Citation Nr: 1237182 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 11-12 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a prostate disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision on behalf of the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The persuasive evidence demonstrates a chronic prostate disorder, to include prostate cancer, was not incurred as a result of genitourinary problems experienced in service; prostate cancer did not become manifest within one year of service discharge. CONCLUSION OF LAW A chronic prostate disorder, to include prostate cancer, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the Veteran in October 2009. That letter 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 notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes a copy of a February 1955 service department examination report, a December 2009 VA examination report, private treatment records, an April 2010 statement from a fellow serviceman, and the Veteran's statements in support of his claim. The record also shows that additional service treatment and personnel records are unavailable and that they may have been lost due to fire at a government storage facility. In such cases, there is a heightened duty to assist him in developing the evidence that might support his claim, which includes the duty to search for alternative medical records. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). VA records dated in January 2010 show the Veteran was contacted and informed that the service department had been unable to locate additional records and he was advised to provide records in his possession or to provide information for VA assistance in searching alternative sources for evidence to substantiate his claim. It is significant to note, however, that the Veteran's report that he was treated for prostatitis during active service is verified by comments recorded in a February 1955 report of medical examination. The Board finds that further attempts to obtain additional evidence would be futile. The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). For certain chronic diseases (including malignant tumors) service connection may be established on a presumptive basis if they are manifested to a compensable degree in a specified period of time postservice (one year for malignant tumors). 38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. §§ 3.307 , 3.309. Where a veteran is seeking service connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2011). In this case, the available service treatment records includes a February 1955 report of medical examination which noted the Veteran was treated for prostatitis in September 1954 and that he stated he thought he had prostatitis. Clinical evaluations of the prostate and normal genitourinary system were normal. Private treatment records dated in May 2009 show the Veteran had experienced a sudden onset of symptoms of prostate cancer, had his first diagnosis in January 1997, and that he had undergone prostate surgery in 2006. It was noted that the onset of lower urinary tract symptoms had been gradual and had been occurring in a persistent pattern for "(10+)" years. A December 2009 VA examination report noted the Veteran's service treatment records showed he was treated for prostatitis in September 1954 and that he had no history of any infections of venereal diseases. It was noted that a diagnosis of carcinoma of the prostate was provided in January 1987 and that he had recurrent urinary tract infections and underwent cryosurgery. A diagnosis of adenocarcinoma was provided. The examiner noted the Veteran was status post carcinoma of the prostate and that during active service in Europe he had benign prostatitic hypertrophy (BPH), but that it was less than likely that his carcinoma of the prostate was caused by the BPH during service. In statements provided in support of his claim the Veteran reported that he had been treated for prostatitis while on active duty in Germany. An April 2010 statement from a fellow serviceman, E.A., recalled while they were roommates during service in Germany it was evident the Veteran was having urinary tract problems. In his April 2010 notice of disagreement the Veteran asserted that service connection was warranted for prostatitis. Based upon the evidence of record, the Board finds that the persuasive evidence demonstrates a chronic prostate disorder, to include prostate cancer, was not incurred as a result of genitourinary problems experienced in service. The December 2009 VA examiner's opinion is persuasive that the Veteran's present genitourinary symptoms were due to his status post carcinoma of the prostate and that it was less than likely that this disorder was caused by the BPH for which he was treated during active service. There is no evidence indicating that the Veteran experienced symptoms related to a chronic prostate disorder prior to his diagnosis of carcinoma of the prostate in 1997. The Board finds the absence of any evidence of symptoms related to prostatitis or BPH for more than 40 years after service and the normal clinical evaluation of the prostate in February 1955 to be significant. The overall evidence of service is persuasive that a present, chronic prostate disorder was neither incurred in nor aggravated by active service. The Board acknowledges that, generally, claimants are competent to give evidence about what they experience; for example, to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Laypersons are not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Veteran in this case has indicated that he did not believe his prostate cancer was incurred as a result of service and he has not identified any other specific disability or symptom manifestations he believed to have been incurred as a result of service. The Board notes, however, that he is not competent to provide evidence as to whether the prostatitis for which he was treated in service was a chronic disability. In the absence of competent evidence demonstrating a present, chronic prostate disorder other than status post carcinoma of the prostate, the Board finds entitlement to service connection for a prostate disorder is not warranted. When all the evidence is assembled VA is then 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. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for prostate cancer is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs