Citation Nr: 1319834	
Decision Date: 06/19/13    Archive Date: 06/27/13

DOCKET NO.  07-16 310	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for an enlarged prostate. 


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket.  38 C.F.R. § 20.900(c) (2012).  

The Veteran served on active duty with the United States Navy from January 1969 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Nashville, TN, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefit sought.

In January 2009, January 2012, and November 2012, the issue was remanded by the Board for further development.  

The Veteran testified at a November 2011 hearing held at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file.

In May 2013, the Veteran submitted additional evidence to the Board.  He waived initial agency of original jurisdiction (AOJ) consideration of the evidence.  

The issue has been recharacterized to comport with the evidence and Clemons v. Shinseki, 23 Vet. App. 1 (2009).


FINDING OF FACT

The Veteran's enlarged prostate is not etiologically related to active service.  



CONCLUSION OF LAW

The criteria for service connection for an enlarged prostate have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).


Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

Letters in April 2006, January 2012, and November 2012 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).    

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in March 2009.  38 C.F.R. § 3.159 (c) (2).  The Veteran waived initial AOJ consideration of evidence submitted in May 2013.

A VA examination was conducted in April 2009 and a VA opinion was obtained in March 2013.  To the extent that the Veteran has asserted that the opinions are inadequate and/or the examiner was incompetent, as suggested in the May 2013 correspondence from his representative, he has presented no evidence that the examiners are incompetent.  Both the Court and the Federal Circuit have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)).  

The April 2009 and March 2013 opinions reflect review of the claims file and rationales for the opinions provided are based on accurate findings and reliable principles, and the opinions are consistent with the evidence, to include the May 2006 VA examination report.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).  





REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in the line of duty, or for aggravation in service of a pre-existing injury or disease.  38 U.S.C.A. § 1110.  Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service.  Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303.

To establish a right to compensation for a present disability on a direct basis, 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Analysis

The Veteran asserts entitlement to service connection for an enlarged prostate, to include as a result of exposure to Agent Orange during service in Vietnam.  

There has been no assertion of combat and the provisions of 38 U.S.C.A. § 1154(b) are not applicable.  

With respect to Agent Orange exposure during service, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  The law is clear that only those disabilities listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service.  The Veteran's currently diagnosed benign prostatic hypertrophy is not a disability for which presumptive service connection may be granted in association with exposure to Agent Orange.  See 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  Nevertheless, the non-availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

The May 2006 VA Agent Orange registry examination report notes a history of exposure to Agent Orange during service and the diagnosis was benign hypertrophy of the prostate (BPH) without urinary obstruction.  The examiner concluded that the Veteran's BPH was not caused by exposure to Agent Orange.  

The April 2009 VA examination report reflects obstructive symptoms, urgency and erectile dysfunction.  The symptoms were noted to be frequently found in aging men due to prostatic enlargement, and to be unrelated to service.  

The February 2012 VA examiner reported no medical evidence to support a relationship between the genitourinary conditions during service, to include urethritis and prostatitis, and the Veteran's current benign prostatic hypertrophy (BPH).  Cited medical literature reflects the cause for BPH is unknown.  The examiner specifically concluded that it is less than likely that the Veteran's enlarged prostate was incurred in or caused by service.  

Consistent with the February 2012 VA opinion is the March 2013 VA opinion to the effect that it is less than likely that the Veteran's BPH was incurred or caused by symptoms during service, to include in association with the in-service urethritis and prostatitis in 1969 and 1970.  It was noted that, although prostatitis was diagnosed in both March 1970 and May 1970, neither examination report reflects an enlarged prostate on digital rectal examination (DRE).  In any case, and based on the normal findings at separation in December1970, the examiner determined the in-service urethritis and prostatitis had resolved.  

In addition to an unknown cause noted in both the February 2012 and April 2013 opinions, the April 2013 opinion specifically states that the in-service urethritis and prostatitis had resolved and that the Veteran's only genitourinary condition is BPH, which is not known to be caused by either urethritis or prostatitis.  It was suspected that an enlarged prostate was due to hormones or genetics.  The examiner concluded that it is less than likely that the Veteran's BPH is related to service, to include on the basis of aggravation.  

The Veteran is competent to report his symptoms and lay evidence may establish the existence of a current disorder capable of lay observation.  To the extent that the Veteran has attempted to establish a continuity of symptoms based on lay statements, however, the Board finds such attempt to be inconsistent with the more probative contemporaneous record, to include not only the normal separation examination, but also the gap between separation and the initial documented complaints with respect to an enlarged prostate.  Regardless, BPH is not included among the chronic diseases under 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a), therefore consideration of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not applicable.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In reaching a determination, the Board has accorded far more probative value to the VA medical opinions than to the Veteran's statements.  The claims file was reviewed in every case, and the rationales provided for the opinions are based on objective evidence and reliable principles.  Such is far more probative than the Veteran's remote lay assertions.  

The preponderance of the evidence is against the claim and there is no doubt to be resolved.  Service connection for an enlarged prostate is not warranted.   


ORDER

Service connection for an enlarged prostate is denied.  

____________________________________________
ROANLD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs