Citation Nr: 1337387 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 06-20 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an eye disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active service from May 1979 to May 1983 and from August 1985 to April 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal following rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2010, the Veteran testified before the Board during a hearing at the RO. The issues of entitlement to service connection for an eye disability, bilateral hearing loss, and prostate cancer were remanded in January 2011, and most recently in March 2013. In July 2013, the RO issued a supplemental statement of the case (SSOC) continuing the denial of the claims. The case has since been returned to the Board for further appellate review. Also, the Veteran has submitted additional evidence since the July 2013 SSOC. He has waived initial review of the evidence by the RO. See August 2013 Appeals Management Center (AMC) form "Veterans Request For Expedited Processing." The Board accepts the evidence for inclusion into the record on appeal. The issues of service connection for an eye disability and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, nor has it been shown that he was otherwise exposed to herbicide agents. 2. Prostate cancer was not shown in service, and the disability first manifest a number years after service; there is no evidence suggesting a nexus between the Veteran's prostate cancer and his period of service. CONCLUSION OF LAW The Veteran does not have prostate cancer that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The VCAA notice 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. VCAA notice 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). In the current appeal, a pre-decisional letter dated in March 2009 complied with VA's duty to notify the Veteran of what he needed to substantiate his claim for service connection for prostate cancer. Specifically, this letter apprised the Veteran of what the evidence needed to show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from him, what evidence VA was responsible for getting, and what information VA would assist in obtaining on his behalf. Additionally, the letter notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Therefore, adequate notice was provided to the Veteran. The Board finds compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist a Veteran in the development of his claim. In this case, the Veteran's service treatment records (STRs) are associated with the claims folders as are VA and private treatment records. The Veteran has contended that he was treated for problems having to do with his prostate during his time in service. The Veteran's STRs do not reflect any reports of prostate-related symptoms or treatment for a prostate disorder. The Veteran has personally contacted both the Mississippi Adjutant General's (MAG) office as well as the National Personnel Records Center (NPRC) in search of STRs documenting the alleged treatment. The record on appeal includes responses from both the MAG and the NPRC notifying the Veteran that they do not have any STRs associated with his active service. In particular, the NPRC notified the Veteran that his STRs had been sent to VA. Neither the Veteran nor his representative has otherwise identified additional medical evidence (VA or private) pertinent to the claim on appeal that needs to be obtained. Otherwise, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A(d)(2) (West 2002). The United States Court of Appeals for Veterans Claims (Court) further characterized the third requirement of "an indication" that a disability "may be" associated with service as a "low threshold." McLendon, 20 Vet. App. at 83. As noted above, the medical findings noted in the Veteran's STRs do not reflect complaints or treatment with regard to a prostate problem or disorder. The Veteran is also not competent to report having had a prostate disorder and/or cancer in service, as he lacks the medical expertise to do so. See e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Note 4) (Fed. Cir. 2007). Otherwise, there is no evidence establishing that an event, injury, or disease associated with the Veteran's prostate occurred in service (to include symptoms thereof) or otherwise evidence that the Veteran's prostate cancer is related to service. Post-service medical evidence is persuasive in that it does not reflect any treatment for a prostate disorder, such as BPH, prior to evidence of the Veteran's prostate cancer manifesting in November 2008 based on, it appears, an elevated PSA (prostate specific antigen). Therefore, in light of evidence, above, the Board does not find the Veteran's reported history of having been treated in service for problems associated with his prostate to be credible. The Board also finds persuasive that Internet literature from the Mayo Clinic, submitted by the Veteran in May 2009 (see Volume #4 of the claims folders), does not identify a disorder, such as benign prostatic hypertrophy (BPH), as a sign or symptom of prostate cancer. On the contrary, the literature notes that the cause of prostate cancer is unknown, but known risk factors include age, race or ethnicity, family history, diet, and/or high testosterone levels. Therefore, in light of the above, and with consideration of McClendon, the Board finds that VA's duty to assist does not include providing the Veteran with a VA examination for his claim for service connection for prostate cancer. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim for service connection for prostate cancer. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. See also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a malignant tumor (in the present case, within the prostate-adenocarcinoma) becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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. As noted above, the Veteran's STRs do not reveal complaints or treatment for a prostate disorder, to include prostate cancer. The lack of such records does not, in and of itself, render the Veteran's statements regarding the disability not credible. In essence, if it is concluded that lay evidence presented by a Veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove his claim for service connection based on that lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nonetheless, the Board may draw a reasonable inference from a lack of notation of a condition in a medical report, if the report would be expected to carry such information. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). At the same time, the Board may not reject the Veteran's statements regarding any in-service injury without properly assessing the weight and credibility of the statements. See Washington v. Nicholson, 19 Vet. App. 362 (2005). In the present case, the Veteran was released from active service in April 2001. Associated with the Veteran's STRs, a January 2001 Report of Medical Assessment reflects medical concerns regarding a number of physical problems, but not about the prostate or any prostate disorder. A May 2002 VA treatment record noted the prostate to be soft and symmetrical on evaluation. A July 2002 VA treatment record identified the Veteran's report of no bladder dysfunction. A December 2004 private treatment record noted a reported history of mild BPH. VA treatment records dated in September 2007 and August 2007 note the lack of thin or slow urinary stream. A November 2008 VA treatment record identified that in October 2008, examination of the Veteran's prostate had been normal. A December 2008 VA treatment record reported that the Veteran's PSA had been elevated in November 2008. Thereafter, a January 2009 VA treatment record notes that the Veteran's prostate was biopsied on December 15, 2008, due to an elevated PSA and he was found to have prostate cancer (adenocarcinoma). Therefore, the evidence documents that the first evidence of the Veteran's prostate cancer appears to have been in November 2008 based on an elevated PSA. This was more than one year following the Veteran's release from active service in April 2001. As such, service connection for prostate cancer, based on its classification as a malignant tumor, on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309(a), is not warranted. The record on appeal also does not contain a medical opinion relating the Veteran's prostate cancer to his period of military service. Thus, as the Veteran's prostate cancer first manifest some seven years following service and there is a lack of competent evidence relating the disability to service, the Board finds that service connection for prostate cancer, on a direct basis to service, is not warranted. The Board also notes that the Veteran has alleged that while serving in Europe, in particular Germany, he was exposed to Agent Orange working around trucks, tanks, and other motorized vehicles that he alleges were used in Vietnam. Furthermore, the Veteran has also alleged that he was exposed to chemicals, such as Agent Orange, that were stored at the military bases he was stationed in Germany and, it appears, Brussels. The Veteran has also reported having been exposed to radiation in service. VA regulations provide that certain diseases associated with exposure to herbicide agents 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 prostate cancer. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Here, the evidence does not reflect, nor has it been contended, that the Veteran served in Vietnam. As such, he is not presumed to have been exposed to an herbicide agent during service. Also, the Veteran has not presented any evidence of his alleged exposure to Agent Orange while stationed overseas in Europe. The Board finds persuasive that VA's Office of Public Health does not identify Germany or any base in Germany (or other European base location), as a testing site or storage area for Agent Orange. (See www.publichealth.va.gov/exposures/agentorange.) Regarding contact with vehicles reportedly sprayed with Agent Orange, there is no established presumption of exposure to Agent Orange based on a service member's contact with a vehicle that was used in Vietnam. Of note, the Department of Veterans Affairs did addressed residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange. VA's Office of Public Health is noted to have thoroughly reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal. (See www.publichealth.va.gov/exposures/agentorange.) Otherwise, other than his unsubstantiated allegations, there simply is no evidence that the Veteran was exposed to Agent Orange or other herbicides based on his contact with any military vehicle that may have once been used in Vietnam. The Board has also considered the Veteran's allegation that he was exposed to toxic chemicals and/or radiation while serving in the military, and that such exposure may have led to his developing prostate cancer. The Board notes that presumptive service connection for prostate cancer is not warranted based on radiation exposure. See 38 U.S.C.A. § 1112(c)(1), (2); 38 C.F.R. §§ 3.307, 3.309(d) (2013). Furthermore, the record on appeal does not contain any evidence that the Veteran's prostate cancer has been related to radiation and/or toxic chemical exposure (which could include Agent Orange or other known herbicide). The Board emphasizes that, 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-whether the Veteran's prostate cancer is related to his active service or otherwise to any form of herbicide, radiation, and/or toxic chemical exposure, falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau, supra. Accordingly, and based on this evidentiary posture, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for prostate cancer. Because the preponderance of the evidence is against the claim, the benefit of doubt provision does not apply. Therefore, service connection for prostate cancer is not warranted. ORDER Service connection for prostate cancer is denied. REMAND Concerning the issue of bilateral hearing loss, the Veteran filed his claim for service connection in March 2005. Private medical evidence dated in February 2005 and July 2006 reflects a diagnosis of bilateral sensorineural hearing loss, moderately severe, and that the Veteran used hearing aids. The February 2005 audiometric test (in graph form) appears to reflect pure tone thresholds at 40 decibels and higher from 500 Hertz to 4000 Hertz. Thereafter, in August 2006, VA audiological testing revealed normal hearing for VA benefit purposes with word discrimination of 100 percent. The clinician noted that the Veteran could possibly experience hearing loss secondary to fluid (presumably fluid in the inner ear). Subsequent VA audiological testing in April 2009 again revealed normal hearing with word discrimination of 100 percent. (Parenthetically, it does not appear that word discrimination testing at the time of the August 2006 and the April 2009 examinations was conducted using the Maryland CNC test.) Audiological testing by VA in February 2011 revealed significant hearing loss, however, the clinician indicated that pure tone results were not reliable. A December 2011 VA audiometric DBQ (Disability Benefits Questionnaire) revealed normal hearing bilaterally. Speech discrimination scores based on the Maryland CNC test were 94 percent bilaterally. In the present case, since the filing of the Veteran's claim for service connection for bilateral hearing loss in March 2005, and prior to the August 2006 VA audiological testing, the evidence of record demonstrates the Veteran as suffering from moderately severe bilaterally hearing loss. The February 2005 private audiometric testing, on its face, reflects a level of hearing loss that would meet the requirements of 38 C.F.R. § 3.385 for the purpose of establishing a disability for VA purposes. Whether the private audiological test results, on which the diagnosis of bilateral hearing loss is based, are accurate and/or reliable is unknown, as no VA clinician has ever addressed the private audiological findings. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to VA's adjudication of the claim. Under such circumstances, provided the resolved disability is related to service, a claimant would be entitled to consideration of staged ratings. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2011 VA audiologist opined that the Veteran's hearing loss was not related to service based on "[c]urrent audiometric test results indicate normal hearing." The examiner failed to address the private audiological test results from February 2005, and as noted above, under McClain,21 Vet. App. at 321, a staged rating could theoretically be warranted. Therefore, remand is warranted to allow a VA examiner to address and consider the February 2005 audiometric test results in light of the discrepancy between those results and later audiometric findings by VA. As for the issue of an eye disability, the Veteran states that he suffered trauma to his right eye related to firing a light anti-tank weapon (LAW) and a M203 grenade launcher. The Veteran has also alleged in a May 2006 VA Form 21-4142 that he fell and hit his left eye on an object while dismounting from a truck during a night convoy movement. Furthermore, the Veteran has alleged a bilateral loss of visual acuity secondary to sand, grit and diesel fuel while riding in uncovered trucks. Of note, a private treatment record, dated in October 2002, notes the Veteran's history of being hit five years previously in the right eye with a LAW. He also reported cutting his left eye with wire during training. In its March 2013 remand instructions, the Board requested that a VA examiner determine whether the Veteran had a chronic eye disability, other than a refractive error, and whether any such disability was at least as likely as not of service origin. In doing so, the examiner was asked to address whether there were any residuals of an eye injury such as that claimed by the Veteran, above, as well as post-service records showing an abnormality thought to be suspicious for glaucoma. The Veteran's complaints of blurred vision and the diagnosis of early nuclear sclerosis were also requested to be addressed. Following the Board's remand, the Veteran was examined by the same examiner who had conducted a February 2011 VA eye examination and who had provided the diagnosis of early nuclear sclerosis. In a May 2013 VA DBQ, the examiner identified the Veteran's visual acuity for both eyes but otherwise provided none of the Board's requested information from the remand. The DBQ reflects the VA examiner's checking of the box marked "No" to a number of the questions in the DBQ or not checking any boxes to some of the questions. On its face, the May 2013 DBQ might appear to indicate a lack of any eye disability other than refractive error. Notwithstanding that fact, the examiner failed to address the Board's requested information, in particular, whether the Veteran had any residual right eye disability secondary to his reported injury due to a LAW in service. The examiner also did not comment further on his original diagnosis of nuclear sclerosis or to the request for information regarding possible glaucoma. The Board is also mindful that the VA examiner, in his previous February 2011 VA examination, identified the Veteran as having a corneal scar in the left eye that reportedly did not interfere with the Veteran's visual acuity. The Board's March 2013 remand conferred on the Veteran the right to compliance with the remand orders, as a matter of law. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As already explained herein, however, the Board's remand orders were not fully complied with. Thus, the claim for service connection for an eye disability is remanded for an addendum medical opinion to allow the examiner to provide the information requested in the Board's March 2013 remand order. Furthermore, the Veteran's most recent VA treatment records are dated from September 2012. The RO should obtain any available VA treatment records dated since that time. Accordingly, the claims are REMANDED for the following action: 1. Obtain any available VA treatment records dated since September 2012. 2. After completion of the above, the claims folders should be referred to the audiologist was conducted the December 2011 VA audiological (DBQ) examination. The claims folders must be made available to the examiner for review in connection with the addendum opinion. In particular, the audiologist, should address the diagnosis of moderately severe bilateral hearing loss by a private audiologist in February 2005 (see Volume # 1 of the claims folders). The audiologist should identify whether the finding in February 2005 is accurate and/or reliable in light of subsequent findings on VA examination, beginning in August 2006, of normal hearing. Otherwise, the examiner should identify the etiology of the bilateral hearing loss diagnosed in February 2005 and whether it is at least as likely as not that the hearing loss is attributable to the Veteran's period of active military service or otherwise to service-connected disability (e.g., sinus disorder). See McClain v. Nicholson, 21 Vet. App. at 321 (the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to VA's adjudication of the claim). The medical basis for any conclusion reached should be thoroughly explained, to include an explanation for a finding that the examiner is unable to render an opinion without resorting to speculation. If the December 2011 VA examiner is not available to provide an addendum opinion, make arrangements for the Veteran to undergo an additional VA audiological examination and the examiner, following his/her review of the claims folders, should be asked to supply the requested opinion. 3. The claims folders should be referred to the physician who conducted the February 2011 and May 2013 examinations of the Veteran's eyes. The claims folders must be made available to the examiner for review in connection with the addendum opinion. The examiner should specifically report whether the Veteran has a chronic eye disability, other than a refractive error, and whether any such disability is at least as likely as not attributable to the Veteran's period of active military service. In doing so, the examiner should address the following questions: a. Is there any residual right eye disability consistent with the Veteran's reported trauma to his right eye secondary to recoil of a light anti-tank weapon (LAW) and/or an M203 grenade launcher? b. Does the Veteran suffer from glaucoma, nuclear sclerosis, and/or a corneal scar of the left eye? If so, are any of these disabilities at least as likely as not attributable to the Veteran's period of service? c. What is the likely etiology of the Veteran's reported blurry vision? The medical basis for any conclusion reached should be thoroughly explained, to include an explanation for a finding that the examiner is unable to render an opinion without resorting to speculation. If the May 2013 VA examiner is not available to provide an addendum opinion, make arrangements for the Veteran to undergo an additional VA eye examination and the examiner, following his review of the claims folders, should be asked to supply the requested opinion. 4. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the claims for service connection for an eye disability and for bilateral hearing loss on appeal. If any benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs