Citation Nr: 1322412	
Decision Date: 07/12/13    Archive Date: 07/18/13

DOCKET NO.  11-10 117	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for incontinence (claimed as secondary to a prostatectomy).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran had active military service from October 1954 to October 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for a low back injury, prostate cancer and incontinence.  The Veteran filed notice of disagreement in August 2009.  A statement of the case was issued in March 2011, and a substantive appeal was received in April 2011.  On his substantive appeal, the Veteran limited his appeal to the low back disability and incontinence issues.  In November 2012 the Board remanded the matters of service connection for a low back injury and incontinence for further development.  An interim, June 2013, rating decision granted service connection for a low back injury effective from January 14, 2009.  This constituted a full grant of the benefit sought for that matter and it is no longer before the Board for appellate consideration.  

Please note 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

Incontinence was not manifested in service, nor is incontinence shown to be related to disability resulting from the Veteran's active duty service.


CONCLUSION OF LAW

Incontinence was not incurred in or aggravated by the Veteran's active duty service, nor is incontinence secondary to service-connected disability.  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

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Duty to Notify

Upon receipt of a complete application, 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.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  The RO provided the appellant pre-adjudication notice by letter dated in February 2009.  The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence.  The notification also complied with the specificity requirements of Dingess, 19 Vet. App. 473 identifying the five elements of a service connection claim.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (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).

Duty to Assist

VA also has a duty to assist a claimant under the VCAA.  VA attempted to obtain the Veteran's service treatment records, but was notified that they were destroyed in the 1973 fire at the National Personnel Records Center (NPRC).  The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  VA assisted the Veteran in obtaining evidence, specifically private treatment and medical records.  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 and his representative have not contended otherwise.  His Virtual VA (electronic file) has been reviewed and there are no pertinent records contained therein that are not associated with the claims file.

The Board notes that the Veteran has not been afforded a nexus examination with regard to the matter of service connection for incontinence and finds that such examination is not necessary.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court explained that 38 C.F.R. § 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and (B) establishes that the Veteran suffered an event, injury, or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.  The Court noted that the third prong of 38 C.F.R. § 3.159(c)(4) is a low "threshold" standard.  Here, there is no evidence (or allegation) that incontinence was manifested in service.  Neither is there evidence that incontinence is due to a service-connected disability.  Consequently, even the "low threshold" standard of McLendon is not met; and an examination is not warranted.  The Veteran has not identified any pertinent post-service evidence that remains outstanding.  VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

Legal Criteria, Factual Background and Analysis

The Veteran claims entitlement to service connection for incontinence.  His essential argument is that because he underwent radiation therapy in connection with a skin rash during service, he was unable to received radiation treatment after service for prostate cancer.  He argues that as a result of the radical prostatectomy, he is totally incontinent.  

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310.  The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995).

In this case, there is no evidence suggesting that the Veteran's claimed incontinence may be directly related to his service.  Notably, the Veteran's private physician noted that when the Veteran was diagnosed with prostate cancer in 1992 it was required that he have a radical open prostatectomy.  As a direct result of the surgery he was left with a permanent incontinence situation.  The Veteran does not allege otherwise.  In a June 2009 statement in support of his claim, he noted that because he was unable to received radiation treatments for prostate cancer, he had to have a radical open prostatectomy, which resulted in permanent incontinence.  Further in his August 2009 notice of disagreement he noted that the radical prostatectomy left him incontinent.  

As noted, secondary service connection is warranted where a disability is proximately due to, or the result of, or aggravated by a service-connected disease or injury.  Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either caused or (aggravated) by the service connected disability.  38 C.F.R. § 3.310(a).  

It is noted that an August 2009 rating decision denied service connection for prostate cancer.  There is therefore no legal basis for secondary service connection with regard to such cancer. 

As noted earlier, the Veteran's main contention is that he was unable to receive radiation treatment for the prostate cancer because of his history of prior radiation therapy during service for a rash on the lower abdomen.  The record includes a statement from Michael D. Martin, M.D. to the effect that external beam radiation was planned to treat the prostate cancer, but this therapy could not be performed due to the history of prior radiation treatment.  Dr. Martin further reported that the Veteran has had problems with urinary incontinence since undergoing prostate surgery. 

At this point the Board notes that the RO's efforts to locate any service treatment records showing the radiation treatment have been unsuccessful.  At any rate, the Board is of the opinion that there is no legal basis for granting service connection for the incontinence under the facts of this case.  Assuming that the Veteran did undergo radiotherapy for lichen planus during service, there was no resulting disability for VA compensation purposes.  The inservice treatment was ameliorative in nature, and there is no showing or allegation of physical residuals of the inservice skin rash.  The determination by his physicians many years later that radiation beam therapy for the prostate cancer should not be performed because of the prior radiotherapy during service was a medical decision.  That incontinence has resulted from the prostate surgery is unfortunate.  However, there is no showing of proximate causation between the inservice therapy and the incontinence, nor is there a showing of any disability resulting from the inservice radiation therapy.  


ORDER

The appeal is denied.


____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs