Citation Nr: 1307294 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 05-35 691 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for a prostate disorder, to include prostate cancer due to herbicide exposure. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a left knee disability, to include as secondary to residuals of a left ankle injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active service from May 1967 to February 1971. These matters come before the Board of Veterans' Appeals (Board) from an August 2004 RO decision. The Board remanded the appeal for further evidentiary and procedural development in January 2011. Such development has been accomplished. In March 2009, the Veteran presented sworn testimony in support of his appeal during a hearing before another Veterans Law Judge. A transcript of that hearing is of record, and has been reviewed. The Veterans Law Judge who presided over the March 2009 hearing is unable to render the Board's final decision, however. Therefore, the veteran was offered the opportunity to have a second hearing on the same matters before a different Veterans Law Judge in a December 2012 letter. The veteran responded in the same month, indicating that he did not desire a second hearing and requesting that the Board proceed with a decision on his appeal. The Veteran's claim for service connection for post-traumatic stress disorder (PTSD) was previously before the Board in January 2011. Based upon the development requested by the Board, the claim was granted in May 2012 decision. This grant represents a complete resolution of the appeal as to that issue. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). If the Veteran desires to challenge the disability rating or the effective date assigned to the impairment resulting from his PTSD, he is required to file a timely notice of disagreement with the May 2012 RO decision, or alternatively, a claim for entitlement to an increased disability rating. We note that he was so informed in an August 2012 letter. The Veteran submitted a packet of new documentary evidence in December 2012. This evidence has not been reviewed by the RO. Careful review of it, however, reveals that all the new evidence pertains to claims which are not before the Board at this time. Therefore, no prejudice accrues to the Veteran by the Board's proceeding with a decision on the claims reflected on the title page. The newly-received evidence will be reviewed in due course along with the rest of his claims file when the RO adjudicates the new claims. The Veteran has raised claims for entitlement to service connection for throat cancer, a right knee disorder, ischemic heart disease, high blood pressure, and "bundling" in his heart. These claims have not yet been addressed by the RO. Therefore the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's currently-shown benign prostatic hypertrophy and chronic prostatitis are unrelated to the episode of acute gonorrheal urethritis he underwent in service; no other connection to service is shown. 2. The Veteran does not have prostate cancer. 3. The Veteran's left knee and left ankle were normal upon discharge from service; and arthritis was not shown within one year of service; no other connection to service is shown. 4. The Veteran's currently-shown left knee disability is unrelated to the small abrasion to the knee that he sustained during service. CONCLUSIONS OF LAW 1. Service connection for a prostate disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for a left ankle disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. This information was provided in May 2004. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This information was provided in a March 2006 letter. With regard to the VA examination reports which are of record, 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 the VA examinations obtained in this case are adequate with regard to the issues decided herein. The examination reports relied upon herein were predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disability at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. 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). Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Service treatment records, VA medical records, Social Security disability records, private treatment reports, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of 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; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in the line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a chronic disease such as arthritis becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Regulations pertaining to Agent Orange exposure, which includes all herbicides used in Vietnam, provide that if a veteran served on active duty in Vietnam during the Vietnam era, the veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including some types of cancer, for which service connection may be presumed due to an association with exposure to herbicide agents. Prostate cancer, but no other disease or disorder of the prostate, is included among these diseases. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The Court has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to disease or injury in service, service connection requires competent medical evidence of a current disability. Degmetich v. Brown, 104 F.23d 1328 (1997). A prostate disorder, to include prostate cancer The Veteran is claiming service connection for a prostate disability, to include prostate cancer as due to herbicide exposure. Although the Veteran was treated for a sexually-transmitted disease during service, his genitourinary system was deemed to have been normal upon the general medical examination conducted in February 1971 prior to his discharge from service. Recent medical evidence reflects diagnoses of prostatitis and benign prostatic hypertrophy. A March 2012 VA urological examination was conducted. According to the report of this examination, the Veteran has two current disabilities involving his prostate gland: chronic prostatitis, and prostate hypertrophy, for which a transurethral incision of the prostate gland was performed in October 2005. He also has erectile dysfunction. Prostate cancer was not diagnosed. The examiner reviewed the Veteran's service treatment records and provided the following interpretation of the information in the service treatment records and their significance as to the Veteran's claim for service connection: The Veteran was seen [in 1969] with complaints of urethritis-he was diagnosed with urethritis due to gonococcus; he was prescribed Penicillin and Benemid. ... This was an acute gonorrhea infection cured by antibiotics, which he was prescribed. He had subsequent serial syphilis tests done [in 1969, and twice in 1970] which were all non-reactive (normal). This sexually transmitted infection is unrelated to chronic prostatitis and benign prostatic hyperplasia, which the Veteran developed in 2003. The Board finds this informed medical opinion to be persuasive and dispositive in this case. In comparing the Veteran's contentions to the VA examiner's conclusions, the VA examination report is simply based upon greater medical expertise. Although there is no categorical requirement of " 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,' " more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury, in service." Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Id. Further, if the disability is of the type for which lay evidence is competent, the Board must then weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed.Cir.2006). In this case, the VA examiner clearly explained that the urethritis caused by a gonorrhea infection during service was acute and resolved upon appropriate treatment without any residual disability. This conclusion is buttressed by the normal clinical findings upon the discharge examination report. The examiner further explained that the gonorrheal urethritis in service was unrelated to the prostatitis diagnosed more than thirty years later. These conclusions are supported by medical expertise, and the Board therefore holds that the Veteran, as a layperson, does not have the necessary expertise to present a contrary opinion which would carry greater weight than the informed and well-explained, expert opinion presented by the VA examiner in this case. There is no indication that the Veteran's benign prostatic hypertrophy is related to service in any way, as it was initially manifested many years after service, with no other connection postulated or shown. We therefore hold that the preponderance of the evidence is against a finding of service connection for any currently-shown disability of the prostate. As the Veteran fortunately does not have prostate cancer, there can be no valid claim for this disease. Brammer, 3 Vet. App. at 225. If he were to develop this disease in the future, he may re-file for service connection without prejudice. Left ankle and left knee The report of the general medical examination conducted in December 1966 prior to the Veteran's entrance onto active duty reflects that he had a scar on his left ankle at that time. No further information is provided on the report, although his feet and lower extremities were deemed to have been normal upon clinical examination. A clinical record dated in January 1969 shows that the Veteran had been riding his bike when he lost control, hitting his right tibia on a rock and abrading his left patella. The X-ray report is also of record, reflecting that images of both the right tibia and the left patella were taken and interpreted as normal, with no fractures noted. Upon the general medical examination conducted in February 1971 prior to his discharge from service, his feet and lower extremities were deemed to have been normal. Since that time, the Veteran underwent several surgical procedures on his left knee, culminating in a total knee replacement in 2006. He asserts that his progressive arthritis and eventually the knee replacement had its inception with the biking injury in 1969. In support of this assertion, he submitted a December 2008 from a surgeon who indicated that he performed three arthroscopic surgeries on the Veteran's left and right knees. The surgeon also stated that the Veteran's "Navy medical service heath records" were reviewed with reference to the injury he received in service and that "it's likely than not that these injuries have contributed to [the Veteran's] current condition of his knees to date." As noted by the Board in the 2011 remand, however, there is no supporting rationale for this opinion. Examination reports are inadequate unless they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. The Veteran underwent a VA orthopedic examination in March 2012. The examiner reviewed the Veteran's claims file, including his service treatment records and the medical records pertaining to his more recent arthritis, and conducted a clinical examination. The examiner interpreted the Veteran's service treatment records as showing that in 1969 the Veteran sustained a skin-deep injury to his left knee only, without bone or joint involvement, as evidenced by the normal X-ray study taken at that time. The examiner then rendered the opinion that the Veteran's current left knee disability was less likely than not incurred in or caused by the biking injury in service. "It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In the present case, the Board finds that the rationale offered by the VA examiner is reasonable, well-explained, and clearly based upon the Veteran's service treatment records and claims file. We therefore accord greater probative weight to the VA examiner's opinion than to that put forth by the Veteran's surgeon, as the surgeon's opinion failed to include a detailed rationale for the provided conclusion, and failed to account for the other medical evidence, to include the in-service X-ray of the knee, which was contrary to the claim. The Veteran's left knee and ankle were normal at discharge from service, and there is no indication of arthritis within one year of service or for many years after. This prolonged period without medical complaint weighs against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, service connection based upon service incurrence or based upon a legal presumption of arthritis as having been incurred during service must be denied. Furthermore, the preponderance of the evidence is against a finding of any other connection to service as to the currently-shown left knee disability and any current left ankle disability. The appeal therefore must be denied. ORDER Service connection for a disorder of the prostate, to include prostate cancer, is denied. Service connection for a left ankle disability is denied. Service connection for a left knee disability is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs