Citation Nr: 1333641 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-33 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Little Rock, Arkansas THE ISSUE Entitlement to service connection for prostate cancer as secondary to service-connected skin cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and his wife ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from December 1952 to September 1958. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the RO in Jackson, Mississippi. Jurisdiction of the claim is with the RO in Little Rock, Arkansas. In February 2012, the Veteran and his wife presented testimony from the RO in Little Rock, Arkansas, via videoconference Board hearing, chaired by the undersigned Veterans Law Judge, seated in Washington, D.C. A transcript of the hearing is associated with the Virtual VA paperless claims processing system. The issue on appeal was previously remanded by the Board in March 2013 to obtain a VA supplemental medical opinion on the question of relationship of the Veteran's prostate cancer to radiotherapy that was used as treatment for the service-connected skin cancer. This was accomplished, and the claim was readjudicated in a September 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran's representative submitted additional statements in August 2012, for which a waiver of initial RO consideration was provided. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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). FINDINGS OF FACT 1. The Veteran has currently diagnosed prostate cancer. 2. The Veteran is service connected for basal cell cancer as due to in-service radiation exposure. 3. Currently diagnosed prostate cancer is not caused or permanently worsened in severity by the service-connected basal cell cancer. CONCLUSION OF LAW The criteria for service connection for prostate cancer as secondary to service-connected skin cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a May 2008 letter. In this notification, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim for service connection, including on the basis of radiation exposure, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the May 2008 letter included the type of evidence necessary to establish a disability rating and effective date. With respect to notice regarding the service connection claim for prostate on a secondary basis, while the Veteran was not provided this specific information, through continued representation, he has demonstrated actual knowledge of how to substantiate a claim for secondary service connection. In the August 2013 informal hearing presentation, the Veteran's representative specifically stated that service connection for prostate cancer was being claimed as secondary to service-connected skin cancer. The representative also submitted medical literature discussing the possible connection between prostate cancer and skin cancer. As such, the Veteran, through his representative, has demonstrated knowledge of the requirements regarding secondary service connection and had meaningful opportunities to participate in the adjudication of his claim, thus curing any notice deficiency. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the service connection claim currently on appeal, the evidence of record includes service treatment records, post-service VA and private treatment records, medical literature submitted by the Veteran's representative, and the Veteran's written assertions and personal hearing testimony. VA has also obtained VA medical opinions in August 2012 and April 2013 to assist in determining whether prostate cancer was caused or permanently worsened in severity by the service-connected basal cell cancer disability. As discussed in detail below, the Board finds that the April 2013 VA medical opinion is adequate as the VA examiner reviewed the claims file and provided a conclusion with supporting rationale. The Board notes that the April 2013 VA medical opinion is probative with regard to the secondary service connection claim on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the April 2013 VA examiner did not specifically state whether prostate cancer was "aggravated" by the Veteran's service-connected basal cell cancer disability in legal language of aggravation; however, for the reasons discussed in detail below, the Board finds that the medical evidence of record sufficiently addresses both the question of proximate cause and aggravation as it addresses the factual question of whether there was worsening beyond a normal progression. In this respect, the August 2013 informal hearing presentation, submitted by the Veteran's representative, does not contend that the Veteran's prostate cancer was permanently worsened by basal cell carcinoma or treatment for such; instead, the representative maintained that currently diagnosed prostate cancer was a "direct result" of skin cancer. Further, there is sufficient medical evidence on the question of aggravation. As reported in a Journal of the National Cancer Institute (JNCI) medical study, "a weak and not statistically significant" association was found between NMSC (basal cell carcinoma) and subsequent prostate cancer. VA and private treatment records also do not demonstrate that prostate cancer has permanently worsened due to service-connected basal cell carcinoma. Private treatment records from Dr. S.F merely show a possibility of aggravation rather than one of probability. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal that is addressed on the merits in this decision. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained; therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In the present case, the issue of service connection for prostate cancer on a direct basis, to include in-service exposure to ionizing radiation has been adjudicated in a July 2012 Board decision. Therefore, the only remaining issue on appeal as raised by the evidence of record, is service connection for prostate cancer as secondary to service-connected skin cancer. As such, the service connection presumptions applicable through 38 C.F.R. § 3.303(b) and § 3.309(a) are not for application. In this regard, service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The Board notes that, under 38 C.F.R. § 3.310(a), secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition, beyond the natural progression of the disease, which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). Under 3.310(b), a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Secondary Service Connection for Prostate Cancer The Veteran has consistently maintained that currently diagnosed prostate cancer was related to service, to include exposure to ionizing radiation at that time. See May 2008 claim for VA compensation; see also February 2012 Hearing Transcript at pg. 3. That notwithstanding, the Veteran has contended that prostate cancer may be caused or related to radiotherapy conducted in connection with treatment for the service-connected skin cancer. As noted above, the Veteran's primary contention of a direct relationship between prostate cancer and service, to include ionizing radiation was adjudicated in a July 2012 Board decision. As such, the Board will only address the theory of whether currently diagnosed prostate cancer is caused or permanently worsened in severity by the service-connected basal cell cancer. At the outset, the Board finds that the Veteran has currently diagnosed prostate cancer. See May 2008 statement from Dr. S.F. Further, the Veteran is currently service connected for basal cell carcinoma, effective May 8, 2003. As such, the remaining question is whether currently diagnosed prostate cancer is caused or permanently worsened by service-connected basal cell cancer. See 38 C.F.R. § 3.310(a). Weighing in favor of the Veteran's claim for secondary service connection is a December 2009 statement from Dr. S.F., the Veteran's private physician, which noted that the Veteran had a history of radiotherapy (for service-connected skin cancer) in the past which had been shown in experimental studies and in evaluation of veterans to have some correlation with instances of carcinoma of the prostate. While this is an acknowledgment that a relationship is possible to the Veteran's service-connected skin cancer, it does not express an opinion with any degree of certainty. Further, Dr. S.F. did not specify or reference which experimental studies showed a correlation between radiotherapy and prostate cancer or what the correlation was. As such, the Board finds that the December 2009 statement from Dr. S.F. is of little probative value on the question of whether the Veteran's currently diagnosed prostate cancer is caused or permanently worsened in severity by the service-connected basal cell cancer. The Board has also considered a medical study from the JNCI submitted by the Veteran's representative in August 2013. This medical study, titled "Nonmelanoma Skin Cancer and Risk for Subsequent Malignancy," specifically addresses the hypothesis that individuals with a personal history of nonmelanoma skin cancer (which includes basal cell carcinoma) may have an increased risk of subsequent noncutaneous malignancies. The Board recognizes that medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion; however, the Board finds the JNCI medical study to be of little probative value because, by its own language, it only express a possibility of relationship rather than one of probability. Specifically, the JNCI study stated the following: "Our results provide only limited evidence to assess the extent to which a personal history of NMSC differentially affects risk of specific malignancies. Nevertheless, the results revealed some heterogeneity in the association between NMSC and subsequent cancer risk for cancers for which we were able to measure the association. As expected, the risk of melanoma was substantially elevated among those with a personal history of NMSC. The risks of lung, colorectal, and breast cancers were in keeping with the association observed for overall malignancies, although the association for breast cancer was not statistically significant. A weak and not statistically significant association was found for prostate cancer (emphasis added). This pattern of associations indicates that the overall cancer risk associated with an NMSC diagnosis may apply to many, but not necessarily all, malignancies." When applied to the Veteran's case, the JNCI study only provides "limited evidence" to determine the extent to which a history of NMSC (basal cell cancer) would affect the risk of specific malignancies, to include prostate cancer. Further, and as specifically noted by the JNCI study, a weak and not statistically significant association was found between NMSC and subsequent prostate cancer. The Board finds that the JNCI is a study which addressed a hypothesis that individuals with a personal history of nonmelanoma skin cancer "may" have an increased risk of subsequent noncutaneous malignancies. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert, 5 Vet. App. 30, 33; see also Beausoleil, 8 Vet. App. at 463; Libertine, 9 Vet. App. at 523. A physician's statement framed in terms such as "may" or "could" is not probative. See Warren, 6 Vet. App. at 6. For these reasons, the Board finds that the JNCI medical study is of little probative value as to whether currently diagnosed prostate cancer is caused or permanently worsened in severity by the service-connected basal cell cancer. The record also includes an August 2012 VA medical opinion obtained pursuant to the Board's July 2012 remand which was requested to assist in determining whether the Veteran's prostate cancer was causally or etiologically related to service-connected skin cancer, to include on the basis of radiation therapy received for the treatment of skin cancer. The VA examiner noted that the Veteran was exposed to radiation in 1958 in the Pacific and stated that the extent of the Veteran's radiation exposure (calculated at less than 40 rems) was not a factor in the etiology of the Veteran's prostate cancer. Although the VA examiner opined that the Veteran's prostate cancer was not causally or etiologically related to skin cancer on the basis of radiation exposure, it appears that this opinion was based only on in-service radiation exposure, and did not consider the contention that the Veteran's prostate cancer may be a result of his exposure to radiotherapy used as treatment for his service-connected skin cancer, including taking into account the fact of such exposure. The Board finds the August 2012 VA medical opinion to be of no probative value on the secondary service connection question on this case because it failed to address the appropriate theory of entitlement (secondary service connection due to radiotherapy treatment for skin cancer) and failed to provide a supporting rationale for any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). Pursuant to the Board's March 2013 remand, a supplemental VA medical opinion was obtained in April 2013. Upon review of the claims file, the April 2013 VA examiner noted that the Veteran had two basal cell carcinomas removed from the left cheek which were treated by surgical removal and radiation. According to the VA examiner, there was no medical evidence that low grade radiation to skin cancer on the left cheek would be a causative factor in development of prostate cancer. Although the April 2013 VA examiner opined that prostate cancer was "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness," which is the evidentiary standard for direct service connection, the Board finds that the rationale provided was clearly in reference to, and supportive of, the question (theory) of secondary service causation. For these reasons, the Board finds that this evidence weighs against a relationship between prostate cancer and service-connected basal cell carcinoma. The Board further finds that the weight of the evidence of record, both lay and medical, demonstrates that prostate cancer was not permanently worsened (aggravated) by the service-connected basal cell cancer disability. In this respect, the August 2013 informal hearing presentation, submitted by the Veteran's representative, does not contend that the Veteran's prostate cancer was permanently worsened by basal cell carcinoma or treatment of such; instead, the representative maintained that currently diagnosed prostate cancer was a "direct result" of skin cancer. Further, as reported in the JNCI medical study, only a weak and not statistically significant association was found between NMSC and subsequent prostate cancer. VA and private treatment records also demonstrates that the Veteran's prostate cancer has not permanently worsened due to service-connected basal cell carcinoma. In a July 2011 private treatment note, the Veteran's Prostate-Specific Antigen Test (PSA) had gone up to 0.5; however, Dr. S.F. noted that sometimes, if tests are conducted at different labs, results will have some variation. The assessment noted at the July 2011 treatment session was a history of Gleason 7 carcinoma of the prostate three years out with "questionable" prostate-specific antigen elevation. In a later October 2011 treatment note, Dr. S.F. stated that the Veteran's PSA was 0.59 on October 2011; however, PSA failure was questionable as the rise in PSA was not significant and the most common definition of PSA failure involved three successive rises over a period of time. Dr. S.F. assessed the Veteran with significant volume Gleason 7 carcinoma of the prostate with "questionable" biochemical failure, doing well. Importantly, none of the questionable increases in PSA results were found to be related to basal cell carcinoma or radiotherapy. For these reasons, the Board finds that the evidence of record does not demonstrate that the Veteran's prostate cancer permanently worsened by the service-connected basal cell cancer disability. The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed prostate cancer and service-connected basal cell cancer. While the Veteran is competent to report symptoms as they come to him through his senses, prostate cancer, to include as due to basal cell carcinoma and radiotherapy, is not the type of disorder that a lay person can provide competent evidence on questions of etiology. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). The etiology of the Veteran's prostate cancer is a complex medical question involving internal and unseen system processes unobservable by the Veteran. Additionally, an opinion as to etiology of prostate cancer would require knowledge, training, or experience to render an opinion as to the relationship of how, and to what extent, basal cell carcinoma, to include the effects of radiotherapy, is related to prostate cancer. The Veteran is not shown to have such knowledge, training, or experience to render such an opinion. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for prostate cancer as secondary to service- connected skin cancer, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for prostate cancer as secondary to service-connected skin cancer is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs