Citation Nr: 1746951	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  15-16 277	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for prostate cancer.


REPRESENTATION

Veteran represented by: Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

A. Snoparsky, Associate Counsel


INTRODUCTION

The Veteran had periods of active duty military service in the United States Navy from August 1954 to September 1975.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The more probative evidence fails to demonstrate that the Veteran currently has, or has had at any time during the appeal period, a diagnosis of prostate cancer.


CONCLUSION OF LAW

The criteria for the establishment of service connection for prostate cancer are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014), 38 C.F.R. § 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Assist and to Notify

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).



II.   Merits of the Claim

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). 

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. 
§ 3.307 (d) are also satisfied. The current list of diseases is found at 38 C.F.R. 
§ 3.309 (e).

A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In order to establish a claim for service connection, the Veteran must first have a current diagnosis of the claimed disability.  Service connection cannot be granted if there is no present disability. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Veteran asserts that he got prostate cancer as a result of his exposure to herbicides while serving in the Republic of Vietnam.  The Veteran stated in his September 2013 notice of disagreement that he spent time in the hospital in 2006 due to prostate gallstones.  However, in this case, the Veteran does not have a current diagnosis of prostate cancer.  While the Board has considered the Veteran's lay assertions, they do not outweigh the medical evidence of record, which shows that there is no present diagnosis of prostate cancer.  The Veteran's medical records are replete with treatment for rectal cancer, but the Veteran's medical records are negative for any diagnosis of prostate cancer and no examiner has diagnosed him with such.  The most persuasive and competent evidence of record does not support the Veteran's claim of entitlement to service connection for prostate cancer because the evidence does not show that the Veteran has, or has had during the pendency of this appeal, prostate cancer.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993).   Therefore, service connection for prostate cancer is denied.  

The Board has considered the applicability of the benefit of the doubt doctrine.  Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply.  See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990).


ORDER

Service connection for prostate cancer is denied.




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs