Citation Nr: 1336651	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  10-30 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for a prostate disability.  


REPRESENTATION

Veteran represented by:	Calvin Hansen, Attorney 


ATTORNEY FOR THE BOARD

R. Chakraborty, Associate Counsel


INTRODUCTION

The Veteran served in the United States Army on active duty from May 1967 to March 1969.  
This case is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, in which the RO denied service connection for a prostate disability.  

The Board notes that, in addition to the paper claim file, there is a Virtual VA electronic claim file associated with the Veteran's claim.  The Board has reviewed the documents in both the paper claim file and the electronic claim file in rendering this decision.  


FINDING OF FACT

The weight of the evidence is against a finding that the Veteran's prostate disability is etiologically related to service.  


CONCLUSION OF LAW

A prostate disability was not incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

In correspondence dated in June 2009, prior to the August 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  That letter also notified the Veteran of the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013).  The Veteran's service treatment records, private medical records, and VA treatment records are in the claims folder.  

The Veteran was not afforded a VA examination.  Under McClendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.

A VA examination is not necessary because, although there is a currently diagnosed prostate condition, there is no indication of a possible link to service.  While the Veteran believes his prostate condition is related to service, he is not competent to render an opinion in this matter as such requires specialized knowledge, training, or experience due to its medical complexity.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  Further, there is no evidence of continuity or treatment for symptoms shortly after service, or competent evidence indicating a possible link to service.  In other words, there is no indication that the disability or persistent or recurrent symptoms of the disability may be associated with service or with another service-connected disability. Therefore, the need for a VA examination has not been triggered.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 

On his July 2010 VA Form 9, the Veteran requested a hearing before a Veteran's Law Judge. In August 2011, the Veteran canceled his request for a hearing before the Board.  

VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings.  As such, the Veteran will not be prejudiced by a decision on the merits of his claim at this time.

Legal Criteria 

The Veteran essentially contends that he has a prostate disability as a result of his military service.  

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, 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) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 166 (Fed. Cir. 2004).  

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) (2013).

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  Benign prostatic hypertrophy is not a condition listed under 38 C.F.R. § 3.309(a).

Pertinent VA law provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange).  See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013).  For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2013).

Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service.  See 38 C.F.R. § 3.307(a)(6)(ii) (2013).  While prostate cancer is listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), the Veteran's benign prostatic hypertrophy is not listed as a disability associated with herbicide exposure.  

Analysis

The Veteran served in Vietnam, as indicated by his DD-214 and receipt of decorations and awards, including the Vietnam Service Medal and Combat Infantryman Badge.  Herbicide exposure is therefore presumed.  

The record shows that the Veteran currently has a prostate condition.  A June 2009 VA treatment record indicated that the Veteran was diagnosed with benign prostatic hypertrophy.  A July 2009 letter from Dr. H. indicated that the Veteran had benign prostatic hyperplasia (BPH), but that there was no evidence of adenocarcinoma.  On the contrary, a June 2009 letter from Dr. A. indicated that a prostate biopsy had "revealed benign tissue with no evidence of malignancy."  

With respect to Shedden element two, medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, the Board notes that the service treatment records (STRs) do not indicate any treatment, complaint, or diagnosis in service for prostate disability.  Similarly, in a July 2009 statement, Dr. H. observed that the Veteran had a history of prostatitis for approximately 25 years.  This would place an onset of this condition in the mid 1980s more than a decade following his separation from active duty.  Moreover, he has not contended that he has had a prostate disability since service.  Accordingly, service connection based on in-service incurrence of the disability is not warranted.  

With respect to service connection on a presumptive basis due to in-service herbicide exposure, the medical evidence of record clearly indicates that the Veteran does not have prostate cancer.  Accordingly, the chronic disease presumptions are inapplicable.  See 38 C.F.R. §§ 3.307, 3.309(a) (2013).  

Based on the forgoing, the Board concludes that service connection for the Veteran's prostate condition either as directly due to, or as the result of exposure to in-service herbicides is not warranted.  

In reaching this conclusion, the Board has considered the Veteran's lay statements.  The Board acknowledges the Veteran's belief that his precancerous prostate condition is related to his in-service herbicide exposure.  Lay persons are competent to testify as to observations that they perceive through their senses.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's prostate disability and his military service to be complex in nature such that medical evidence of nexus is required.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Simply put, the Veteran is not competent to relate his current prostate condition, which does not include cancer of the prostate, to his presumed in-service herbicide exposure.  Accordingly, his statements regarding the etiology of his current condition lack probative value.  

While the Board sympathizes with the Veteran's current prostate problems, service connection is not warranted.  As the preponderance of the evidence is against service connection for a prostate condition, the benefit of the doubt doctrine is inapplicable and the Veteran's claim must be denied. 38 C.F.R. § 3.102.


ORDER

Service connection for a prostate disability is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs