Citation Nr: 1316277 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 11-22 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from November 1957 to November 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In January 2013, the Veteran withdrew his request for a Board hearing. In February 2013, additional VA treatment records were associated with the electronic Virtual VA claims file. A waiver of RO consideration of this evidence was received in a written statement from the Veteran's representative dated in February 2013. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDING OF FACT The Veteran does not have prostate cancer that is attributable to his active military service or to his service-connected prostatitis. CONCLUSION OF LAW The Veteran does not have prostate cancer that is the result of disease or injury incurred in or aggravated by active military service; prostate cancer is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the Veteran was provided VCAA notice in a February 2011 letter, advising him of what information and evidence is needed to substantiate his claim for service connection, including on a secondary basis, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter included information regarding how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in November 2011. The Veteran has received the required notices and has had a meaningful opportunity to participate in the development of his claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of the VCAA. The evidence of record contains the Veteran's service treatment records, VA and private treatment records, VA examination reports and medical opinions, medical articles, and lay statements and hearing testimony. The examination and opinion evidence provides the information necessary to decide the claim. There is no indication of relevant, outstanding records that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue being decided on appeal. II. Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Service connection may also be established if the evidence of record shows that a chronic disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that he has prostate cancer secondary to his service-connected prostatitis disability. Service treatment records are silent for complaints, findings, or diagnosis of prostate cancer. (Service treatment records do reflect diagnosis of prostatitis, and service connection has been established for prostatitis.) Post-service private treatment records reflect that the Veteran was diagnosed with prostate cancer in December 2010 and he underwent a laparoscopic radical prostatectomy and bilateral pelvic lymph node dissection with robotic assistance in February 2011. In support of his December 2010 claim for service connection, the Veteran submitted an abstract of a study considering whether prostatitis is a risk factor for prostate cancer; the conclusion was that "[i]nfection in the form of acute or chronic bacterial prostatitis may be associated with prostate cancer. However, [the] data do not provide compelling evidence to support this." Another article he submitted listed various studies and conclusions regarding aspects of the question as to whether prostatitis leads to prostate cancer. In February 2011, a VA physician reviewed the Veteran's claims file, including a recent VA genitourinary examination report, which outlined the Veteran's history of chronic prostatitis. The physician opined that the Veteran's prostate cancer was less likely as not caused by or the result of chronic prostatitis. In support of his conclusion, the physician explained that there are multiple risk factors for prostate cancer with advancing age having the strongest correlation. Other risk factors include diet, obesity, ethnicity, and genetics. He also reported that studies had shown a higher rate of prostate cancer in individuals with chronic prostatitis, but it was believed that this was the result of more of these individuals being biopsied. He added that there was no medical evidence of a cause and effect relationship between prostatitis and prostate cancer. He cited 159 medical studies in support of his conclusion. In July and August 2011, the Veteran submitted additional articles about prostatitis, benign prostatic hyperplasia (BPH), and prostate cancer. The articles, which included two published by diagnostic or treatment centers, noted an association between prostatitis and prostate cancer, but did not conclude that prostatitis causes prostate cancer. The Veteran's claims file was reviewed by another VA physician in November 2011. The physician opined that the Veteran's prostate cancer was not due to or aggravated by the service-connected prostatitis. Supporting his conclusion, he explained that the Veteran developed prostate cancer and the prostate was removed and showed cancer with no evidence of inflammation in the prostate as would be expected if he had had chronic ongoing prostatitis. He indicated that upon review of the medical literature, there was no evidence to support a link between prostatitis and the future development of prostate cancer. He added that any prostate symptoms, including urinary leakage, frequency, or obstructive symptoms from the time of the prostate cancer surgery forward are not due to or aggravated by the prostatitis since the prostate gland was removed and at the time of the removal he had had no pathological evidence of active prostatitis. Having reviewed the entire claims file, the Board finds that service connection for prostate cancer is not warranted. Service treatment records do not reflect complaints, diagnosis, or treatment for prostate cancer, and the Veteran does not contend that his prostate cancer was incurred in or otherwise directly related to military service. Moreover, competent medical evidence of record reflects that the prostate cancer was diagnosed in December 2010, more than 50 years after separation from service. The passage of many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition to considering the claim for service connection on a direct basis, the Board has considered whether service connection is warranted on a presumptive basis. However, because prostate cancer was first shown many years after separation from service, service connection on a presumptive basis is not warranted. Considering the Veteran's contention that his prostate cancer is secondary to his prostatitis, the Board acknowledges that the Veteran is competent to provide lay evidence of his symptoms, such as urinary problems. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Court and Federal Circuit have addressed the circumstances where lay evidence can/must be considered, both have also addressed where the Board may make findings that the lay statements are beyond the competence of the giver, or that the statements are not credible or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1377 n.4 (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). In this case, the Veteran is not competent to state that his prostate cancer was proximately due to or aggravated by his service-connected prostatitis. The only medical opinions to address the question of whether the Veteran's prostate cancer was caused or was aggravated by his prostatitis are from the February 2011 and November 2011 VA physicians. The Board finds that these opinions are persuasive and probative evidence against the claim of service connection for prostate cancer because each was based on a review of the claims file and supported by an articulated medical rationale that is consistent with the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Here, the physicians identified risk factors for prostate cancer and cited medical studies that concluded there was no cause and effect relationship between prostatitis and prostate cancer. The November 2011 physician also explained that the Veteran's prostatitis did not aggravate the prostate cancer diagnosed in December 2010 because at the time the prostate was removed, there was no evidence of inflammation in the prostate as would be expected if the Veteran had had chronic ongoing prostatitis. The opinions of the VA physicians are more probative than the Veteran's lay assertions and these medical opinions are uncontradicted in the record by any other medical evidence relative to the specifics of this case. In conclusion, the Board finds there is no basis upon which to conclude that the Veteran's prostate cancer is related to military service or to his service-connected prostatitis . See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. Therefore, service connection for prostate cancer is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for prostate cancer is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs