthermore, no medical professional has related the veteran's kidney disability to exposure to herbicides. The veteran contends that his current kidney disability is related to his active service. However, as a layperson, he is not competent to relate his kidney disability to his period of active service. Further, he is not competent to provide a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The veteran contends that the evidence shows continuity of symptoms after discharge and supports his claim for service connection. However, the first post-service diagnosis of the veteran's kidney disability is in January 2005, approximately 34 years after his separation from service. In view of the lengthy period without treatment, there is no evidence of a continuity of symptomatology, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the preponderance of the medical evidence weighs against a finding that the veteran's kidney disability developed in service or is due to any event or injury in service. The Board thus concludes that the kidney disability was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim, service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in August 2003, August 2004, and March 2005, and rating decisions in January 2004 and May 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the October 2005 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has not obtained a medical examination in relation to these claims because there is no competent evidence that the appellant's diagnosed disorders are the result of any event, injury, or disease in service. See 38 C.F.R. § 3.159(c)(4) (2007). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for a prostate disability, to include as secondary to exposure to herbicide agents, is denied. Service connection for high blood pressure is denied. Service connection for a kidney disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs