Citation Nr: 1340079 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-10 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1955 to February 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2012 hearing conducted via videoconference. A transcript of the hearing is of record. In April 2013, the Board remanded the Veteran's claim. The Appeals Management Center (AMC) continued the previous denial of the claim in a September 2013 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board has also reviewed the records in the Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of the electronic records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's currently diagnosed prostate cancer is not related to his military service. CONCLUSION OF LAW Prostate cancer was not incurred in active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for prostate cancer. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in April 2013, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) or AMC to contact the Veteran in order to obtain outstanding private treatment records and service personnel records as well as obtain a VA opinion as to the etiology of the Veteran's prostate cancer. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the AMC contacted the Veteran in May 2013 requesting that he submit a medical authorization form in order for outstanding private treatment records to be obtained. Additionally, the Veteran's service personnel records were obtained and associated with the claims folder. Furthermore, a VA opinion was obtained in September 2013 as to the etiology of the Veteran's prostate cancer. The Veteran's claim was thereafter readjudicated via the September 2013 SSOC. Accordingly, the Board's remand instructions have been substantially complied with. 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]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the disability rating and effective-date elements of the claim, by a letter mailed in April 2010, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In the instant case, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. The pertinent evidence of record includes statements from the Veteran, his service treatment records, as well as VA and private treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue on appeal during the hearing and specifically discussed the Veteran's prostate cancer symptomatology, and medical evidence was thereafter submitted pertaining to a relationship between the Veteran's current prostate cancer and his military service. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the criteria necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that in January 2012, the Veteran submitted a private medical opinion dated July 2010 from D.K., M.D., in support of his claim. Pursuant to the May 2013 Board Remand, in a May 2013 letter, the AMC requested that the Veteran return a signed and dated VA Form 21-242 Authorization and Consent to Release Information in order to obtain all records from Dr. D.K. As evidenced by the claims folder, the Veteran did not return a signed and dated medical authorization form. Although the absence of the private treatment records from Dr. D.K. is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records. The Veteran has an obligation to assist VA in the development of his prostate cancer claim by providing a signed and dated medical authorization form. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. A VA opinion as to the etiology of the Veteran's prostate cancer was obtained in September 2013. The VA opinion reflects that the examiner reviewed the Veteran's medical history and provided an opinion that was supported by a rationale. The Board therefore concludes that the VA opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. Moreover, he testified at a videoconference hearing in January 2012. Accordingly, the Board will proceed to a decision as to the issue of entitlement to service connection for prostate cancer. Service connection for prostate cancer The Veteran contends that his current prostate cancer is related to his military service, specifically from exposure to heat, jet fuel, cleaning solvents, and napalm while serving aboard the USS Wasp. See, e.g., the January 2012 Board hearing transcript, pgs. 3-4. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including malignant tumors, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). In order to establish service connection for the claimed disorder, there must be (1) 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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 or 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). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board initially notes that the record does not reflect any manifestations of prostate cancer during the one-year presumptive period after the Veteran's separation from service. On the contrary, the record does not reflect any complaints or findings of prostate cancer for more than 50 years after the Veteran's separation from service. Accordingly, service connection is not warranted on a presumptive basis for chronic disease. 38 C.F.R. §§ 3.307, 3.309. The Board also notes that the Veteran has not contended that his prostate cancer is due to exposure to in-service exposure to herbicides, nor does the evidence of record otherwise reflect such. Therefore, service connection is not warranted on a presumptive basis for exposure to herbicides. 38 C.F.R. § 3.309(e). Having determined that service connection is not warranted on a presumptive basis, the Board will turn to whether service connection is warranted on a direct basis. As noted above, in order for service connection to be granted on a direct basis, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) nexus. See Hickson, supra. As to Hickson element (1), the medical evidence of record indicates a current diagnosis of prostate cancer. See, e.g., a VA treatment record dated October 2010. Hickson element (1) is therefore met. With respect to Hickson element (2), evidence of an in-service incurrence of a disease or injury, as indicated above, the Veteran contends that during his period of service aboard the USS Wasp, he fueled aircraft and was exposed to heat from the sun, jet fuel, cleaning solvents, and napalm. The Board observes that the Veteran's service treatment records are absent complaints of or treatment for prostate cancer. However, the Board notes that the Veteran is competent to attest to being exposed to heat, jet fuel, and cleaning solvents. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of this exposure. Moreover, his available personnel records confirm service aboard the USS Wasp. Hickson element (2) is therefore arguably satisfied. Turning to crucial element (3), nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's current prostate cancer is related to his military service. Specifically, in September 2013, a VA opinion was obtained as to the etiology of the Veteran's prostate cancer. The VA examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran's prostate cancer was incurred in or caused by his military service. The examiner's rationale for his conclusion was based on his review of medical literature and his finding that it is at least as likely as not that the Veteran's prostate cancer is a result of risk in the general population. He further reported that the chemicals the Veteran contends he was exposed to in service that led to his current prostate cancer are not listed as risk factors for prostate cancer. He also noted that the Veteran was 72 years old when the diagnosis of prostate cancer was noted in 2010, and that advancing age is a major risk factor for prostate cancer. Indeed, from his review of medical literature, the examiner reported that risk factors for prostate cancer include age, ethnicity, family studies, genetic environmental interaction, diet, folic acid, zinc, environmental carcinogens, Agent Orange, and chlordecone. The September 2013 VA opinion was based upon thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, in rendering the opinion, the VA examiner considered the Veteran's service treatment records and report of in-service exposure to sun light and chemicals, and thereafter indicated that the Veteran's military service did not cause his current prostate cancer. The Board notes that the Veteran submitted a private medical opinion dated July 2010 from Dr. D.K. who opined that it is "certainly possible" that the various chemicals the Veteran used during service aboard the USS Wasp including napalm and aviation fuel contributed to the development of his prostate cancer. Crucially, however, the Court has held that medical evidence which is speculative, general or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In light of the foregoing, the Board finds that the opinion rendered by Dr. D.K. is of no probative value. Accordingly, the September 2013 VA medical opinion has been given greater probative weight. To the extent that the Veteran asserts that his prostate cancer is related to his military service, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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) (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). However, in this case, the Veteran's statements that he has prostate cancer that is due to service relates to an etiological question as to an internal, not directly observable disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran concerning a relationship between his prostate cancer and military service are therefore not competent in this regard. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, the first postservice evidence of complaint of, or treatment for, symptoms associated with prostate cancer is dated March 2010. See a VA treatment record dated March 2010. This was more than 50 years after the Veteran left service in February 1959. The Board also notes that symptoms associated with prostate cancer were not reported at the time of his service discharge. His January 1959 separation examination from service as well as the September 2013 VA opinion contradict any current assertion that his current prostate cancer was manifested during service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, Hickson element (3) is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for prostate cancer. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for prostate cancer is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs