Citation Nr: 1333902 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-23 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for prostate disorder with erectile dysfunction, to include as due to Agent Orange exposure. 2. Entitlement to service connection for colon polyps, to include as due to Agent Orange exposure. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1965 to July 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. On his June 2009 substantive appeal, VA Form-9, the Veteran requested a hearing before the Board, but he cancelled that hearing request in April 2010. In May 2011, August 2012 and April 2013, the Board remanded this case for further evidentiary development and compliance with the Board's prior remand decision, respectively. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era, and his exposure to herbicide agents, to include Agent Orange, is presumed. 2. The medical evidence of record does not show benign prostate hypertrophy until more than four decades after the Veteran's period of service, and the preponderance of the medical evidence is against a finding that his benign prostate hypertrophy is causally related to his period of active service, to include as due to herbicide exposure. 3. The medical evidence of record does not show erectile dysfunction until more than three decades after the Veteran's period of service, and the preponderance of the medical evidence is against a finding that his erectile dysfunction is causally related to his period of active service, to include as due to herbicide exposure. 4. The medical evidence of record does not show benign colon polyps until more than three decades after the Veteran's period of service, and the preponderance of the medical evidence is against a finding that his benign colon polyps is causally related to his period of active service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for benign prostate hypertrophy with erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for entitlement to service connection for benign colon polyps have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Concerns In May 2011, the Board remanded these claims and ordered the agency of original jurisdiction (AOJ) to obtain outstanding VA and private medical records as well as scheduled the Veteran for a VA genitourinary examination. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, VA treatment records were obtained and associated with the Veteran's claims folder. Additionally, the Veteran was afforded a VA examination in June 2011 and a report of the examination was associated with his claims folder. However, the Veteran's identified private treatment records were not associated with the claims folder until October 2011. The Veteran's claims were readjudicated via the May 2012 supplemental statement of the case (SSOC). After a review of the June 2011 VA examination report, the Board found that an addendum statement was needed from the June 2011 VA examiner. In August 2012, the Board instructed that the AOJ return the June 2011 VA examination report to the examiner for a new medical opinion based on all the evidence of record, to include private treatment record that were previously unavailable to him, and a complete rationale for that opinion. The examiner was instructed to provide an opinion on whether any shown condition was as likely as not related to the Veteran's service and whether any shown condition was as likely as not related to herbicide exposure. A detailed rationale for all opinions was requested. An addendum dated in August 2012 to the June 2011 report of examination restated the prior opinion and reasoning, noting review of the complete claims file to include the private treatment records. The Board found that the medical opinion contained in the report of VA examination dated in June 2011 with the 2012 addendum remained inadequate and in April 2013, the Board remanded the matter again for compliance with the Board's prior remand decisions. Another addendum statement was obtain in August 2013 for the VA examination report dated in June 2011 with 2012 addendum and the addendum was associated with the claims folder. The Veteran's claims were readjudicated via the September 2013 SSOC. Accordingly, the Board finds that there has been compliance with the 2011, 2012, and 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board imposes upon the Secretary of Veterans Affairs a duty to ensure compliance with the terms of the remand). VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter dated in February 2008. This letter also provided the Veteran with notification regarding the effective-date element of the claim. The Veteran's claim was then adjudicated by the RO in a December 2008 rating and most recently re-adjudicated by the AMC in a September 2013 supplemental statement of the case (SSOC). See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his increased rating claims. Concerning VA's duty to assist, the Board notes that the VA has obtained the Veteran's service personnel records, post-service VA and private treatment records, and his testimony and lay statements. The Veteran was afforded VA genitourinary examination in June 2011. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed the claims folder, reviewed his past medical history, documented his current medical condition, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board then obtained addendum medical statements dated in August 2012 and in August 2013. Any deficiencies in the June 2011 VA examination report and the August 2012 addendum were addressed by the VA examiner in the August 2013 addendum. The August 2013 opinion was rendered after a thorough review of the claims file and is supported by the evidence of record. Therefore, the Board finds that the evidence of record is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has declined to retain the services of a representative, and he has declined the opportunity for a personal hearing before a member of the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). These diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039(Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167(1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Presumptive Basis for Service Connection In this case, the Veteran seeks entitlement to service connection for prostate disorder with erectile dysfunction and colon disorder, all to include as due to exposure to herbicide agents while he was stationed in Vietnam. The Veteran's exposure to herbicide agents is presumed. The Veteran's service records shows that he was stationed in the Republic of Vietnam for one year, from November 1965 to November 1966. Thus, his exposure to herbicide agents is presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). With in-services exposure to herbicide agents, service connection is presumed for conditions identified as related to such exposure and itemized at 38 C.F.R. § 3.309(e). However, the Veteran's current diagnosed disorders of benign prostate hypertrophy, erectile dysfunction, and benign colon polyps are not among the conditions itemized at 38 C.F.R. § 3.309(e) and recognized as a disease for which presumptive service connection is available on the basis of herbicide exposure. VA regulations do not provide for the award of service connection for benign prostate hypertrophy, erectile dysfunction, or benign colon on a presumptive based on in-service herbicide exposure, and service connection on a presumptive basis is not warranted. See 38 C.F.R. § §3.307, 3.309(e). Direct Basis for Service Connection Notwithstanding the inapplicability of the regulations pertaining to presumptive service connection, the Board is obligated to fully consider the Veteran's claim on a direct basis. See Combee, 34 F.3d at 1039. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. It is undisputed that the Veteran currently has benign prostate hypertrophy, erectile dysfunction, and benign colon. See the report of the June 2011 VA genitourinary examination as well as private colonoscopy surgical reports dated in October 2009 and June 2011. Accordingly, Hickson element (1) is satisfied with respect to each claim. With respect to Hickson element (2), the Board will separately address in-service disease and injury. Concerning disease, the Veteran does not contend, nor does the evidence suggest, that he developed benign prostate hypertrophy, erectile dysfunction, or benign colon polyps during service or within the one year presumptive period found in 38 C.F.R. § 3.309(a). Rather, the Veteran reported that his benign colon polyps and erectile dysfunction had an onset approximately around 1999 and his benign prostate hypertrophy had an onset in 2007. Each of these conditions did not manifest until three decades or more after the Veteran's separation from service. Concerning in-service injury, the Veteran's service records show that he served in the Republic of Vietnam during the Vietnam era. It is therefore presumed that the Veteran was exposed to herbicides agents in Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Therefore, the second Hickson element has arguably been met with respect to in-service injury. The remaining question presented in this case, i.e. the relationship, if any, between the Veteran's diagnosed disorders and his military service, to include his presumed exposure to herbicide agents. As this question is essentially medical in nature, the Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In this regard, the record contains the medical statement from the VA examiner who conducted the June 2011 VA examination and provided an August 2013 addendum. In the August 2013 addendum, the VA examiner concluded that it is less likely than not that the Veteran's benign prostate hypertrophy, erectile dysfunction, and benign colon polyps are related to his period of service, to include his presumed exposure to herbicide agents. In support of this medical conclusion, the VA examiner noted that there was no evidence of any benign prostate hypertrophy, erectile dysfunction, or benign colon polyps in the Veteran's service treatment records and there was no medical evidence of benign prostate hypertrophy, erectile dysfunction, or benign colon polyps in the treatment records shortly after the Veteran's period of service. Moreover, the VA examiner noted that a review of the medical literature did not show a causal link between diagnoses of benign prostate hypertrophy, erectile dysfunction, and benign colon polyps, and to exposure to herbicides, to include Agent Orange. See the August 2013 addendum to the June 2011 VA examination report. Based on the foregoing discussion, the Board finds that the VA examiner's 2013 negative medical nexus opinion is highly probative in this matter and it weighs heavily against the Veteran's claims. The Board finds it pertinent that there is no medical opinion of record to the contrary. The Board has considered the Veteran's own assertions regarding a possible connection between his benign prostate hypertrophy, erectile dysfunction, and benign colon polyps and his in-services exposure to Agent Orange or other herbicide agents. The Board finds that the Veteran's assertions are afforded little probative weight in the absence of evidence that the Veteran has medical training that can provide the expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board acknowledges the Court's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. While he is competent to discuss the symptoms and how they occur intermittently over the years, he lacks the medical expertise to diagnose the condition and to relate its etiological origin in service. Moreover, the VA examiner's 2013 opinion provides medical evidence against a link between the current diagnosed disorders and herbicide exposure. In sum, the Veteran does not have a current diagnosed that is recognized under 38 C.F.R. § 3.309(e) as a disease for which presumptive service connection is available on the basis of herbicide exposure. Further, the weight of the evidence is against a finding that the Veteran's benign prostate hypertrophy, erectile dysfunction, and benign colon polyps are related to his service, including in-service exposure to herbicide agents. As such, the preponderance of the medical evidence is against an award of service. Consequently, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claims must be denied. ORDER Entitlement to service connection for benign prostate hypertrophy with erectile dysfunction is denied. Entitlement to service connection for benign colon polyps is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs