Citation Nr: 1315775 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 11-11 814A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a disability of the prostate. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from January 1968 to September 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran does not have a chronic prostate disability. CONCLUSION OF LAW Criteria for service connection for a disability of the prostate have not been met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). However, the primary threshold for service connection is a showing evidence of a present disability, and 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 August 2009, the Veteran filed a claim seeking service connection for possible prostate problems as a result of Agent Orange exposure. It is acknowledged that service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Prostate cancer is included in the exclusive list of diseases which are covered by this presumption, but no other prostate disability is covered by the presumption. Id. Service personnel records confirm that the Veteran had service in the Republic of Vietnam and he is therefore presumed to have been exposed to herbicides, such as Agent Orange. However, as will be discussed below, the evidence of record simply does not show that the Veteran has had a chronic prostate disability at any time during the course of his appeal. At his hearing, the Veteran was asked to explain what it was that he was claiming service connection for. His representative noted that the Veteran's service medical records show treatment for urethral discharge, gram negative diplococci, intraductal cyber cells, and pus cells, as well as the taking of malaria medication. It was alleged that the Veteran continued to have urological problems while in Vietnam. The Board does not dispute this testimony, as service treatment records do show that the Veteran was treated for gonorrhea and for possible malaria in service. However, a review of the Veteran's service treatment records does not show that any prostate disability was identified at that time, or at any time during service. Moreover, the Veteran specifically denied any frequent or painful urination, or any blood in his urine on a medical history survey completed in conjunction with his separation physical. No disabilities were found by the Veteran's separation physical. Following service, the Veteran's claims file is void of any post-service medical treatment for a number of years. The Veteran testified that while in Vietnam he had problems with blood in his urine, and he asserted that he had been experiencing some pain since then. He stated that he had been diagnosed by VA as having an irregular prostate and he had a positive PSA, but he acknowledged that prostate cancer had never been diagnosed. The Veteran added that he had to urinate multiple times each night and he stated that he still had some bloody discharge. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has carefully reviewed the Veteran's testimony, but finds that it is simply not supported by the medical evidence of record. For example, while the Veteran stated that he had a positive PSA, his PSA tests were consistently in the normal range (as shown in the chart below). Moreover, while the Veteran has complained of continued pain for years, having to urinate at night, and blood in his stool, at least one medical professional noted in April 2010 that the Veteran appeared to be mixing in all his complaints when queried and was unable to separate out his pending problem issues from other problems he might have occasionally have had. The Board does not dispute that the Veteran has experienced pain over the years, but that fact in no way establishes the presence of a chronic prostate disability, particularly in light of the absence of any specific prostate treatment being provided. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, however, the Veteran has very consistently sought service connection for a "prostate disability". He has not for the most part been complaining about a particular set of symptoms. For example, in his notice of disagreement the Veteran indicated that he was seeking service connection for "prostate cancer" (which his representative has conceded that he does not have). As such, the Board believes that the Veteran's claim does not need to be expanded beyond a prostate disability to encompass symptoms for which he is seeking service connection. The Board has reviewed more than a thousand pages of treatment records for the Veteran's but does not find any support for the proposition that the Veteran has had any disability of the prostate during the course of his appeal. Quite the contrary. VA treatment records show no record of any prostate disability being diagnosed, no prostate medication having been prescribed, and no prostate disability having been listed in the Veteran's medical history. Additionally, PSAs have been conducted throughout the course of the Veteran's appeal, but have consistently been found to be normal (0-4 range): Date POLYSUBSTANCE ABUSE Date PSA December 2002 .70 March 2008 .61 February 2004 .77 September 2009 .48 March 2005 .56 March 2010 .46 March 2006 .50 October 2010 .48 March 2007 .59 In March 2008, the Veteran presented for treatment at the emergency room, and it was suggested that he might have an irregular prostate, although there was no indication what such an assertion was premised upon. It was felt that the Veteran had probably anal fissures without abscess, and a urology referral was recommended. However, no prostate disability appears to have been diagnosed at any follow-up appointment; in September 2008, the Veteran's prostate was found to be smooth; and in August 2010, it was noted that the Veteran's prostate was normal in size, and anodular. In March 2010, the Veteran actually denied any urinary problems, nocturia, hematuria, prostate problems, or incontinence at that time. A CT of the pelvis in April 2010 showed mild enlargement of the prostate gland, but no prostate disability was diagnosed. In April 2011, it was thought that the Veteran's prostate might be enlarged, but without a palpable nodule, but a CT in May 2011 showed the Veteran's prostate to be unremarkable. The Board understands the Veteran's confusion as to why he believes that he might have a prostate disability in that the treatment records do show that a periodic finding of an enlarged prostate was noted, but the prostate subsequently returned to normal, and an acute swelling or inflammation is simply not considered to be a chronic disability. It is true that a swollen prostate might be an indication that something is wrong with the prostate. However, here, despite occasional findings of an enlarged prostate, no prostate disability has been diagnosed and no ongoing prostate treatment is being provided beyond the annual prostate screenings. The fact remains that the Veteran's doctors have been fully aware of his reported symptoms, but have not treated him for any prostate problems and have not diagnosed any chronic prostate disability. If the Veteran had a current prostate disability, logic would dictate that it would be described in the more than 1,000 pages of treatment records that have been generated during the course of his appeal. The fact that no chronic prostate disability has been noted in the treatment records is strong evidence that the Veteran does not have one. As noted, the presence of a current disability is a preliminary threshold that must be established in any service connection claim. Here, the evidence of record as described simply does not show the presence of a prostate disability, and therefore the Veteran's claim is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in September 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and service treatment and personnel records have been obtained, and the Veteran has not alleged receiving any private treatment. Additionally, the Veteran testified at a hearing before the Board. At the Veteran's hearing, he indicated that he was in the National Guard for several years after service until approximately 1980, and there is no indication that National Guard were ever obtained or even any indication that any records would be available. However, here, the Veteran's claim is being denied because there is no evidence of a current disability, not because there is no evidence of any in-service injury. Thus, even if National Guard records from prior to 1980 existed, they could not possibly establish the presence of a chronic disability during the course of the Veteran's appeal, which did not commence for more than 20 years after the National Guard service ended. As such, the Board concludes that the Veteran is not prejudiced by any failure to seek these records. While a VA medical opinion was not provided in this case, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). Here, the Veteran's representative has implored the Board to schedule the Veteran for a VA examination. However, having reviewed the record, the Board has not found any suggestion in the thousand pages of VA treatment records to suggest that the Veteran has a disability of the prostate. PSA testing was consistently normal and no prostate disability has been diagnosed. This is so, even though the Veteran has relayed all of the physical symptoms he experiences to his doctors. These are the same symptoms which the representative is requesting the Board remand for a medical professional to examine. Given the fact that the Veteran's doctors have not diagnosed any prostate disability based on these same reported symptoms and the fact that no prostate specific treatment is being rendered, the Board concludes that a remand for an examination would be entirely redundant and a remand is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a chronic prostate disability is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs