Citation Nr: 1320397 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-45 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a prostate disability, to include residuals of prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1968. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO characterized the issue as a service connection claim for residuals of prostate cancer. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a disability claim includes any disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). In compliance with the Court's holding in Clemons, the Board has recharacterized the issue as reflected above, on the first page. FINDING OF FACT There is no competent evidence of record that the Veteran has a current prostate disability that is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection of a prostate disability, to include residuals of prostate cancer, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.1756(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this matter, substantially compliant notice was sent to the Veteran in March 2009. Specifically, the March 2009 letter apprised the Veteran of what the evidence must shown to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. It also notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an April 2009 VCAA response, the Veteran indicated that he had no other information or evidence to provide VA to support his claim. With regard to the duty to assist, the RO obtained service treatment records (STRs), and VA treatment records. The Veteran indicates in his claim that his prostate was removed in 2009; however, after receiving a request to provide evidence to substantiate his claim or to provide VA with the required information to secure private treatment records, the Veteran failed to provide documentation and affirmatively denied the existence of additional evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file and the Veteran has not contended otherwise. The Veteran was not afforded a VA examination; however, the Board finds that a medical opinion on the question of service connection for a prostate disability is not required because there is insufficient evidence indicating that the Veteran has a current prostate disability that may be associated with service. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Factual Background The Veteran contends that his prostate disability incurred during active service during 1965. The Veteran's February 1964 enlistment examination indicates that the Veteran's genitourinary (GU) system was "normal" and his anus and rectum were normal. In February 1966, June 1966, July 1966, September 1966, and in October 1966, the Veteran was treated for hematuria. In January 1967, the Veteran underwent a prostatic biopsy; results indicated no stones, tumors, diverticulae, ulceration or trabeculation were found. At the right side of the Veteran's prostate, a palpable mass was discovered. The in-service examiner indicated the mass was a prostatic abscess that was drained via a transrectal biopsy. Two cores of tissue were taken with the biopsy; however, results of the biopsy indicated normal prostate glands. In August 1967, the Veteran was treated for hematuria with unknown etiology. The Veteran's January 1968 separation examination indicates a history of the prostatic abscess, painful urination and back pain due to the prostatic abscess, without complication and no sequela. The Veteran's separation examination record also indicates that the Veteran's GU system was "normal" and his anus and rectum were "abnormal," with a "diffusely enlarged left lobe which is non-tender and firm. However, the Veteran's STRs are devoid of any indication of a diagnosis or treatment of prostate cancer. See Veteran's Service Treatment Records. The Veteran's post-service treatment records of record span September 2005 through June 2007 and consist solely of VA treatment records. VA treatment records note that Veteran was treated for kidney stones 4 years prior to the September 2005 report. However, VA treatment records are devoid of a current diagnosis or treatment for a prostate disability or any other urinary or reproductive system disorder; VA records only mention that the Veteran was hospitalized for prostate problems while in service "40 years ago." See VA Treatment Records. The Veteran asserts that he was hospitalized twice during service for periods of one month each which resulted in the removal of his prostate in 2009. See Veteran's Claim. However, the Veteran failed to provide medical evidence of prostate cancer or of the 2009 removal of his prostate. The Veteran's representative submitted a brief for the record and asserted that Veteran's "continuity of symptoms" is pertinent to his claim for service connection for a prostate disability and reiterated the Veteran's contentions that service connection is warranted for the Veteran's claim. IV. Analysis The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran has a current prostate disability for which service connection is warranted. The Board finds that the Veteran is competent to state that his prostate was removed in 2009. The record does not contain any evidence that would call into question the credibility of the Veteran's reported prostatectomy. However, the Veteran does not have the requisite education, training, or experience to offer a prostate cancer diagnosis nor has he established through credible and competent evidence that he has a current service connected prostate disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As mentioned above, the RO apprised the Veteran of all of the evidence of record and requested that the Veteran indicate where additional evidence, if any, could be obtained, yet the Veteran affirmatively denied the existence of any additional evidence. See Locklear v. Nicholson, 20 Vet. App. 410, 416 (2006) (VA not required to analyze evidence already in its possession and inform claimant that the evidence is insufficient and that other evidence is required). The Board acknowledges that the Veteran had a prostate abscess and was treated for hematuria on several occasions while in service, but the evidence fails to indicate a nexus with the Veteran's current prostate disability. Therefore the Veteran is unable to establish the third requirement of a service connection claim; the Veteran is unable to establish a medical nexus to his in-service prostate disorder. The Veteran's representative submitted a brief for the record which asserts that the Veteran's "continuity of symptoms" is pertinent to his claim for service connection for a prostate disability. The evidence of record only includes reported treat for kidney stones 4 years prior to September 2005 and the reported removal of the Veteran's prostate. Thus continuity of symptoms going all the way back to service is not shown. Moreover, the Federal Circuit Court held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Prostate disabilities are not included in the enumerated chronic disabilities under 38 C.F.R. § 3.309(a), moreover, the representative's argument does not assist in establishing a medical nexus. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for a prostate disability, to include the residuals of prostate cancer. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for a prostate disability, to include residuals of prostate cancer, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs