Citation Nr: 1301678 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-21 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a prostate disorder, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. The Veteran's claim first came before the Board in April 2012, at which time it was remanded for further development. The requested development has now been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the appellant's physical claims file and also the electronic Virtual VA file. FINDING OF FACT The Veteran does not have prostate cancer and his prostate disorder did not have its onset in service and is not otherwise related to service, to include exposure to herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for a prostate disorder, to include as due to exposure to herbicides, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was met by way of letters from the RO to the Veteran dated in July 2007, September 2007, August 2008 and April 2012. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and has not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of her appeal. The Veteran has been afforded a VA examination on the issue under review during the course of his appeal. The reports from those examinations reflect that the examiners reviewed the Veteran's medical records, recorded her current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Finally, there has been substantial compliance with the Board's April 2012 Remand directive. The RO/AMC obtained the Veteran's Social Security records and a supplemental VA opinion as directed. The RO/AMC contacted the Veteran in April 2012 and asked him to identify or submit additional evidence; however, he did not respond to the letter. II. Analysis The Veteran has claimed entitlement to service connection for a prostate disorder. In general, service connection will be granted for a disability resulting from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). The relevant evidence of record includes service treatment records, VA treatment records, private treatment records, records from the Social Security Administration and written statements from the Veteran. The Veteran's service treatment records are entirely negative for any diagnoses or findings related to any type of prostate disorder. VA treatment records from 2004 show treatment for urinary stricture with a diagnosis of benign prostatic hypertrophy. The Veteran was afforded a VA examination in February 2008 in connection with his claim. Physical examination revealed an enlarged prostate. The examiner noted that the Veteran had an elevated PSA, but that there was no diagnosis of prostate cancer. He stated that the Veteran's benign prostate hypertrophy was not caused by or a result of exposure to Agent Orange in service, noting that the relevant literature did not indicate an association. Records from August 2008 indicate that the Veteran underwent a prostate biopsy. Prostatitis was shown, but there was no finding of prostate cancer. Subsequent treatment records from 2009 show continued treatment for prostatitis, but do not indicate that the Veteran has a diagnosis of prostate cancer. The Veteran was urinating well without difficulty. The evaluating provider did note that the Veteran's PSA rates had increased, and that prostate cancer could not be completely ruled out, but noted that the Veteran's PSA numbers responded to antibiotics consistent with prostatitis. In April 2012 the Veteran's file was reviewed by a VA examiner. The examiner determined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, noting that there was no evidence of prostatitis during service. The examiner did note that the Veteran complained of urinating blood during service in December 1966, but found that there were no other records of recurrent genitourinary symptoms. He observed that the Veteran's separation physical noted that the Veteran had been treated for venereal disease and that it had cleared without complications. The examiner also noted that there was no other evidence of genitourinary symptoms until long after service, and that records from July 1999 noted normal prostate and PSA. He noted that benign prostate hypertrophy was first noted in September 2000 by the Veteran's private urologist. The examiner found that the Veteran did not have a diagnosis of prostate cancer and that the Veteran's chronic prostatitis did not begin during service and that it was unlikely related to his in-service hematuria, as gross hematuria is not a sign of acute prostatitis. The examiner also concluded that the Veteran's prostatitis was unrelated to Agent Orange exposure, noting that there was no known study in the medical literature supporting the Veteran's contention that there is such a relationship. Records received from the Social Security Administration do reference treatment for a prostate disorder, but do not indicate any etiological connection between the Veteran's prostate disorder and his period of service, including exposure to herbicides. First, the Board notes that the Veteran has asserted that his prostate disorder was caused by exposure to herbicides in service. For the purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. 38 C.F.R. § 1116(f). The Veteran's service record indicates that he served in Vietnam during the applicable period and herbicide exposure is conceded. The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during service, even if there is no record of such during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). The evidence does not indicate that the Veteran has been diagnosed with prostate cancer, and benign prostatic hypertrophy is not one of the disabilities listed in 38 C.F.R. § 3.309(e) for which service connection can be granted on a presumptive basis based on exposure to herbicides. Accordingly, service connection cannot be granted on a presumptive basis. Moreover, after a thorough review of the entirety of the evidence of record, the Board finds that entitlement to service connection cannot be granted on a direct basis. As noted above, establishing service connection on a direct basis requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. The Veteran's claim fails with respect to the third element, the requirement for a nexus between a current disability and an in-service incurrence or injury. The Board notes that there is no probative evidence that the Veteran had any type of prostate disorder or any symptoms of a prostate disorder during service. In addition, the Veteran has presented no medical evidence showing a relationship between his current prostate disorder and his period of service, including his presumed exposure to herbicides. The only medical evidence regarding etiology consists of VA examination reports indicates that the Veteran's condition is not related to his period of service, to include exposure to herbicides. The Board has considered the Veteran's assertions and acknowledges that the Veteran is competent to testify as to symptoms which are non-medical in nature or which come to him through his senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, individuals without training are not competent to provide evidence as to more complex medical questions. The Veteran is not shown to have medical training and expertise, and so cannot provide a competent opinion on a matter as complex as the existence of a specific disorder affecting his prostate or a relationship between any specific prostate condition and exposure to herbicides in service. Even according the Veteran's assertions some probative value, they are outweighed by the objective medical evidence indicating that the Veteran does not have prostate cancer and that his benign prostatic hypertrophy is not related to herbicide exposure. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a), and the Veteran was clearly advised of the need to submit medical evidence of the existence of the claimed disability and a relationship between that disability and his period of service. The Board has considered application of the benefit-of-the doubt doctrine under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. The most persuasive and probative evidence of record fails to demonstrate that the Veteran has prostate cancer or that his benign prostatic hypertrophy began in or is otherwise related to his period of active service, to include presumed exposure to herbicides. In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for a prostate disorder. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection for a prostate disorder is not warranted. ORDER Entitlement to service connection for a prostate disorder is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs