Citation Nr: 1319028 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 06-29 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a prostate disability with dysuria. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to April 1971. He had service in the Republic of Vietnam from February 1970 to March 1971. This matter comes before the Board of veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The claim was last remanded in November 2012. The requested development has been substantially complied with and the claim is ready for appellate review. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDING OF FACT It has not been shown by competent and probative evidence to at least equipoise that the Veteran incurred prostatitis with dysuria in service or that prostatitis with dysuria is attributable to service, including the Veteran's presumed exposure to herbicides. CONCLUSION OF LAW Service connection for prostatitis with dysuria is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in January 2006. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claims, such error was harmless given that the claim for service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed condition. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has obtained the Veteran's service treatment and records, VA records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the etiology of his claimed disability. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. Overall, they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. The most recent VA examination report contains specific rationale for its conclusions, based on these considerations. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Here, however, the Veteran's claimed prostate disability is not listed as a chronic condition under 38 C.F.R. § 3.309(a); thus, the regulatory provisions allowing a claimant to establish continuity of symptomatology do not apply. A veteran is entitled to a presumption of service connection if he is diagnosed as having certain enumerated diseases associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e) (2012). Regulations pertaining to Agent Orange exposure have expanded to include all herbicides used in Vietnam. Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange or similar herbicide. 38 U.S.C. § 1116(f) (West 2002); 38 C.F.R. § 3.313(a) (2012). In this regard, under the authority granted by the Agent Orange Act of 1991, the Secretary of VA specifically determines, based on reports of the National Academy of Sciences (NAS) and other medical and scientific studies, diseases that may be presumed to have been caused by exposure to herbicidal agents. The diseases for which service connection may be presumed due to an association with exposure to herbicide agents consist of chloracne or other acneform diseases consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, cancer of the lung, bronchus, larynx or trachea, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma. 38 C.F.R. § 3.309(e) (2012). The diseases listed at Section 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(6)(ii). Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background Service treatment records are completely silent for any complaints or treatment of anything associated with the Veteran's prostate. Private treatment records of February 2005 note a diagnosis of prostatitis with symptoms of dysuria, urinary frequency and peroneal pain. VA outpatient treatment records of July 2005 note a diagnosis of recurrent prostatitis. In a November 2006 letter, Dr. A. Tijerina, stated that he had been treating the Veteran for prostatitis for many years and the condition is due to his exposure to Agent Orange. In a letter of October 2006, Dr. M. Irvin stated that exposure to Agent Orange more likely than not caused the Veteran's chronic prostatitis with dysuria. The Veteran was afforded a VA examination in March 2009. The examiner noted that the claim file had been reviewed and the service records were completely silent for any complaints of anything related to the prostate. It was noted that the Veteran has had chronic prostatitis with frequent episodes over the years. He has been followed by a urologist and had a cystoscopy in the past. The Veteran reported two to four attacks of painful urination and lower abdominal pain each year. A physical examination revealed a normal size prostate. He was diagnosed with chronic prostatitis. The examiner opined that the condition is not due to service. The Veteran was afforded another VA examination in March 2011. At the time, the Veteran reported problems with urination/prostate for the past 30 years. He reported the condition has been intermittent with remissions. He was diagnosed with prostatitis. Another VA examination was conducted in September 2012 in order to obtain a nexus opinion regarding the diagnosis of prostatitis. The examiner, after a review of the claim file, opined that the condition was less likely than not incurred in or caused by service. He reasoned that prostatitis was developed in or about 1974 and he left military service in 1971. There was no diagnosis of prostatitis, BPH or prostate cancer in service. A final VA medical opinion was obtained in March 2013. The examiner noted she had reviewed the claim file and opined that the condition was less likely than not incurred or caused by service. The examiner noted that service treatment records were silent for prostatitis but there is documentation of prostatitis in 1982. At the same time, the Veteran was diagnosed with condyloma, a sexually transmitted disease. The examiner acknowledged the private physician's opinions but noted there was no rationale accompanying the opinions. She noted that the bulk of the literature does not support the claim that Agent Orange causes prostatitis. She acknowledged the VA recognizes that prostate cancer is caused by Agent Orange, but not prostatitis. She then went on to state that the cause of prostatitis is not known and cited different references which noted different causes for prostatitis. She further noted that there is bacterial and nonbacterial prostatitis. She noted that if he has bacterial prostatitis, the etiology is identified as bacterial and not chemical. If he has chronic non-bacterial prostatitis, which is the most common form of the disease, the exact etiology is not known. She concluded stating that chronic prostatitis is not as likely as not due to or caused by Agent Orange or otherwise incurred in service. Analysis After consideration of the evidence noted above, the Board finds that the preponderance of the competent evidence of record is against a finding of service connection for prostatitis. As the Veteran served in Vietnam, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.313(a). However, the presumptive provisions do not provide for presumptive service connection of the Veteran's prostatitis. See 38 C.F.R. § 3.309(e). While presumptive service connection is provided for prostate cancer, the Veteran has not been diagnosed with prostate cancer. Accordingly, the only remaining means of establishing service connection is through direct service connection. In this regard, the Board acknowledges the Veteran's belief that his prostatitis is attributable to his presumed exposure to herbicides. Although the Veteran is competent to report a history of his lay observations, he is not competent to address the etiological question of whether his prostatitis is attributable to exposure to herbicides as this is clearly a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As the Veteran is not competent to put forth such an assertion, resolution thereof depends on the relative weight to be assigned to the positive opinions evidence of record and the negative VA opinions. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board is mindful of the positive opinions offered by Dr. Irvin and Dr. Tijerina that the Veteran's exposure to Agent Orange more than likely caused his prostatitis with dysuria. However, the physicians provided absolutely no rationale or supporting evidence for their conclusions that prostatitis is attributable to exposure to herbicides. On the other hand, the Board has considered the VA medical opinions of record. In this regard, the Board notes that the opinions of March 2011 and September 2012 are inadequate for appellate review as they do not provide an appropriate rationale. However, the latest VA opinion of March 2013 is based on a review of the entire claims file including consideration of the private physician's opinions. The examiner's rationale is adequate and she particularly explains that the bulk of the literature does not support a finding that exposure to Agent Orange causes prostatitis. She cited several medical sources for the possible causes of prostatitis. Given the VA examiner's thorough review of the claims file and rationale, the Board finds this opinion to be the most probative evidence of record. Owens, supra. The Board has considered the Veteran's own statements as to the date of onset of his prostatitis. Although the Veteran alleged in a written statement that his symptoms began shortly after his return from Vietnam, during his VA examination in March 2011, the Veteran reported problems with urination/prostate for the past 30 years. This would place the onset of his problems approximately a decade following his discharge from service. During the September 2012 VA examination, he reported an earlier onset, but still indicated that it had developed in or about 1974, which is several years after service. Given the varying accounts as to the date of onset of symptoms, and the fact that the one commonality in his reports is that his symptoms began after his return from Vietnam, the Board must conclude that there is no credible lay evidence suggesting on onset of prostate symptoms during active duty. In sum, the Board finds that the evidence preponderates granting the claim. Prostatitis did not first manifest in service. Moreover, and most saliently, the evidence preponderates against finding that prostatitis is attributable to the Veteran's presumed exposure to herbicides. Accordingly, the claim must be denied. Gilbert, supra. ORDER Service connection for prostatitis with dysuria is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs