Citation Nr: 1310291	
Decision Date: 03/27/13    Archive Date: 04/09/13

DOCKET NO.  10-17 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for prostate cancer.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

J. Meawad, Counsel








INTRODUCTION

The Veteran served on active duty from June 1992 to September 2004.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2011, the Veteran failed to appear for a hearing before the Board.

In November 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA).  In January 2013, the Veteran and his representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument.  The Veteran's representative responded that there was no additional evidence or argument.  


FINDINGS OF FACT

1.  Prostate cancer was not manifested in service or within the initial post separation year.

2.  Prostate cancer is not presumptively due to or shown to be the result of exposure to nonionizing radiation in service and prostate cancer is unrelated to disease, injury, or event in service. 


CONCLUSION OF LAW

The criteria for service connection for prostate cancer are not met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012).


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by letter in December 2007. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. 




Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf.  The notice included the general provisions for the effective date of a claim and the degree of disability assignable. 

As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370   (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112   (2004) (to the extent there was pre-adjudication notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim).

Duty to Assist

VA has made reasonable efforts to identify and obtain relevant records in support of the claim.  38 U.S.C.A. § 5103A. The RO has obtained service records, VA records, and private medical records.   The Veteran was afforded VA examinations. 

An opinion pertinent to the issue on appeal was obtained from a medical specialist from the VHA.  As the opinion was based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, it is adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).   

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 




REASONS AND BASES FOR FINDINGS AND CONCLUSION

This appeal arises out of the Veteran's claim that his prostate cancer is related to his military service.  Specifically, he argues that he was exposed to radiation during service while working as a wideband and satellite technician and that this exposure resulted in his subsequent diagnosis of prostate cancer.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Post-service medical treatment records show that the Veteran had been diagnosed as having prostate cancer.  Therefore, the first requirement for service connection for this claim, the existence of a current disability, is met.  See Hickson, 12 Vet. App. at 253.  

Certain chronic diseases, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 C.F.R. §§ 3.307, 3.309.  Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways.  Ramey v. Brown, 9 Vet. App. 40 (1996).  


First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran.  38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d).  A "radiation-exposed" veteran is one who participated in a radiation-risk activity.  A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites.  38 C.F.R. § 3.309(d)(3).  In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure.  Prostate cancer is not one of the specific diseases.  

Second, other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service.

When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c).  If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311.  See 38 C.F.R. § 3.311(b)(1)(iii).

For purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation.  Prostate cancer is one of those diseases.  38 C.F.R. § 3.311(b)(2).




Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service.  

The Veteran worked as a wideband and satellite technician installing radio antennas, radar, and satellite systems.  TheVHA expert stated that the Veteran was exposed to nonionizing radiation, not ionizing radiation.  As the Veteran was not exposed to ionizing radiation, none of the ionzing provisions apply, including obtaining dose estimate under 38 C.F.R. § 3.311(c).  

Direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  After a careful review of the evidence of record, however, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for prostate cancer.  

The Veteran's service personnel records show that he served in Satellite Wideband and Telemetry Work Center of the 134th Air Control Squadron.  The Veteran's service treatment records are negative for complaints regarding the prostate.  

VA treatment records show that the Veteran was first diagnosed as having an enlarged prostate in September 2007.  A private October 2007 report showed that a biopsy revealed that the Veteran had prostate adenocarcinoma.   The Veteran underwent surgery in March 2008.

There is no competent medical evidence of record showing that the Veteran's prostate cancer had its onset during active service or is related to any in-service disease or injury.  



Private and VA medical treatment records regarding his prostate cancer make no mention of any link between this condition and service.  Furthermore, the VHA expert expressed the opinion that prostate cancer is not related to exposure to nonionizing radiation.  The VHA expert explained that there was no clear link between nonionizing radiation and cancer.  The VHA expert provided a definitive opinion that the Veteran's current disability was not related to exposure to nonionizing radiation during service.  The examiner provided rationale and cited to specific evidence in the file as support for his opinion, and is found to be persuasive.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).

The Board has also carefully considered the Veteran's lay statements in support of the contention that his prostate cancer is related to his military service.  The Veteran, however, has not been shown to possess medical training or expertise.  The objective evidence of record shows that the Veteran was not exposed to ionizing radiation and an opinion as to whether this the Veteran's current residuals of prostate cancer is related to service is not capable of lay observation and requires medical expertise.  See Buchanan, 451 F.3d at 1335; Jandreau, 492 F.3d at 1372; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

In sum, there is no competent medical evidence showing that prostate cancer is related to service or exposure to nonionizing radiation.  As the preponderance of evidence is against the claim; the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b).  38 U.S.C.A. § 5107(b).

ORDER

Service connection for prostate cancer is denied.


____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs