Citation Nr: 1340495 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-09 664 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a prostate disorder. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to October 1969. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in August 2012 and May 2013. This appeal was processed using a VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam in 1969. 2. The Veteran's prostate disorder, diagnosed as benign prostate hypertrophy (BPH), was not present during service or for many years after service; it is not otherwise attributable to the Veteran's period of military service. CONCLUSION OF LAW The Veteran does not have a prostate disorder that is the result of disease or injury incurred in or aggravated by active military service, and it may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing the claim. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to potentially relevant treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's August 2012 and May 2013 remands, VA obtained additional VA treatment records and made two attempts to obtain the Veteran's private treatment records from a Dr. Weinberg. When those attempts proved unsuccessful, the Veteran was notified and asked to submit these records himself. VA then provided the Veteran with a medical examination in October 2013. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. The examiner then offered an opinion, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the August 2012 and May 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis As an initial matter, the Board notes that the Veteran's service records show service in the Republic of Vietnam from February to March 1969 and from May to August 1969. Exposure to an herbicide agent is presumed for veterans who had active service in the Republic of Vietnam during the Vietnam Era (from January 9, 1962 to May 7, 1975). 38 U.S.C.A. § 1116(f). A such, the Veteran is presumed to have been exposed to herbicides, such as Agent Orange, during his active duty military service. Prostate cancer is the only prostate disorder listed among the conditions for which service connection can be presumed if the Veteran is found to have been exposed to herbicides. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The record does not contain a diagnosis of prostate cancer. Therefore, presumptive service connection based on herbicide exposure is not warranted. Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claim still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). During the claim period, the Veteran has been consistently diagnosed with benign prostate hypertrophy (BPH). Thus, the current disability requirement is satisfied. The Veteran has reported that his prostate symptoms began in service and that he was hospitalized for this in December 1968. See February 2007 statement, October 2012 statement. The Veteran is competent to provide lay evidence of this hospitalization and his symptoms; however, the Board finds his account not credible. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain). In particular, the Veteran's account is inconsistent with his statements made at the time of his original claim in January 2006 and with the medical evidence contained in his service treatment records. At the time of his original claim, the Veteran associated his prostate condition with his exposure to Agent Orange. Additionally, he reported in-service hospitalization for gastric problems in December 1968 at the 36th Evacuation Hospital, Vung Tau, Republic of Vietnam. Further development has confirmed that he was hospitalized for epigastric pain at that time and at that hospital. During a rectal examination, the Veteran was found to have a nodule. That nodule was later found to be a normal, but easily palpable seminal vesicle. To the extent that records from this hospitalization refer to his prostate, it was found to be within normal limits. In this way, the records of the Veteran's December 1968 hospitalization are at odds with his recent contention that he was told he had an enlarged prostate at that time. Not only does this medical evidence show that the Veteran's prostate was not the reason for his hospitalization, but it also shows that when checked in conjunction with the evaluation for epigastric distress, his prostate was found to be normal. As such, the Veteran's statements are found to be incredible. Further review of his service treatment records shows that they are silent with regard to any prostate disorder. Indeed, his September 1969 separation examination, March 1971 annual reserve examination, and March 1971 Report of Medical History show no prostate complaints or abnormalities and no complaints of urinary symptoms. Indeed, the first medical evidence of record showing any prostate disorder is dated several decades after the Veteran's separation from service. As stated above, however, the Veteran is presumed to have been exposed to herbicides during his active duty service. Thus, the in-service injury requirement is met with regard to that exposure alone. The remaining question is whether the Veteran's current BPH is causally linked to his active duty military service. To this end, the Veteran underwent a VA examination in October 2013. This examiner found that the Veteran's BPH was less likely than not incurred in or caused by his military service, noting that the Veteran did not have prostate cancer and that he did not have a history of prostate problems during service. There is no positive medical nexus opinion of record. To the extent that the Veteran himself believes that a prostate disorder is due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. Thus, the Board finds that the medical nexus requirement has not been met. In sum, the preponderance of the evidence is against the claim of entitlement to service connection for a prostate disorder. The benefit sought on appeal is accordingly denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a prostate disorder is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs