Citation Nr: 1410179 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-19 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for prostate cancer or other acquired prostate disorder. 2. Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder. 3. Entitlement to an increased rating for residuals of shell fragment wounds, currently rated 30 percent. REPRESENTATION Appellant represented by: B. S. McDaniel, Agent WITNESSES AT HEARING ON APPEAL The Veteran, P.S., and L. H. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from April 1968 to April 1970. He was awarded the Purple Heart Medal and Combat Infantryman Badge (CIB) for service in the Republic of South Vietnam. This appeal arises to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that in pertinent part denied service connection for prostate cancer, granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating and continued a 30 percent rating for residuals of shell fragment wounds of the left upper extremity. The decision also denied a claim for service connection for diabetes; however, that claim has since been granted and need not be discussed further. Since issuance of a statement of the case in June 2011, new evidence was received along with a waiver of the Veteran's right to initial RO consideration. Thus, a remand will not be necessary for this procedural safeguard. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The record before the Board consists of a paper claims file and electronic files. Entitlement to an initial rating greater than 30 percent for PTSD and entitlement to an increased rating for residuals of shell fragment wounds are REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. No competent evidence of prostate cancer has been submitted. 2. The Veteran has not claimed continuous benign prostatic hypertrophy symptoms or other urinary symptoms since active service; benign prostatic hypertrophy was first detected in 2009; urinary leakage was first reported in 2011. 3. No competent evidence tending to relate benign prostatic hypertrophy or urinary leakage with active service, or to exposure to Agent Orange, or to any service-connected disability, has been submitted. CONCLUSION OF LAW Neither prostate cancer, or benign prostatic hypertrophy, or urinary leakage, or other acquired prostate disorder was incurred in active military service, nor may any of these claimed disorders be presumed to be incurred in active military service, nor are they secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in June 2009. The letter was sent prior to the March 2010 unfavorable decision by the RO. VA's duty to assist the Veteran in the development of the claim has also been met. Service treatment records (STRs) and all pertinent VA records have been obtained and associated with the file. The RO obtained all pertinent private clinical records from Duke University Medical Center-Duke Prostate Center and from Danville Urologic Clinic. With respect to prostate cancer, benign prostatic hypertrophy, or other urinary symptom, no VA examination has been conducted. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In McLendon, the Court discussed how to determine whether a VA examination is necessary prior to adjudication of a claim. VA must provide a 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, 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i). The Court observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Further, in Duena v. Principi, 18 Vet. App. 512, 518-19 (2004), the Court held that when the Board considers whether a medical examination or opinion is necessary under 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c) (4), it must provide a written statement of the reasons and bases for its conclusion. In addition, the Court stressed that the Board should make factual findings with respect to the four elements set forth above. McLendon, 20 Vet. App. at 86; see also Hensley v. West, 212 F.3d 1255, 1263-64 (2000). Where the Board makes a determination that a VA examination is not necessary to decide a service connection claim, it is important to include a discussion that fully sets forth the reasons and bases in support of the determination. Such discussion is as follows: A VA examination is unnecessary in this case because: (1) although there is competent medical evidence of benign prostatic hypertrophy and competent lay evidence of urinary leakage, these disabilities arose several decades after active service and there is no competent evidence suggesting that either occurred in service, or that a disease listed at either 38 C.F.R. § 3.309(a) or (e) became manifested during an applicable presumptive period for which the claimant qualifies; (2) there is no indication that benign prostatic hypertrophy or urinary leakage may be associated with the Veteran's active service, or with exposure to Agent Orange, or with another service-connected disability; and (3) there is sufficient competent medical evidence on file for VA to make an informed decision on the claim. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for certain chronic diseases, including any malignant tumor, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309 (a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). Where a chronic disease under § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" (Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013), or in the presumptive period so as to permit a finding of service connection, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent (such as Agent Orange), 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, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (f) (West 2002). The specified diseases for which presumptive service connection is available for those Veterans who have been exposed to Agent Orange include prostate cancer, but do not include benign prostatic hypertrophy or urinary leakage. 38 C.F.R. § 3.309 (e) (2013). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. 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 such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the 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 evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). Although the Veteran is a combat-veteran, the claimed disabilities (prostate cancer and benign prostatic hypertrophy) are not combat-related. Therefore, the burden of proof does not shift to the Government to show that a claimed disability was not incurred in combat. Dambach v.Gober, 223 F.3d 1376, 1381 (Fed. Cir. 2000), (where a veteran produces evidence of symptomatic manifestations during or proximate to combat, aggravation or incurrence will be established, citing Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994); then, the government has the burden to rebut by clear and unmistakable evidence. Id.). The Veteran's STRs do not mention prostate cancer or any prostate-related complaint or treatment. In May 2009, he requested service connection for prostate cancer and asked that the RO obtain clinical records from Durham VA Medical Center and from "Duke." The RO obtained all pertinent clinical records from Durham VA Medical Center, from Duke University Medical Center-Duke Prostate Center, and additional records from Danville Urologic Clinic. These show that because a high PSA (prostate-specific antigen) and because benign prostatic hypertrophy (also called benign prostatic hyperplasia) were detected in early 2009, a needle biopsy of the prostate gland was performed in April 2009. The biopsy was negative, that is, no cancer cells were found. In August 2011, the Veteran testified before the undersigned Veterans Law Judge that he first became aware of an enlarged prostate when he was examined in Danville, which to the best of his recollection, was sometime after 2000. He recalled that a physician's assistant told him that his enlarged prostate might be related to Agent Orange. He also testified that he had urinary leakage problems. There has been no evidence of prostate cancer, although the Veteran is being watched for such a development and he is concerned that his exposure to Agent Orange in Vietnam might yet cause prostate cancer. The Board must address the competency, credibility, and probative value of all evidence, including lay evidence. 38 U.S.C.A. § 7104(d) (1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). However, the determination of an issue involving a question of medical expertise requires further analysis of the Veteran's competency. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, the Veteran is competent to notice the onset of urinary leakage; however, he is not competent to attribute such symptom to exposure to Agent Orange. Because no medical professional has offered such an etiology, the Veteran's opinion on this matter can be afforded no weight. The claim for service connection for prostate cancer must be denied, as prostate cancer has never been found. The Court has specifically disallowed service connection where there is no present disability: "[c]ongress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim [for service connection]." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With respect to benign prostatic hypertrophy, competent evidence that tends to relate this directly to active service, or to exposure to Agent Orange, or to any service-connected disability, has not been submitted. The Veteran has not claimed continuous benign prostatic hypertrophy symptoms since active service. In fact, he testified that no relevant symptom arose until sometime after 2000. Thus, there is no basis on which to grant service connection for benign prostatic hypertrophy or urinary leakage. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The service connection claims must therefore be denied. ORDER Service connection for prostate cancer, benign prostatic hypertrophy, urinary leakage, or other acquired prostate disorder, is denied. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion where such is necessary to make a decision on the claim. See 38 U.S.C. § 5103 (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Caffrey v Brown, 6 Vet App 377, 381 (1994), the Court held that where evidence indicated a material change in the disability or indicated that the current rating may be incorrect, a fresh medical examination was required. With respect to the current PTSD rating, the Veteran testified before the undersigned Veterans Law Judge that he feels that PTSD has worsened since a VA PTSD compensation examination of October 2009. During that examination, a Global Assessment of functioning (GAF) score of 52 was assigned. He recently submitted a private psychiatric evaluation dated in February 2013 wherein a GAF score of 39 was assigned. Because a worsening of PTSD symptoms since the VA compensation examination is strongly suggested by this new evidence, the Veteran should be re-examined to determine the severity of his PTSD. Accordingly, the case is REMANDED for the following action: 1. The AMC or RO must review the claims files and electronic files ensure that any recent pertinent medical evidence has been associated with the files. 2. The AMC or RO must also notify the Veteran that it is his responsibility to report for any scheduled VA examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination, without good cause, may result the denial of benefits. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, the notice of the scheduled examination must be associated with the claims files. The claims files must indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested above has been completed to the extent possible, the AMC or RO should make arrangements for appropriate examinations to determine the current severity of PTSD and residuals of a left upper extremity gunshot wound. The claims file and any electronic files should be made available to the examiners for review. The examiners are asked to review the pertinent medical history, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis, if appropriate. Any indicated test and study must be accomplished. A rationale for any opinion should be given. The examination report must be legible. 4. After the development requested above has been completed to the extent possible, the AMC or RO should re-adjudicate the increased rating claims. 5. Following the above, the AMC or RO should review all the relevant evidence and re-adjudicate the claims. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his agent should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice. 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the matter or 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 that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs