Citation Nr: 1333866 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-49 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to service connection for colon cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to September 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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. Hypertension was not present in service or until years thereafter, and is not etiologically related to any incident of service. 2. Prostate cancer was not present in service or until years thereafter, and is not etiologically related to any incident of service. 3. Colon cancer was not present in service or until years thereafter, and is not etiologically related to any incident of service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Prostate cancer was not incurred in or aggravated by active service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Colon cancer was not incurred in or aggravated by active service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was satisfied by way of a letter sent to the appellant in February 2009 that fully addressed all notice elements and was sent prior to the initial decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. In addition, the letter informed the Veteran that a disability rating and an effective date for the award of benefits would be assigned if service connection was awarded. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. Records from Drs. W.B., A.H., and G.O. have been associated with the claims file. The Veteran indicated in Authorization and Consent to Release Information to the Department of Veterans Affairs (VA) dated in September 2010 that he received treatment for hypertension from Dr. W.B. approximately twice a year but that he did not know the exact date that he had first seen this doctor. The Board notes that the record contains treatment records from Dr. W.B. dated from January 2010 to June 2011. The January 2010 treatment record indicates that the Veteran had been taking certain medications since November 2008 and that the Veteran was being seen for a medication refill. Therefore it is unclear whether these records are complete. However, the Veteran has not indicated that Dr. W.B. has rendered an opinion regarding the etiology of the Veteran's hypertension and there is no indication of any hypertension in service. VA is not required to search for evidence, which even if obtained, would make no difference in the result. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991)). See also Soyini v. Derwinski, 1 Vet. App. 540, 541 (1991) (declining to require strict adherence to technical requirements and impose additional burdens on VA when there was no benefit flowing to the claimant). Therefore, the Board finds it unnecessary to take additional steps to attempt to obtain these records. The Veteran has not been afforded a VA examination regarding the etiology of his disabilities. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A Veteran is not entitled to a VA examination based solely on his own conclusory statements indicating that there is a relationship between an in-service illness or injury and a present disability. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). The record must contain some other factual basis supporting his statements. See Waters, 601 F.3d at 1278; see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The Federal Circuit also held that there must be evidence "establishing" that an event, injury, or disease occurred in service. See Waters, supra. Although the Veteran has been diagnosed with hypertension, prostate cancer, and colon cancer, there is no indication other than the Veteran's assertions that these conditions may be related to the Veteran's active service. As such the Board finds it unnecessary to afford the Veteran a VA medical examination. In June 2013 the Board remanded the claims for attempts to be made to obtain and associate with the claims file the records regarding the Veteran's application for Social Security Administration (SSA) benefits. Subsequent to the remand, the records regarding the Veteran's application for SSA benefits were obtained and associated with the claims file. Therefore, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141 1999) (noting that a remand is 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 (2002). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 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). Where a Veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cardiovascular-renal disease, including hypertension, and tumors, malignant, or of the brain or spinal cord or peripheral nerves, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, a showing of continuous symptoms should still be a factor for consideration of whether a causal relationship exists between a Veteran's current disability and any in-service incident. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A. Hypertension The Veteran seeks service connection for hypertension. The Veteran contends that he suffered from hypertension during military service. Service treatment records do not reveal any complaint, diagnosis, or treatment for hypertension. Upon examination at entrance to active service the Veteran's blood pressure was measured at 120/68. In the report of examination at separation from service, dated in August 1975, the Veteran's blood pressure was measured at 100/50. In a Report of Medical History at separation from active service, dated in August 1975, the Veteran denied any high blood pressure. Post service treatment notes reveal that the Veteran was diagnosed with hypertension in June 2003. Subsequent treatment notes continue the diagnosis of hypertension. Entitlement to service connection for hypertension is not warranted. Service treatment records do not reveal any complaint, diagnosis or treatment for hypertension. Although the Veteran has reported that he had hypertension in service, this statement is outweighed by the contemporaneous medical findings in service as well as the Veteran's contemporaneous denial of high blood pressure on a Report of Medical History at separation from service. The post service treatment records reveal a diagnosis of hypertension many years after separation from service and there is no indication, other than the Veteran's assertion, that his hypertension may be related to his active service. The Board is of the opinion that the contemporaneous service medical records (which show that his blood pressure was normal in service) are entitlement to much greater weight than the recollections made many years later in support of a claim for monetary benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). As the preponderance of the evidence is against a finding of service connection for hypertension, the claim is denied. B. Prostate Cancer The Veteran seeks entitlement to service connection for prostate cancer. The Veteran reports: "I believe that this condition did occur during service because of the job I had I seriously believe that I was exposed to some sort of radiation during [service]." The Veteran continued to indicate that he did not have any history of prostate cancer in his family. The Veteran's in service job was as an armor crewman. Service treatment records do not reveal any complaint, diagnosis or treatment for any prostate cancer. Post service treatment records in February 2000 reveal that the Veteran had an elevated PSA and that it was possibly prostate cancer. The Veteran was diagnosed with prostate cancer in March 2000 and underwent a radical prostatectomy in April 2000. The Veteran reported that his tumor was confined to his prostate in July 2000. Prostate cancer was noted in September 2004. The Veteran continued to be followed for prostate cancer and was noted to have a recurrent PSA in August 2008. The post service treatment records do not reveal any indication that the Veteran's prostate cancer may be related to service. The Veteran has made a general allegation that he was exposed to some sort of radiation in service based upon his military job. The Veteran's vague assertions do not provide sufficient information regarding exposure to radiation and the Veteran lacks the competence to report that he was exposed to radiation in service. In addition, the Veteran's own statements as well as the service record associated with the claims file do not reveal any indication of any potential radiation risk activity. See 38 C.F.R. §§ 3.309, 3.311 (2013). As such, the Board finds it unnecessary to remand for additional development. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that the duty to assist is not a license for a fishing expedition to determine if there might be some unspecified information which could possibly support a claim). Service connection for prostate cancer is not warranted. Service treatment records do not reveal any complaint, diagnosis, or treatment for any prostate cancer or prostate disorder. Post service treatment records reveal diagnosis and treatment for prostate cancer many years after separation from service; however, these records do not reveal any indication that the Veteran's condition may be related to his active service. As the preponderance of the evidence is against a finding of service connection for prostate cancer, the claim is denied. C. Colon Cancer The Veteran seeks entitlement to service connection for colon cancer. The Veteran contends that he experienced a lot of pain and stomach problems in service and that these complaints turned into colon cancer. Service treatment records do not reveal any complaint, diagnosis or treatment for any colon cancer. On a Report of Medical History, dated in August 1975, the Veteran denied frequent indigestion; stomach, liver, or intestinal trouble; and piles or rectal disease. Post service treatment notes indicate that in June 2001 the Veteran was found to have adenomatous polyp and tubulovillous adenoma in the colon. In November 2002 the impression was rendered that the Veteran had colonic adenoma. Service connection for colon cancer is not warranted. Service treatment records do not reveal any complaint, diagnosis, or treatment for any colon cancer or any colon disorder. Although the Veteran has contended that he had stomach pain in service and that this has led to his colon cancer, the Board notes that the Veteran is not competent to render an opinion on the etiology of this condition. In addition, the Board notes that the Veteran's allegation of stomach pain in service is contradicted by a lack of any complaint or treatment for any stomach problem in the Veteran's service treatment records. In addition, the Veteran in his Report of Medical History at separation from service denied any stomach, intestinal, or colonic disorder or condition. The post service treatment records reveal a diagnosis of colon cancer; however, there is no indication in the records that the Veteran's colon cancer may be related to his active service. As the preponderance of the evidence is against a finding of service connection, the claim is denied. ORDER Service connection for hypertension is denied. Service connection for prostate cancer is denied. Service connection for colon cancer is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs