Citation Nr: 1031640 Decision Date: 08/23/10 Archive Date: 09/01/10 DOCKET NO. 07-32 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for residuals of prostate cancer. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who retired from active duty in January 1974. He had unverified active service in excess of 20 years, including service in the Republic of Vietnam. This matter was originally before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Hartford, Connecticut Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's service connection claim. The Veteran failed to report for hearings scheduled in November 2007, January 2008 and February 2009. The Veteran's appeal was first before the Board on April 21, 2009, at which time service connection for residuals of prostate cancer was granted. In September 2009, a Deputy Vice Chairman of the Board, on her own motion, ordered reconsideration of the Board's April 2009 decision. See 38 C.F.R. § 20.1001 (2009). The basis of the reconsideration was that additional evidence was received from the RO showing that the Veteran has never been diagnosed with prostate cancer. A decision rendered in December 2009 by a reconsideration panel replaced the April 21, 2009, Board decision that granted service connection for residuals of prostate cancer. See 38 C.F.R. § 20.1100. The December 2009 decision remanded the claim for additional development. The requested development has been completed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran is not shown to have residuals of prostate cancer. CONCLUSION OF LAW Residuals of prostate cancer were not incurred in or aggravated by military service, nor may service incurrence of prostate cancer be presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the VCAA, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts have been fulfilled by information provided to the Veteran by correspondence dated in October 2005, March 2006 and February 2010. These letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board also notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). The Veteran's service treatment records (STRs) and service personnel records are associated with his claims file, and pertinent post-service treatment records have been secured. The Veteran underwent a VA examination in May 2009. He failed to report for hearings scheduled in November 2007, January 2008 and February 2009. As discussed below, the Veteran identified treatment for prostate cancer at a private hospital in February 2000. In October 2005 and February 2010 letters, the RO asked the Veteran to submit any outstanding medical reports or a VA Form 21-4142, Authorization and Consent to Release Information, so the RO could obtain these records. He did not respond to either request. In February 2010, he indicated that he had no additional information or evidence to provide in support of his claim. As the duty to assist is not one-way street (see Wood v. Derwinski, 1 Vet. App. 190 (1991)), VA's assistance obligations to obtain these potentially pertinent records have been met. The Board finds that evidentiary development in this matter is complete to the extent possible. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Service Connection for Residuals of Prostate Cancer Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially 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). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non- exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include prostate cancer) to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313. Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he has current residuals of prostate cancer as a result of his exposure to herbicides during Vietnam. He reported serving in-country at Pleiku airbase as an aircraft mechanic. The Veteran's service personnel records show he had active duty service from January 1954 to January 1974, including service in the Republic of Vietnam from approximately October 1966 to September 1967. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of prostate cancer. In June 2000, private magnetic resonance imaging (MRI) reports notes the Veteran's history of colon cancer and identified postoperative changes to the prostate gland, including a prior transurethral resection, and a soft tissue mass in the mid sigmoid colon, described as having a biopsy proven colonic cancer. A March 2001 initial consultation report from Dr. D.W. notes a diagnosis of stage II colon cancer, status post-sigmoid resection in July 2000. The report notes the Veteran's history of urosepsis (originally thought to be TTP) in January 2000, but no findings of prostate cancer were noted. On examination, the Veteran was tumor-free; however, chemotherapy was recommended because of the risk of recurrence. An August 2001 private treatment record notes that the Veteran had undergone transurethral resection of the prostate (TURP) in February 2000. August 2001 private MRI reports notes the Veteran's history of colon cancer. Findings included status post TURP and no evidence for recurrent tumor in the pelvis. A December 2001 private pelvic MRI report notes a history of colon and prostate cancer. Current finding included status post- TURP. An April 2002 private nuclear medicine bone scan notes a history of prostate and colon cancer. The Veteran indicated in his October 2005 claim for service connection that he had received treatment for prostate cancer at Bridgeport Hospital in February 2000; however, he did not submit these records or a release for VA to obtain them (as requested by VA in October 2005 and February 2010). In February 2010, the Veteran indicated that he had no additional information or evidence to submit in support of his claim. In a May 2009 VA examination report, the VA examiner noted that the Veteran brought to the examination all of his medical records and his outside MD and all his admissions to Bridgeport Hospital, and these contained no evidence of prostate cancer. It was indicated that in 2000, he underwent a TURP for benign prostatic hypertrophy (BPH). The Veteran denied any current renal dysfunction or any malignancy of the prostate, to include any treatment or surgery. The record clearly establishes that the Veteran served in-country in Vietnam during a period when he was presumed to have been exposed to herbicides. However, the Veteran's STRs are silent for any complaints, findings, treatment, or diagnoses of prostate cancer. Post- service medical evidence is negative for any findings, treatment, or diagnoses of prostate cancer. Simply stated, there is absolutely no evidence of record in the claims folder of prostate cancer or residuals thereof. Accordingly, service connection for residuals of prostate cancer is not warranted. See Brammer, supra. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of prostate cancer is denied. ERIC S. LEBOFF WAYNE M. BRAEUER Acting Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs