Citation Nr: 1310311 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-41 340 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for a prostate disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1965 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the RO in Nashville, Tennessee, which denied the Veteran's claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have prostate cancer. 2. The Veteran has a current disability of benign prostate hypertrophy. 3. The Veteran is presumed to have been exposed to herbicides during service. 4. The Veteran's benign prostate hypertrophy is not related to any incident of service, to include herbicide exposure. CONCLUSION OF LAW A prostate disability was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Compliance with the first element requires notice of the five service connection elements: (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. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). A November 2009 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claim in March 2010. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has alleged treatment at the Birmingham VA Medical Center in May 2005. A search of the Birmingham VA Medical Center's records shows that the Veteran had treatment at Birmingham in 2007 and 2008. There is no reasonable possibility of outstanding May 2005 records as there is no entry that he was seen for treatment. The Board finds that the RO has made all reasonable attempts to obtain those records, and that further development would be fruitless. The Board notes that the Veteran does not appear to have been notified of the lack of records; however, notice is only required when non-Federal records are not obtained. See 38 C.F.R. § 3.159(e). The Veteran has identified relevant private treatment records in the possession of the Lexington Family Practice. The RO requested those records in January 2012. The Practice did not respond. An April 2012 report of contact with the Veteran states that he had gone to the business and asked for the records personally. He told the RO that the records had been destroyed as they were over ten years old. All reasonable attempts to obtain those records have been made; further development would be fruitless. The Board notes that the Veteran informed VA that the records were unavailable; therefore, any notice to him of VA's inability to obtain the records is moot based on his actual knowledge of such unavailability. See 38 C.F.R. § 3.159(e). The Veteran has not identified any outstanding relevant records. Review of the record does not suggest that any relevant records remain outstanding. The Board finds that the duty to assist in obtaining records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board concludes an examination is not needed in this case because the only evidence indicating the Veteran's current disability is related to service is his own general, conclusory lay statements. The Board's reasons for finding the Veteran's statements general and conclusory are discussed at greater length below. Either competent lay or medical evidence is required to establish "an indication" that a veteran's current disability is related to the in-service event on which the veteran relies as the cause of his current disability. See Waters v. Shinseki, 601 F.3d 1274, 1277-78 (Fed. Cir. 2010)(holding that generalized, conclusory statements by a veteran are not sufficient to "indicate" that a nexus exists); see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (the "indication" element requires some causal connection between disability and service to be shown by the evidence to trigger the duty to provide an examination). As discussed, the Veteran offers only his own conclusory opinion regarding causation, without providing competent lay evidence derived from personal knowledge or reporting of competent medical evidence. There is no other evidence regarding nexus of record. This is insufficient to satisfy the criteria of 38 U.S.C.A. 5103A(d)(2). See id. As there is no indication of some causal connection by competent lay or medical evidence, an examination is not warranted. See McLendon, supra. Service Connection The Veteran contends that he has prostate cancer as a result of herbicide exposure during service. For the reasons that follow, the Board finds that the Veteran does not have prostate cancer and that his benign prostatic hypertrophy is not related to service, including to herbicide exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims to have prostate cancer which is a type of malignant tumor. Malignant tumors are classified as a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cancer, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran also contends that the cancer is due to his exposure to herbicides while in service. If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). In this regard, it is noted that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Veteran's second DD Form 214 indicates that he had an immediate reenlistment at Vung Tau, Republic of Vietnam. There is no evidence to show that he was not exposed to herbicides in Vietnam. The Veteran is presumed to have been exposed to herbicides. See id. Furthermore, prostate cancers are on the list of diseases presumptively associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The nature of the Veteran's current disability is outcome determinative in this case. The Veteran insists that he has prostate cancer or a condition that should be considered prostate cancer. The Veteran's April 2010 Notice of Disagreement states that he has had a prostate condition which he had been diagnosed with and treated for the previous fifteen years. He stated that all of his doctors including at VA told him that prostate cancer could come at any time if his condition was not treated properly. In his September 2010 VA Form 9, he claimed to have asked doctors at ten different locations whether his condition was the first stage of prostate cancer and all said yes. In a December 2011 statement, he repeated that a VA doctor told him twice he had the first stage of prostate cancer in 2009. With respect to the Veteran's contentions that he has a condition which is prostate cancer, the Board observes that 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence is generally not competent to diagnose forms of cancer. Id., at fn. 4. In this case, he is competent to report that he has been told that he has a condition that could become prostate cancer and that he has the first stage of prostate cancer. Id. While he may be competent to report that he was told he had prostate cancer, he must also do so credibly. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). That a condition may result in cancer is not tantamount to a statement that he has cancer. Logically, the two assertions or reports of diagnoses reflect opposite diagnoses. The report that he has a condition that may result in cancer is a report of a diagnosis that the Veteran does not have cancer currently; the statement that he was told he had cancer is some evidence of diagnosis of cancer. The Veteran's statements reveal some conflation of the two versions of what he was allegedly told. Because he appears to have mistaken some portion of what he was told, this reduces the credibility and probative value of his statements. There is no other lay evidence of record on this point. The weight of the competent evidence of record demonstrates that the Veteran does not have prostate cancer. The medical evidence is uniformly against his report of having prostate cancer. Medical records from 2006 to 2012 from VA and multiple private medical care providers state that the Veteran has benign prostate hypertrophy, and there is no suggestion in the medical records that he may have a prostate cancer at the present. The use of the word "benign" in this context is a medical term of art. The use of "benign" indicates the absence of malignancy. See Dorland's Illustrated Medical Dictionary 211 (31st ed. 2007). Its opposite, "malignancy," would indicate the presence of cancer. Id., at 1114. The medical evidence of record is uniform and extensive. The Veteran has been evaluated repeatedly from 2006 to 2012 and malignancy has not been found. The Board places greater weight on the medical evidence that there is no cancer than on the Veteran's report that his doctors say that he has the first stage of cancer. The Board finds that the Veteran has a current benign prostatic hypertrophy disability, but not a current prostate cancer disability. As a result, the Board concludes that the Veteran does not have a "chronic disease" within the meaning of that term; service connection for a chronic disease is not applicable under 38 C.F.R. § 3.303(b) (based on chronic in service or continuous post-service symptoms) or 38 C.F.R. § 3.309(a) (chronic disease to 10 percent within one year of service). See Walker. Furthermore, although the Veteran is presumed exposed to herbicides during service, benign prostate hypertrophy is not on the presumptive list of diseases associated with herbicide exposure. See 38 C.F.R. § 3.309, supra. The Board will consider direct service connection without the benefit of presumptions of nexus. See Shedden; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds that there is no competent lay or medical evidence of nexus between benign prostate hypertrophy and in-service herbicide exposure. Although the specific date of onset varies between 1993 and 1996, the Veteran's statements are that he began receiving treatment in the 1990's, decades after his separation from service. There is no allegation of lay observable symptoms either present during or since service. He has not offered any evidence that he was told by a medical professional that his prostate hypertrophy was related to any incident of service, including herbicide exposure. His statements are conclusory for lack of any explanation as to his competency to offer such evidence. His service treatment records do not indicate that he had complaints, symptoms, diagnosis, or treatment of prostate disorder during service. His VA and private treatment records do not show symptoms dating to service or any proposed relationship between the prostate disability and any incident of service, whether herbicide exposure or not. As the preponderance of the evidence is against a relationship between the Veteran's current disability and his service, service connection on a direct basis is not warranted. The Veteran not having a chronic disease, a herbicide exposure related disease, or a disability related to his service on direct grounds, there is no remaining legal basis for a grant of service connection. As such, the preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a prostate disorder is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs