Citation Nr: 1338269 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 12-17 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for a heart disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issue of entitlement to service connection for a heart disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's service treatment records do not reflect abnormal clinical findings of the prostate or a diagnosed prostate condition, including prostate cancer. 2. The competent and credible evidence of record does not relate the Veteran's diagnosed prostate cancer to his military service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A January 2011 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records, and identified private medical records have been obtained; the Veteran has not identified any private treatment records pertinent to his appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A VA examination with respect to the Veteran's prostate cancer claim was not completed as no questions of medical fact requiring resolution were posed by the medical and lay evidence of record. 38 C.F.R. § 3.159(c) (4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In a November 2006 statement, the Veteran notified VA that he had been granted benefits from the Social Security Administration (SSA) based on his hypertension disability. However, the Board finds that VA need not obtain those records prior to adjudicating the Veteran's claim for service connection for prostate cancer. This is because the evidence establishes that the Veteran's prostate cancer was first diagnosed in November 2006; thus, if the Veteran were reporting that he was already in receipt of SSA benefits in November 2006, it is nearly impossible that relevant records concerning his prostate cancer were including in SSA's records review prior to their benefit award, especially considering that the Veteran has not identified any relevant private treatment records concerning his prostate cancer and the record contains VA treatment records dating back to 1997. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). "When a SSA decision pertains to a completely unrelated medical condition and the veteran makes no specific allegations that would give rise to a reasonable belief that the medical records may nonetheless pertain to the injury for which the veteran seeks benefits, relevance is not established." Id. at 1323. Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (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, 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). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (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 United States Court of Appeals for Veterans Claims (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, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). VA regulations also provide that, if a veteran were exposed to an herbicide agent during active service, presumptive service connection may be warranted for certain diseases, including prostate cancer. 38 C.F.R. §§ 3.307, 3.309 (2013); see also 78 Fed. Reg. 21,258 (May 7, 2009); 75 Fed. Reg. 53,202 (Aug. 31, 2010). However, the Veteran's representative acknowledged in his April 2013 statement that there was no evidence that the Veteran ever served in Vietnam for the purposes of presumptive service connection under 38 C.F.R. § 3.309 (e). The remaining evidence of record supports this assertion. The National Personnel Records Center (NPRC) notified VA in January 2011 that there was no evidence in the Veteran's personnel file to suggest qualifying in-country Vietnam service. Further, his Department of Defense Forms 214 do not indicate Vietnam service, and the remainder of his service personnel records reflects overseas service in Japan only. Accordingly, service connection for prostate cancer on a presumptive basis due to herbicide exposure is not warranted. The Veteran's service treatment records do not reflect abnormal clinical findings of the prostate or a diagnosed prostate condition, including prostate cancer. The Veteran's February 1973 reenlistment and January 1977 service separation examinations both indicate no clinical abnormalities of the prostate. The Veteran also denied experiencing any genitourinary symptoms in the January 1977 report of medical history. After service, VA outpatient treatment records dated from January 1997 do not reflect abnormal prostate clinical findings or a diagnosed prostate condition until September 2006, when the Veteran's prostate specific antigen (PSA) laboratory result was noted as 4.42, and a follow-up examination was recommended. Subsequently, a November 2006 prostate biopsy showed adenocarcinoma (a cancerous tumor), after which the Veteran underwent treatment for prostate cancer. VA treatment records since that time reflect PSA lab results of 2.0 or less. Based on the record on appeal, the Board finds that the preponderance of the evidence shows that the Veteran's prostate cancer is not related to or had its onset in service. Abnormal PSA levels were not documented during service or until September 2006, almost 30 years after the Veteran's separation from service. Importantly, PSA levels within normal limits are documented immediately prior to that time; VA outpatient treatment records indicate that the Veteran's PSA levels were 2.57 in September 2004, and 3.12 in November 2005. See, c.f., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that lack of contemporaneous documentation does not rule out the possibility that such symptomatology existed). Further, the record does not contain a medical nexus opinion relating the Veteran's prostate cancer directly to his military service. While the Veteran's statements and that of his representative as to the nexus between his military service and his prostate cancer diagnosis have been considered, as laypersons neither the Veteran nor his representative are competent to render medical opinions as to the etiology of cancer. Compare Barr v. Nicholson, 21 Vet. App. 303 (2007), to Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Veteran's claim for service connection must be denied. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer is denied. REMAND In a November 2006 statement, the Veteran notified VA that he had been granted benefits from the Social Security Administration (SSA) based on his hypertension disability. Review of the claims file does not reflect that VA has sought these records. The United States Court of Appeals for the Federal Circuit has held that SSA records must be sought when, as here, they are directly relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veterans Claims Assistance Act of 2000 also emphasizes the need for VA to obtain records from other Government agencies. 38 U.S.C.A. § 5103A (b) (3), (c) (3) (West 2002). Remand is required so that the SSA records may be obtained. Additionally, in her January 2011 report, the VA examiner diagnosed essential hypertension, and found that the Veteran did not have hypertensive heart disease. However, elsewhere in the report, the examiner indicated that the Veteran had been prescribed medication for both his service-connected hypertension and for heart disease, and noted the Veteran's history of myocardial infarction and hypertensive heart disease. Further, VA treatment records from January 1997 reflect that the Veteran was treated in the emergency room for chest pain, hypertension, and syncope; the discharge diagnoses included hypertension and angina pectoris. Here, the Board finds the January 2011 VA examination inadequate as it appears to ignore the Veteran's prior diagnosis of angina, and as such, did not offer a nexus opinion as to the relationship between the Veteran's angina, his military service, and his service-connected hypertension. Especially because the Veteran's hypertension is documented in his service treatment records, consideration must be given not only to whether the Veteran's heart condition is directly related to service, but also to whether it was caused (the direct result) or aggravated (worsened beyond the natural progress of the condition) by the Veteran's service-connected hypertension. In El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013), the United States Court of Appeals for Veterans Claims (Court) vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. In light of the need for a medical opinion based on the Veteran's entire medical history, both as to whether there is a direct or secondary nexus between the Veteran's heart condition, his military service, and his service-connected hypertension, the Board finds that this matter must be remanded to obtain an addendum to the January 2011 VA examination report. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the issue of entitlement to service connection for a heart condition is REMANDED for the following actions: 1. Contact SSA and request that they provide a copy of all materials, to include medical records and disability benefits determinations, considered in conjunction with the Veteran's past claim(s) for SSA benefits. Once obtained, associate these records with the claims file. If records are not available, include a note to that effect in the Veteran's claims file. 2. After associating any pertinent, outstanding records, send the Veteran's claims folder to the examiner who conducted the January 2011 VA examination, or if the examiner is no longer available, a suitable replacement, to request that the examiner prepare an addendum to the January 2011 VA examination report that specifically addresses whether the Veteran's heart disability, to include coronary artery disease and angina are at least as likely as not (1) directly related to his military service, (2) caused by (the direct result of) his service-connected hypertension, or (3) aggravated (beyond the natural progression of the condition) by his service-connected hypertension. The examiner is asked to fully explain any opinion offered. 3. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs