Citation Nr: 1311422 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-07 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include chronic anxiety reaction with psychological gastrointestinal complaints (stomach disability), headaches, and wrist nerve damage. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1966. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 letter determination, as well as from rating decisions dated in December 2007 and November 2008 issued by the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in November 2011. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2011. A transcript of the hearing is associated with the claims file. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. The issue of entitlement to service connection for residuals of a traumatic brain injury (TBI), to include chronic anxiety reaction with psychological gastrointestinal complaints (stomach disability), headaches, and wrist nerve damage is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prostate cancer was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. 2. Diabetes mellitus type 2 was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Diabetes mellitus type 2 was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 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 Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in July 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an August 2011 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the August 2011 Board hearing, the Veteran testified that he was diagnosed with diabetes mellitus in 2002 and he was diagnosed with prostate cancer in December 2007. He stated that his claims for service connection are not claims for presumptive service connection due to Agent Orange exposure. Instead, the claims are for direct service connection due to exposure to an insecticide. The Veteran acknowledged that throughout the 1970s and 1980s, he was not aware of any problems with his prostate or with diabetes, though he may have had signs or symptoms. To his knowledge, he did not have any major family history of diabetes or prostate cancer in his family. The Board service treatment records fail to reflect any findings attributable to diabetes or a prostate disability. Similarly, a November 1972 VA examination fails to reflect any findings attributed to diabetes or a prostate disability. A November 1999 treatment report from the Mid City Health Center reflects that the Veteran had a family history that was significant for diabetes. The Veteran also reported that distant cousins died of colon cancer and stomach cancer. His brother died of prostate cancer. There were no findings attributed to diabetes or a prostate disability in the Veteran at that time. A March 2003 outpatient treatment report in the Virtual VA reflects that the Veteran was concerned that he is "not really a diabetic" and may not need glyburide. An April 2003 outpatient treatment report in the Virtual VA reflects that the Veteran had a problem with diabetes mellitus 2. It also reflects that the Veteran underwent a colonoscopy in August 2000 and had 2 benign polyps removed. In a February 2004 outpatient treatment report, the Veteran reported burning on urination. He stated that he underwent a free prostate examination done at a clinic as part of a health promotion day. The nurse informed him that his prostate was enlarged. The Veteran stated that he had been given medication in the past for prostatitis. As the nurse told him that it is still enlarged, the Veteran sought additional medications. A July 2006 outpatient treatment report in the Virtual VA reflects an assessment of diabetes mellitus 2 and chronic prostatitis. The Veteran underwent transrectal ultrasound needle biopsies of the prostate in July 2007 and December 2007. A December 2007 treatment report reflects that number 1 and 6 prostate biopsies revealed adenocarcinoma, Gleason's Pattern 3-3 (score 6) involving less than 5 percent of the biopsy area. Number 2 revealed adenocarcinoma, Gleason's Pattern 3-3 (score 6) involving 10 percent of the biopsy area. Numbers 3 and 4 revealed high grade prostatic intraepithelial neoplasia (PIN) with no invasive cancer present. Number 5 revealed focal acute prostatitis with no cancer present. A July 2008 note reflects a past medical history of a radical prostatectomy conducted in March 2008. The Veteran underwent several VA examinations in December 2011. The examiner who conducted the prostate cancer examination noted that the Veteran was diagnosed with prostate cancer in January 2008; that the Veteran underwent a radical prostatectomy in March 2008 and that he has had no further treatment other than PSA follow-up. At the time of the December 2011 VA examination, the disease was in remission. The examination report did not include an opinion regarding the etiology of the prostate cancer. The examiner who conducted the examination regarding diabetes mellitus noted that the Veteran was diagnosed in October 2002. The examination report did not contain an opinion regarding the etiology of the diabetes mellitus. However, the examiner submitted a December 2011 addendum in which she noted that she reviewed the claims file. She stated that she could not render an opinion regarding whether it was as likely as not that the Veteran's diabetes mellitus was caused by exposure to Baycon insecticide, without resorting to speculation. She stated that the Veteran was diagnosed with diabetes in 2002; and that diabetes mellitus is associated with exposure to Agent Orange. She stated that to her knowledge, Agent Orange is the only chemical agent associated with diabetes. She was not aware of any association between Baycon insecticide and diabetes. She stated that further research would be required to determine whether the Veteran's diabetes mellitus and prostate cancer were a consequence of exposure to Baycon insecticide, in the same manner as the association with Agent Orange. The Veteran underwent another VA examination in September 2012. The examiner reviewed the claims file in conjunction with the examination. The Veteran stated that he served in the U.S. Coast Guard, but did not serve in the Vietnam War. He stated that he was exposed to Baycon insecticide while stationed in Miami Beach. The service treatment records reflect that he got Baycon in both eyes while spraying the barracks. His eyes were irrigated with Dacriose. The examiner noted that there was no evidence that the Veteran was exposed to dioxin herbicide. The examiner noted literature reflecting that Baygon was introduced in the market in September 1963 as a pesticide against household pests. It contains pyrethroids cyfluthrin, transfluthrin, pralletrin and the carbamate propoxur [baygon] and organophosphorus chlorpyrifos. She noted that dioxin was not shown to be an active ingredient in Baygon. She noted that while there is a link between dioxin exposure and diabetes mellitus, exposure to dioxin was not found in the Veteran's claims file. She noted that data linking diabetes mellitus and exposure to Baygon was absent in the medical literature. Likewise, she found no data establishing a link between exposure to baygon and prostate cancer. Consequently, the examiner found that it was less likely than not that the Veteran's diabetes mellitus 2 and prostate cancer were caused or aggravated by service. The Board notes that the service treatment records reflect that the Veteran was exposed to Baycon, and that the VA examiner referred to it as Baygon. The Board was unable to find any information about Baycon. Instead, all attempts lead to information about Baygon. The Board believes that Baycon was a typographical error and that the Veteran was instead exposed to Baygon. In any event, no information was found linking Baycon to diabetes or to prostate cancer. Analysis The Board notes that there were no findings in the service treatment records attributed to diabetes mellitus or a prostate disability. Moreover, the Veteran has not alleged continuity of symptomatology. Nonetheless, service connection could still be obtained based on initial diagnosis after service under 38 C.F.R. § 3.303(d). In support of his claim for service connection the Veteran states that he was exposed to a pesticide during service. He believes that this exposure may have caused him to develop diabetes mellitus and prostate cancer (in the same way that exposure to Agent Orange has been linked to diabetes mellitus and prostate cancer). At the outset, the Board notes the gap of approximately 36 years between the Veteran's separation from service and a diagnosis of diabetes mellitus; and a gap of approximately 41 years between separation from service and a diagnosis of prostate cancer. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. However, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran has not alleged continuity of symptomatology. As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology. However, if the competent medical evidence indicates that diabetes mellitus and prostate cancer are related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, the VA examiner in September 2012 concluded that the Veteran's diabetes mellitus and prostate cancer were less likely than not related to service because there was no evidence of the Veteran being exposed to dioxin; and because there were no findings in the medical literature evidencing a link between exposure to Baygon and either of the Veteran's claimed disabilities. The Board finds the opinion of the VA physician to be persuasive evidence. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. It was accompanied by a clear rationale. Moreover, no other competent evidence of record refutes that opinion. Finally, the Board notes that the Veteran himself reported a family history that was significant for diabetes mellitus and prostate cancer. The Veteran himself believes that his prostate cancer and diabetes mellitus may be related to service. However, while he is competent to describe symptoms of his disabilities, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). Here, diabetes mellitus and prostate cancer are not simple medical conditions that the Veteran can identify based on mere personal observation, that is, by visual observation or by any other of the senses. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. Additionally, the Board notes that the Veteran's credibility is called into question after having stated that he could not recall any history of diabetes or prostate cancer in his family. This testimony is directly contradicted by the post service treatment records in which he had a significant history of diabetes in the family, and a brother who died of prostate cancer. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claims for entitlement to service connection for prostate cancer and diabetes mellitus type 2 must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for diabetes mellitus is denied. REMAND At his August 2011 Board hearing, the Veteran testified that in June 1966 (one month before being discharged from service) he was thrown off his bike. He fell and hit the ground. He did not completely black out; but he was confused and lay there for a long time. He described it as a "pretty traumatic" accident. He stated that he recently learned that stomach problems, headaches, nerve damage, and anxiety can be symptoms of a TBI. He noted that he had filed claims for all these symptoms in the past; but that he did not connect them to a TBI at the time he experienced them. Nor did the VA assist him in filing a claim for service connection for a TBI. The Veteran acknowledged that his separation examination makes no mention of his bike accident. He testified that he was told in an exit interview that a mention of the injury could delay his discharge, which dissuaded him from mentioning it at that time. The service treatment records reflect that the Veteran was treated for a sore wrist in October 1962; pain in his abdomen (epigastrium region) in April 1964; an irritable colon in August 1964; an irritated stomach from April 1965 to June 1965. His July 1966 separation examination yielded normal findings. On his July 1966 Report of Medical History, he handwrote that he had persistent stomach trouble since April 1964, including chronic pain in his abdomen near epigastrium region. He indicated, by checked box, that he had mumps; chronic or frequent colds; sinusitis; frequent indigestion; stomach, liver, or intestinal trouble; any reaction to serum, drug, or medicine; and car, train, sea, or air sickness. He denied, by checked box, that he had frequent or severe headaches; swollen or painful joints; dizziness or fainting spells; arthritis or rheumatism; bone, joint, or other deformity; neuritis; epilepsy or fits; loss of memory or amnesia; and nervous trouble of any sort. The Board remanded the claim in November 2011 so that the Veteran could undergo a VA examination to help determine whether his chronic anxiety reaction with psychological gastrointestinal complaints (stomach disability), headaches, and wrist nerve damage are due to a TBI allegedly sustained during service. The Veteran underwent several VA examinations. The November 2011 examiner who conducted a psychiatric examination found that anxiety and stomach problems were less likely than not related to service. Likewise, the November 2011 examiner who conducted a neurologic examination found that seizures were less likely than not related to service. However, this examiner provided no rationale for the opinion. A VA examiner who conducted an examination in December 2011 stated that the Veteran had a TBI in 1966. It is unclear how the examiner came to that conclusion inasmuch as there is no documentation of such either in 1966 or anywhere in the service treatment records or post service treatment records. Nonetheless, she opined that it was at least as likely as not that the Veteran's TBI and residuals were due to service. Her rationale was that all of the Veteran's memory symptoms, loss of concentration, and headaches began after the injury and the Veteran still has residuals of memory dysfunction and headaches. The examiner stated that she did not have the claims file available for review. In a September 2012 opinion, the same examiner found that the Veteran experiences migraines that are triggered by post-traumatic headaches. However, the Board notes that the medical history contained in the report is not substantiated by the claims file. The medical history contained in the report states that the Veteran fell off his bike during service; that he went to sick bay; that he was given pain pills; and that he has had headaches daily or every other day since then. The Board notes that this in-service history is not documented in the claims file; and the post service history is directly contradicted by some of the post service treatment records (most notably a July 2006 VA outpatient treatment report in the Virtual VA that reflects that the Veteran reported chronic headaches of 1 year duration (as well as in the past)). The examiner submitted a September 2012 addendum in which she stated that she reviewed the claims file and her opinion remains unchanged. Her addendum simply states that there is sufficient evidence reported in the neurology, sports medicine, and VA practitioner journals about neurological complications of TBI. The Board notes that while it does not dispute that headaches can be a symptom of TBI, the examiner failed to explained how she determined that the Veteran ever sustained a TBI (given that there is no diagnosis of one anywhere in the claims file and the fact that the Veteran's alleged bike injury is not mentioned for more than 40 years after service). The Board finds that the examination reports and opinions expressed by the December 2011 and September 2012 examiner are inadequate. Additionally, the Board notes that despite the numerous examinations, none of the examiners objectively determined whether the Veteran, in fact, sustained a TBI. Instead, the opinions mainly addressed whether individual symptoms were secondary to an alleged TBI. The Board notes that the Veteran has never undergone a CT scan or an MRI of the brain, or underwent any objective test to determine whether his brain has been injured by trauma. In light of the above, the Board finds that a new examination (or examinations) must be conducted (by someone other than the prior examiners) for the purpose of determining (1) whether the Veteran sustained a TBI during service and (2) what, if any, residuals does the Veteran have that are secondary to that service-related TBI. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The RO should schedule a VA examination (or examinations) to determine (1) whether the Veteran sustained a TBI during service and (2) what, if any, residuals are secondary to that service-related TBI. The examiner(s) should note the objective findings used to determine whether the Veteran sustained a TBI during service. The examiner(s) should also note the lay statements offered by the Veteran. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that (1) the Veteran sustained a TBI during service and (2) whether it is at least as likely as not (a 50 percent or greater probability) that disability began during or is causally related to service, to include as a residual of an in-service TBI. The specific residuals attributable to the TBI, if any, should be noted. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs