Citation Nr: 1336554	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  09-14 830	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a prostate condition, claimed as prostatitis, benign prostatic hypertrophy or bilateral hydrocele (hereinafter 'prostate disorder'), to include as secondary to Agent Orange exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1968 to August 1969 with additional time in the Reserves.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The Veteran testified at a Board hearing at the RO in Philadelphia, Pennsylvania in July 2012.  This transcript has been associated with the file.

The case was brought before the Board in June 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include scheduling him for a Board hearing.  As noted, this hearing was conducted in July 2012.  Therefore, the Board finds that there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).


FINDING OF FACT

The preponderance of the evidence is against a finding that a prostate disorder is related to service, or is attributable to Agent Orange exposure.


CONCLUSION OF LAW

A prostate disorder was not incurred in or aggravated by active military service, and may not be presumed to have been the result of exposure to Agent Orange.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The notice requirements were met in this case by a letter sent to the Veteran in May 2008.  This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  This letter also advised the Veteran of how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  That was done in this case.

The Veteran's service treatment records and VA treatment records are in the file.  The VA has also obtained private treatment records and associated them with the claims file.  The Veteran has not indicated that there are any additional outstanding records to be obtained.  The duty to assist with obtaining medical records has been satisfied.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

A VA examination was not provided in conjunction with the Veteran's claim for a prostate disorder, and, as discussed below, the evidence of record does not warrant one.  See 38 C.F.R. § 3.159(c)(4).  In the present case, there is no competent evidence of record to support a finding that the Veteran's prostate disorder is related to service.  The Veteran himself has provided statements that his prostate disorder is related to service, and although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the nature and etiology of a prostate disorder falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion).  The Veteran has not satisfied all the elements of McLendon; therefore, VA is not required to provide him with a VA examination in conjunction with his claim.

In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a chronic disease first diagnosed after service was incurred in service.  The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A presumption exists for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 C.F.R. § 3.309(e).  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acne form disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma.

Service connection may be presumed for residuals of Agent Orange exposure by showing two elements.  First, it must be shown that the Veteran served in the Republic of Vietnam during the Vietnam era.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e).  

Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.  38 C.F.R. § 3.313(a) (2013).  In other words, the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a 'competent' source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

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.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.'  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence').

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Analysis

The Veteran has confirmed service in Vietnam during the Vietnam War era and is therefore presumed to have been exposed to herbicide agents.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).

The Veteran alleges that his prostate disorder is related to his exposure to Agent Orange while in-service.  Although prostate cancer is on the list of diseases associated with herbicide agents under 38 C.F.R. § 3.309(e), the Veteran was not diagnosed as having prostate cancer within one year of service separation, and he has not been diagnosed as currently having prostate cancer.  See e.g., July 2012 Board hearing transcript.  Service connection for any condition of the prostate (other than cancer) on the basis of presumptive exposure to herbicide agents, including Agent Orange, is not warranted.  See 38 C.F.R. § 3.309(e).  

While service connection may not be granted on a presumptive basis for a prostate disorder the Veteran is not precluded from establishing service connection on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

The Board has reviewed the Veteran's service treatment records and observes he was given multiple medical examinations.  At his June 1967 examination he denied urinary problems and was found qualified for entrance to service.  He specifically denied urinary problems at his August 1969 separation examination.  See also June 1975 and March 1988 examinations.  At a September 1992 Reserve medical examination again he denied urinary problems; no health defects or abnormalities were noted.  This evidence weighs against the Veteran's claim that a prostate disorder began in service.

In July 1996 the Veteran underwent cystoscopy and urethral dilation.  See also May 1996 record noting an enlarged prostate.  A November 1998 treatment record noted the Veteran's urinalysis was negative and he was asymptomatic.  

A September 2007 statement from the Veteran's private physician revealed he previously had prostatitis and a resulting transurethral resection of the prostate (TURP).  A June 2008 treatment record noted a benign prostatic hyperplasia.

The Veteran also testified at his July 2012 Board hearing that he was diagnosed with an enlarged prostate in 1983.  He reported continuous treatment over the years, most recently for symptoms including bleeding with numbness and tingling of his legs.  He denied being diagnosed with prostate cancer.  

The Board has considered the Veteran's statements and testimony asserting that his prostate disorder is related to service.  The Veteran is competent to state his current symptoms, including urinary problems, bleeding in his urine, and tingling and numbness radiating to his legs.  See e.g., July 2012 Board hearing testimony.  While competent to discuss symptoms, the Veteran is not then competent to give himself a medical diagnosis and relate it to service.  See Kahana, supra.  Additionally, the Veteran has offered only conclusory statements regarding the relationship between his service and prostate disorder.  Accordingly, the Board assigns the Veteran's statements little probative value.  

The preponderance of the evidence is against the claim for service connection on a presumptive and direct basis and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  The claim of entitlement to service connection for a prostate disorder is denied.


ORDER

Entitlement to service connection for a prostate disorder is denied.



____________________________________________
D.C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs