Citation Nr: 1308352 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 06-06 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a prostate disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to March 1970, including service in the Republic of Vietnam. He received the Army Commendation Medal and Bronze Star Medal. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for a prostate disability. Jurisdiction over the Veteran's claim has remained with the RO in Boston, Massachusetts. The Veteran testified before the undersigned at a December 2007 hearing at the RO (Travel Board hearing). A transcript of that hearing has been associated with his claims folder. This case was remanded in April 2008, December 2010, and March 2012 for additional development. The Board notes that, in addition to the Veteran's claims file, 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 as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. FINDING OF FACT The Veteran is not currently found to have a prostate disability that is a result of military service. CONCLUSION OF LAW A prostate disability was not incurred in or aggravated by the Veteran's active military service, nor is such disability presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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). VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Letters dated in December 2004 and December 2007 satisfied the duty to notify requirements of the VCAA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letters notified the Veteran of the evidence and information necessary to substantiate his claim and informed the Veteran of his and VA's respective responsibilities in obtaining that evidence. The 2007 letter was provided after the initial adjudication of the claim, but the timing deficiency was cured by readjudication of the claim in subsequent supplemental statements of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) In addition to the foregoing, the Board observes that the Veteran's service treatment records, and VA and private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has also been provided with a VA examination. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified. There was a discussion of possible evidence that could substantiate the claims. Questioning at the hearing resulted in the remand for efforts to obtain additional records and included discussion as to the missing evidence that could substantiate the claim. The Bryant requirements were thereby complied with. The April 2008 remand was for efforts to obtain records of treatment at the Springfield, Massachusetts VA outpatient clinic (OPC); the December 2010 remand was for efforts to obtain records from the Springfield VA OPC and Northampton (Leeds) VA Medical Center. The March 2012 remand was to ask the Veteran and representative to identify additional treatment and examination records. The claims folder, including records in Virtual VA, show that the identified VA treatment and examination records were obtained. The Veteran and his representative did not report additional treatment. This development reflects substantial compliance with the Board's remands. See Stegall v. West, 11 Vet. App. 268 (1998) II. Analysis Service connection may be granted for a disability resulting from 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. 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 or in service and at any time thereafter. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection is provided on a presumptive basis for prostate cancer manifested in a Veteran exposed to herbicides. A Veteran is presumed to have been exposed to herbicides if he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116 (West 2002). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally 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 claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service treatment records do not indicate that the Veteran had any complaints or treatment for a prostate condition. After service, the Veteran was provided a VA examination dated in March 2005. The Veteran reported complaints of urinary frequency. He was also indicated to have weakness and urgency. The Veteran was noted to require no procedures for his genitourinary problem. On examination, the Veteran was found to have a slightly enlarged prostate with no masses. The Veteran reported that he had been examined for prostate cancer and was negative. The examiner did not render a diagnosis in connection with the Veteran's complaints. The Veteran was also evaluated in August 2012 and all findings referable to his prostate were normal. Finally, the Board has reviewed the Veteran's outpatient treatment records and has found no diagnosed disability related to the Veteran's prostate. In this regard, the Board notes that the Veteran had elevated PSA in 2007 when he had an episode of epididymitis, and that he has been followed in the VA urology clinic for PSA testing. However, no prostate disability has been identified. In this regard, the Board notes that the Veteran's representative submitted a February 2012 statement in which the Veteran reported that he had recently seen his doctor and was informed that his PSA levels had decreased and the he did not have prostate cancer Based on the foregoing, the Board finds that entitlement to service connection for a prostate disability is not warranted in this case. A review of the Veteran's records does not indicate that the Veteran has been diagnosed with a prostate condition. And as noted above, the existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board notes that the 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 the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the medical evidence, to include the findings of the March 2005 VA examiner, does not support a finding of a prostate disability. In addition, the Board notes that the Veteran has contended on his own behalf that he has a prostate condition and that it is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's condition is a complex medical question, beyond the competency of a layperson. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such complex medical questions. In summary, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has had a prostate disability at any time since filing the current claim for service connection. Because the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a prostate disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs