Citation Nr: 1325792	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  07-28 761	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for prostate cancer. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty from January 1969 to February 1999. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2014.  A transcript of the hearing is of record.


FINDING OF FACT

The evidence of record is at least in equipoise with respect to whether the Veteran's current diagnoses of prostate cancer had its onset during active military service.


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, prostate cancer was incurred during active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Notice and Assistance

The United States Department of Veterans Affairs (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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this case, the Board is granting in full the benefit sought on appeal with respect to entitlement to service connection for prostate cancer.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

II.  Analysis

The Veteran contends that he currently has prostate cancer that had its onset during active military and is a result of exposure to ionizing radiation during active military service.  

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).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995).

In assessing whether the Veteran is entitled to service connection for prostate cancer, the evidence of record must show that the Veteran currently has the claimed disability.  A letter from a private urologic oncologist dated in October 2002 shows the Veteran has a diagnosis of prostate cancer.  He underwent a radical retropubic prostatectomy as part of his cancer treatment.  A VA examination dated in August 2012 diagnosed the Veteran with prostate cancer, status post prostatectomy with scar.  Thus, there is medical evidence of a current diagnosis of prostate cancer.  

The Veteran's service treatment records do not show that the Veteran was diagnosed with prostate cancer during military service.  However, an April 1998 service treatment record notes that the Veteran complained of groin pain since October 1997.  A May 1998 service treatment record documents that the Veteran first noticed groin pain while he was performing sit-ups and leg lifts.  The Veteran described that it hurt behind the right testicle.  Physical examination revealed no apparent hernial or testicular masses. The Veteran's prostate was enlarged on the left.  He was diagnosed with groin pain, paresthesia and benign prostatic hyperplasia.  The Veteran's separation examination in January 1999 revealed that his prostate was normal.  

Nonetheless, a private medical opinion dated in June 2013 reveals that the onset of the Veteran's prostate cancer likely occurred during active military service.  The physician reported that the Veteran was diagnosed with voluminous prostate cancer Gleason grade 3+4.  He provided the opinion that knowing the slow growth rate of prostate cancers this tumor was in all likelihood present for many years prior to his diagnosis.  He explained that prostate cancers are known to double every three to four years.  Thus, the physician concluded that it is not inconceivable that this tumor was present eight or more years prior to diagnosis.  The evidence of record shows that the Veteran was diagnosed with prostate cancer in April 2002.  Thus, the private medical opinion supports the Veteran's contention that the slow progressing prostate cancer had it onset sometime prior to the Veteran's discharge from service in February 1999.  

In light of the foregoing, the Board concludes that the evidence is in equipoise on whether the Veteran's prostate cancer had its onset during active military service.  As such, the Board resolves any reasonable doubt in favor of the Veteran.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  Accordingly, the Board finds that entitlement to service connection for prostate cancer is warranted.


ORDER

Entitlement to service connection for prostate cancer is granted. 



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs