Citation Nr: 1315871	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  09-06 846A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for a prostate disorder.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

N. L. Rippel, Counsel





INTRODUCTION

The appellant is a Veteran who served on active duty from October 1967 to November 1970, to include service in the Republic of Vietnam from April 1968 to April 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA).

The matter was remanded by the Board to the Appeals Management Center (AMC), in May 2012 and January 2013.  It has been returned to the Board for appellate review.


FINDING OF FACT

The Veteran does not have prostate cancer; the prostate disorder present, benign prostatic hypertrophy (BPH), was not present in service and is not etiologically related to service to include the Veteran's presumed exposure to herbicides during service.


CONCLUSION OF LAW

A prostate disorder, diagnosed as BPH, was not incurred in or aggravated by active service.  38 U.S.C.A. §§  1110, 1116 (West 2002); 38 C.F.R. §§  3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking service connection for a prostate disorder.  The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence.

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant."  See 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")."  Id. at 121.

The timing requirement enunciated in Pelegrini applies equally to the disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Here, the Veteran was provided VCAA notice, to include notice with respect to the disability-rating and effective-date elements of the claim, by letter mailed in November 2007, prior to the initial adjudication of his claim.

The Board also notes that service treatment records have been obtained, as well as pertinent VA and private medical records.  The Board sought records from an identified treating source, Dr. S., but no records were received.  The Veteran was notified that no records were received but has not provided any alternate or additional sources of information.  Moreover, the Veteran has been afforded an appropriate VA examination and an addendum has been obtained from the physician who conducted that examination.  As the examination was conducted by a physician who reviewed the claims folder, completed a thorough examination and provided conclusions based upon a stated rationale, it is adequate.

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate his claim.  The Board is also unaware of any such evidence. 

Accordingly, the Board will address the merits of the claim.

Legal Criteria

Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Additionally, service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) . 

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, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) .

Where a Veteran served for at least 90 days during a period of war and manifests a malignant tumor to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Moreover, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  The last date on which such a veteran shall be presumed to have been exposed to a herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era.  "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii).

If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).

Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom.  Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).  See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).  Thus, presumption is not the sole method for showing causation.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54.

Analysis

The evidence shows and the Veteran does not dispute that the diagnosed prostate disorder, BPH, was neither present in service nor until years thereafter.  It is the Veteran's contention that he has a prostate disorder caused by his exposure to Agent Orange during his service in the Republic of Vietnam.  The Veteran's service personnel records confirm he served in Vietnam during a time in which exposure to herbicides is conceded.  However, the claimed disability is not subject to presumptive service connection on the basis of herbicide exposure.  Moreover, there is no competent evidence of record suggesting that the currently diagnosed BPH is related to his exposure to herbicides or otherwise related to service.  Rather, there is competent, uncontroverted medical opinion evidence that the current disability is not related to service in any way.  

Inasmuch as VA regulations provide presumptive service connection for prostate cancer for Veterans who served in Vietnam as the Veteran did, the preponderance of the evidence shows that he does not have prostate cancer.  Specifically, VA treatment records dating from September 2007 reflect that the Veteran has a 3 year history of BPH.  BPH was noted on evaluation at that time and it was described as being treated by a private doctor with Flomax and Avodart.  Elevated PSA was noted and recorded as 10.60 in October 2008.  Biopsy was reportedly negative and he was scheduled for repeat biopsy in another month.  

The Veteran was afforded a VA genitourinary examination in June 2011.  The examiner indicated that the Veteran previously had PSA readings of 10.60 and 13.70.  The examiner gave a diagnosis of prostate cancer.  However, the examiner then recorded that the Veteran had three or four biopsies of the prostate and had no documented history of prostate cancer or residuals of prostate cancer.  He concluded by noting there were no residuals of prostate cancer to report.  

The Veteran was afforded another VA male reproductive examination in May 2012 by an examining physician who reviewed the claims folder.  The examiner diagnosed BPH.  He noted a history of 3 negative prostate4 biopsies and treatment with Avodart and Flomax for BPH.  PSA was 6.0 and a negative prostate biopsy in September 2009 was noted.  The examining physician noted that the Veteran does not and has never had prostate cancer.  

In March 2013, the VA examining physician rendered an addendum to the May 2012 examination report.  He stated that the Veteran's prostate diagnosis was BPH, and noted that the Veteran does not have prostate cancer.  He opined that it was less likely as not that the current prostate disorder, BPH, was due to service injury, event or illness.  The examiner explained that the Veteran does not have and never had prostate cancer.  He noted known elevated PSA with 3 benign prostate biopsies.  As to the diagnosed BPH, he explained there is no specific etiology for BPH, but noted it is part of the natural aging process and is commonly seen in this age group.  It is less likely as not that the identified prostate disorder of BPH was incurred in or aggravated beyond the natural progression of the disease by active service.  

The Board finds a preponderance of the evidence to be against the Veteran's claim for service connection for prostate disorder.  First, the medical record establishes that the Veteran does not have prostate cancer.  Thus, the preponderance of the evidence is against a finding of prostate cancer.  The May 2012 VA examination and the addendum unequivocally find, based on uncontroverted medical evidence, that the Veteran does not have prostate cancer.  As such, he is not entitled to service connection for prostate cancer on either aforementioned presumptive bases, including the presumption of exposure to herbicide.  

Furthermore, while the record reflects a current prostate diagnosis, it does not reflect that any such disability is related to the Veteran's period of service.  The March 2013 addendum reflects the physician's opinion that the current BPH is not etiologically related to service but instead is likely related to aging.  The Veteran has not presented any contrary evidence.  

The Board also acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  The Veteran is certainly competent to say he suffers from symptoms of the prostate.  Here, however, the question of diagnosis and causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.

Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions.  Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another.  Wray v. Brown, 7 Vet. App. 488 (1995).  An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

In this case, the opinion contained in the May 2012 report and March 2013 addendum are competent, persuasive and probative opinions against the claim, and are uncontroverted by any competent evidence.  These opinions, wholly against the claim, are adopted by the Board.  Accordingly, the Board must conclude that the preponderance of the evidence is against this claim and as such, the claim must be denied. 


ORDER

Entitlement to service connection for a prostate disorder is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs