Citation Nr: 1322543	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  08-20 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for chronic prostatitis and prostate cancer.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and M. N. 

ATTORNEY FOR THE BOARD

A. Hinton, Counsel





INTRODUCTION

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

The Veteran, who is the appellant, served on active duty from June 1956 to June 1960.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

While on appeal, the RO granted service connection for coronary artery disease, tinnitus, and a bilateral hearing loss disability and claims are no longer on appeal. 
 
In March 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

In May 2012 the Board remanded the case to the RO for further development.


FINDING OF FACT

A chronic prostatitis or prostate cancer was not affirmatively shown to have had onset during service; a malignant tumor of the prostate was not manifested to a compensable degree within one year from the date of separation from service; and a prostatitis or prostate cancer first shown after service beyond the one year presumptive period for malignant tumor of the prostate as a chronic disease, is unrelated to an injury, disease, or event, in service. 





CONCLUSION OF LAW

The criteria for service connection for chronic prostatitis and prostate cancer have not been met.  38 U.S.C.A. §§ 1131, 1137, 5107(b) West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 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, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  





The RO provided pre-adjudication VCAA notice by letter, dated in February 2007.  The notice included the type of evidence needed to substantiate a claim of service connection.  The Veteran was notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  Following the last letter providing VCAA notice, the RO readjudicated the claim in an April 2013 supplemental statement of the case.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records and VA records and private medical records. 

VA examinations were conducted in April 2009 and March 2013.  As the examination reports and the medical opinions are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports and the medical opinions are adequate to decide the claim.  




See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 

REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).


For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).




Service connection may also be granted for a 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).

For a veteran who served 90 days or more of continuous, active service, and a chronic disease, such as a malignant tumor, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  38 U.S.C.A. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Evidentiary Standards

VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  The Veteran served in peacetime and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. 

Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 






When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran.  38 U.S.C.A. § 5107(b). 

Facts

The service treatment records show no complaint or finding of a prostate abnormality.  During treatment for a kidney cyst in August 1959, on physical examination, the prostate not enlarged or tender.

In May 1960 on separation examination, evaluation of the genitourinary system was evaluated as normal, and the summary of defects and diagnoses contained no indication of a prostate abnormality.  

After service on VA examination in September 1961, the prostate was normal in size and consistency and not tender.

Private medical records from 1967 to January 2013 show that the first indication of a prostate problems was in 1995, when the prostate specific antigen (PSA) was elevated.  The pertinent finding was 1 to 2+ enlarged prostate, but benign.  The impression was asymptomatic benign prostatic hypertrophy and elevated PSA with normal prostate examination.  In May 1996, a biopsy showed chronic prostatitis. 

In May 2001, a biopsy was positive for adenocarcinoma.  In July 2001 the Veteran underwent a radical prostatectomy for treatment of the carcinoma.  

In April 2009 on VA examination, the pertinent diagnosis was prostate cancer with radical prostatectomy.  The VA examiner stated that prostate cancer was less likely as not related to active military service.  The rationale for that opinion was that there was no evidence in the service treatment records relating to the prostate.




In March 2012, the Veteran testified that he had prostate cancer and before the cancer he had symptoms of urinary difficulty and elevated PSAs.

In March 2013 on VA examination, the diagnosis included prostate cancer in remission.

Analysis 

The Veteran does not assert and the evidence does not show that chronic prostatitis or prostate cancer was affirmatively shown to have had onset in service and service connection under 38 C.F.R. § 3.303(a) is not established.  

Prostate cancer, as a malignant tumor, is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology, need to be addressed, but as prostate cancer was not noted in service, and as a notation of prostate cancer is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply.   See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection, creating a presumption of service connection for a chronic disease manifesting during service and then again at any later date, is available only for a chronic disease enumerated in 38 C.F.R. § 3.309(a), the only regulation listing named chronic diseases.).

The Veteran asserts that his currently diagnosed chronic prostatitis and prostate cancer were caused by service.  The Veteran is competent to describe symptoms that are capable of lay observation. 38 C.F.R. § 3.159 (Competent lay evidence means 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.); 



See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses).

And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The question is whether the Veteran as layperson is competent to diagnose the chronic prostatitis and prostate cancer or to offer an opinion on a causal relationship between the present prostate disability and service, that is, the "nexus" requirement for entitlement to service connection.  

Whether prostatitis and prostate cancer were present in service or whether the disabilities were caused by an injury, disease, or event in service are not questions that can be competently answered by the Veteran as a lay person based on mere personal observation. This is because the disabilities fall outside the realm of common knowledge of a lay person, that is, this question is not capable of lay observation without specialized education, training, or experience.  And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to diagnose or to render an opinion on the etiology of chronic prostatitis and prostate cancer. 

If as here, there is a question of the diagnosis, which is not capable of lay observation, including by case law, then to the extent the Veteran's lay testimony is offered as proof of the presence of the claimed disabilities or on causation, the Veteran's lay testimony is not competent evidence and the Veteran's lay testimony is not admissible as evidence.  


The Veteran's lay testimony is not to be considered as competent evidence that the claimed disabilities were present in service or were caused by an injury, disease, or event in service. 

Although Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional.  Jandreau, at 1377.  No medical professional has diagnosed prostate disease before 1995, 35 years after service separation in 1960, and no medical professional has provided an opinion linking the Veteran's prostate disease to service or to a service-connected disability.  
 
Further, because prostate cancer was not shown within one year of discharge from service, presumptive service connection for prostate disease under 38 C.F.R. §§ 3.307 and 3.309(a) does not apply.  

As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d) and medial causation, the Board looks to the medical evidence.  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008).





As for symptoms described by the Veteran that later support a diagnosis by a medical professional, no medical professional has attributed the current diagnosis of chronic prostatitis or prostate cancer to an injury, disease, or event in service.   

The only competent medical evidence of record pertaining to causation or a nexus to service consists of the reports of VA examinations in April 2009 and March 2013.  The VA examiners expressed the opinion that it was less likely than not that the prostate disability was related to service.  

The opinions of the VA examiners constitute competent and persuasive medical evidence which opposes rather than supports the claim.  

There is no medical evidence to the contrary.  The Board therefore finds that the Veteran's lay evidence capable of lay observation, to the extent it asserts a nexus with service, is outweighed by the competent medical evidence.  

As there is no competent lay evidence on the material issue of fact, namely, a nexus to service and no medical evidence in favor of the claim, the preponderance of the medical evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).  


ORDER

Service connection for a chronic prostatitis and prostate cancer is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs