Citation Nr: 1306735 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-41 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for postoperative residuals of prostate cancer. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from September 1991 to March 1992 and from January 2004 to March 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut, that-in pertinent part, denied entitlement to service connection for postoperative residuals of prostate cancer. The May 2009 rating decision also denied service connection for traumatic brain injury (TBI), and the Veteran also perfected an appeal of that determination. In an April 2012 rating decision, the Appeals Management Center (AMC) in Washington, DC, granted service connection for TBI as an associated part of the service-connected posttraumatic stress disorder symptomatology and continued the assigned 40 percent rating. There is no indication in the claims file that the Veteran appealed the initial rating. Hence, any issue related to the TBI claim is not before the Board and will not be discussed in the decision below. See 38 C.F.R. § 20.200 (2012). In April 2010, the Veteran testified at a Board hearing at the local RO (Travel Board hearing) before a Veterans Law Judge (VLJ) no longer employed at the Board. A May 2012 Board letter informed the Veteran of this fact and inquired if he desired another hearing before the VLJ who will decide his appeal. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). There is no record of a response from the Veteran. Nonetheless, in light of the fact the Board allows the benefit sought on appeal, the Board deems the issue moot. A copy of the transcript of the May 2010 hearing is associated with the record. In November 2010, the Board remanded the case to the RO via the AMC in Washington, DC. The AMC completed the additional development as directed, granted the TBI claim, as noted earlier, continued to deny the prostate cancer claim, and returned the case to the Board for additional appellate review. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. FINDING OF FACT The Veteran's prostate cancer had its clinical onset during active service and he has current residuals of treatment for that disease. CONCLUSION OF LAW The requirements for entitlement to service connection for prostate cancer have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as the Board allows the benefit sought on appeal, no further notice or assistance is needed to aid him in substantiating the claim. VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 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); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Analysis The record reflects that the Veteran was diagnosed with prostate cancer in January 2009. At his Travel Board hearing, he testified that, in 2004, laboratory tests showed signs of prostate cancer. He also began having other symptoms during that time, such as leakage. The Veteran submitted additional private medical records, which show that he reported "dribbling after urinating" in October 2004, when he was on active duty. There are additional lab results dated in October 2004 associated with this set of records. In March 2011, a VA examiner indicated that, based on the Veteran's experiencing active urinary incontinence symptoms while on active duty and a subsequent diagnosis of prostate cancer and erectile dysfunction after service, and slow growing course of prostate cancer, it was "unlikely as not" that the prostate cancer was directly related to military service. The Board deemed it unclear from the examiner's opinion why in-service urinary incontinence and the slow growing nature of the disease would weigh against service incurrence. It was also unclear whether the 2004 laboratory findings were of any significance. In view of these concerns, the Board requested a specialist opinion from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901(a) (2012). VHA assigned the claims file to an oncologist, W.B.H., M.D., for review and an opinion. In his November 2012 opinion, Dr. H noted that he had reviewed the entire claims file. He also noted that his review did not reveal the pathology report that confirmed a diagnosis of prostate cancer. Dr. H noted, instead, clinical records that showed a Gleason score of 6 after the Veteran underwent a robot-assisted prostatectomy at a hospital. Other records noted an unsuccessful attempt at a prostatectomy in March 2009, and a June 2009 neurology outpatient clinic note indicated robotic prostatectomy was performed five weeks earlier. Dr. H noted the documentation of the Veteran's lower urinary tract symptoms while he was on active duty. Dr. H opined that, considering the frequent indolent rate of growth of early stage prostate cancer, the presence of early stage prostate cancer less than four years after discharge, there was at least a 50 percent probability that the Veteran's prostate cancer is causally connected to the symptoms he exhibited while in active service. The Board that must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes the contrary opinion of the VA examiner who conducted the March 2011 examination. The Board finds, however, that the examiner did not provide a clear and full rationale for the opinion. See Black v. Brown, 10 Vet. App. 279 (1997) (an opinion may be reduced in probative value even where the statement comes from someone with medical training, if the medical issue requires special medical knowledge). Dr. H is an oncology specialist, and the Board finds his opinion more persuasive. The record shows a current disability namely the absence of the Veteran's prostate as a residual of treatment for prostate cancer. The record also demonstrates pertinent symptoms in service. Dr. H's opinion provides a direct causative nexus between the Veteran's post-service diagnosed prostate cancer and his in-service symptoms. 38 C.F.R. § 3.303. The requirements for service connection are thus satisfied and the appeal is granted. ORDER Entitlement to service connection for postoperative residuals of prostate cancer is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs