Citation Nr: 1751612	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  13-30 778	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for prostate cancer.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for bilateral hearing loss.

4. Entitlement to service connection for a right leg disorder.

5.  Entitlement to service connection for a back disorder.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs

ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1972 to July 1977, receiving a "general (under honorable conditions)" character of discharge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

As requested in his September 2013 substantive appeal, the Veteran was scheduled for a Travel Board hearing in March 2017.  See January 217 Hearing notification letter.  As he failed to report for this hearing without explanation, did not request that a new hearing be scheduled, and the notification letter was not returned to sender, the Board finds the hearing request to be withdrawn.

The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and back and right leg disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The evidence does not demonstrate that the Veteran had foreign military service, to include duty in the Republic of Vietnam, nor that he was exposed to any herbicidal agents, to include Agent Orange during service.

2.  The Veteran's prostate cancer did not manifest during service or within one year of separation and was not shown to be attributable to incident or event of his period of service, to include as result of alleged exposure to herbicide agents therein.

CONCLUSION OF LAW

The criteria for service connection for prostate cancer are not met.  38 U.S.C. §§ 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the interest of judicial efficiency, the foregoing is a concise summation of only the most salient facts and circumstances.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Regardless of any perceived missing evidentiary discussion, the Board stresses that the instant decision is the product of a thorough review of the Veteran's record.  See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying the exhaustion doctrine to uphold the Court's determination not to consider a duty to assist argument that the veteran had not raised before the Board).  

Duties to Notify and Assist

VA has a duty to provide specific notification and assistance to the Veteran under 38 C.F.R. § 3.159 (2017).  Neither the Veteran, nor his representative have raised any argument with the duties to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 

Regardless of the lack of any protestations from the Veteran or his representative, the Board acknowledges that the RO has "determined that the service medical records are incomplete and unavailable for review."  See June 2009 VA memorandum.  Despite this unfortunate development, the Board finds that the VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to adjudicate the claim for prostate cancer, including the available service treatment records, the Veteran's complete military personnel records, post service medical records and statements from the Veteran.  The record reflects that the RO has notified the Veteran about the missing STRs, but he did not respond with adequate information to warrant another search for STRs.  In this instance, the Board finds that further search efforts would be futile.  38 C.F.R. § 3.159(c)(2).  VA has fulfilled its duty to assist in locating the STRs.

When service records are missing, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease).

In light of the heightened obligation to explain as discussed above, the Board acknowledges that the Veteran was not afforded a VA examination for his prostate cancer.  The Board finds that the evidence of record does not necessitate such a development-even in light of the incomplete service treatment record.  See 38 C.F.R. § 3.159(c)(4).  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

In the present case, there is no competent evidence of record to indicate that the Veteran's prostate cancer may be related to service.  The Veteran himself has provided statements that the disorder is related to service.  However, the Board finds that the low threshold of McLendon is not met as the self-serving statements alone are not competent to provide evidence of a diagnosis or etiology of a condition such as prostate cancer.  Furthermore, the record is silent for a nexus between the Veteran's disorder and his active service.  The Veteran does not contend, nor does the evidence indicate that such a nexus exists in the missing STRs and the medical evidence of record reflects an onset of the disease in approximately 2008, over thirty years after service.  See Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion).  

The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims. No examinations or nexus opinions are required regarding the claims for service connection, as the weight of the evidence demonstrates no related injury, disease, or event during service.  Therefore, any opinions would be speculative.  For these reasons, a remand to provide the Veteran with medical examinations and/or obtain medical opinions is not required with respect to the claim for prostate cancer.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).

Service Connection

The Veteran is seeking entitlement to service connection for prostate cancer as incidental to his claimed exposure to herbicides in Vietnam.  See December 2009 VA Form 21-4138 ("Service connection for prostate cancer...I have been diagnosed and under treatment...this condition is a result of Agent Orange exposure while I was in Vietnam with the 2ND LAAMD BN USMC from 1972 - 1973.")  
Applicable Laws

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  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); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Service connection may also be granted through the application of statutory presumptions for chronic conditions, such as cancer.  See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1101(3) (2012).  First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service.  38 C.F.R. § 3.303(b).  In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service.  Likewise, continuity of symptoms of a chronic disease after service may serve to establish service connection.  38 U.S.C. §§ 1112(a)(1), 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2017).

Additionally, a veteran who, during active service, served in 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 unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii).  If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309(e) if the disability manifested to a degree of 10 percent or more at any time after service.  See 38 C.F.R. §§ 3.307(a)(6)(ii).

Facts & Analysis

Even in resolving the benefit of the doubt in the Veteran's favor, the most probative evidence of record fails to reflect that service connection is warranted on a presumptive or direct basis for prostate cancer.

As an initial matter, the Board finds that the first element under Shedden, the existence of a current disability, is met.  See i.e. September 2008 VAMC Hematology and Oncology note ("this patient has a pathology specimen that is consistent with malignancy.") 

Unfortunately, the Board finds that the second Shedden element has not been met.  The Veteran does not contend, nor do the available STRs reflect any complaints or diagnoses of any prostate or urological disorder, to include cancer.  

Regarding the third Shedden element, the Board finds that it too has not been met.  
The analysis turns to whether the Veteran's current diagnoses may somehow otherwise be related to his service.  In this vein, the Veteran alleges that his current cancer is presumptively related to active duty herbicide exposure.  

Prostate cancer is a presumptive condition, and the Board notes that the Veteran alleges active duty service in the Republic of Vietnam.  However, military personnel records do not reflect that the Veteran ever served outside the CONUS, mainly stationed in Arizona, let alone in the Republic of Vietnam.  See DD214 (No Foreign service).  Therefore, his report is unreliable and not credible in light of his DD214 and service department documentation.  Lastly, the contention that the Veteran had prostate cancer symptoms ever since discharge from service is neither alleged nor corroborated in the record, as demonstrated by the 2008 onset of the disease.  Thus, the presumption of service connection for prostate cancer does not attach as a diagnosis was not shown to have become manifest within one year of separation from service.  See 38 U.S.C. § 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. § 3.307, 3.309 (2017). 

The Veteran is competent to report that he has prostate cancer, and such statements are confirmed by the record.  In addition, he is competent to report the onset of symptoms.  However, his statements, linking his current disability to service in Vietnam is not credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed. Cir. 2007).  The weight of the evidence reflects that the Veteran's prostate cancer is unrelated to service.

More significantly, the Board reiterates that there is no evidence that the Veteran had service in Vietnam or was otherwise exposed to Agent Orange.  He has not established a factual foundation establishing exposure to Agent Orange and his assertion of exposure is not credible.  Therefore, exposure to Agent Orange on a presumptive basis is not shown.  He is not entitled to presumptive service connection in accordance with 38 U.S.C.A. § 1116.  

Further, though the Veteran has prostate cancer, the evidence does not serve to link the onset of the disease to the period of active service, to include exposure to herbicide agents therein.  The Board points out that the passage of so many years between discharge from active service in 1977 and the objective documentation of a claimed disability in 2008 is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  There is no credible evidence or opinion that even suggests that there is a medical relationship, or nexus, between the prostate cancer and the Veteran's active service, to include exposure to herbicide agents therein. 

As discussed above, the Veteran was not afforded a VA examination.  On the facts of this case, however, an examination is not required.  VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, however, this claim does not meet these requirements.  Because the weight of the evidence demonstrates no prostate injury or disease in service, and that symptoms of prostate cancer were not present in service or for many years thereafter, no examination is required.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for prostate cancer.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

ORDER

Entitlement to service connection for prostate cancer is denied.


REMAND

Regarding the remaining service connection claims for a back disorder, a right leg disorder, BLHL, and tinnitus, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  

The VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017).  

With regard to his lower back and right leg claims, the Board finds that a VA examination assessing whether the Veteran has a low back disorder that was caused by or incurred during his military service is warranted in this case.  In making this determination, the Board notes that the Veteran is currently diagnosed with degenerative changes of the lumbar spine and chronic back pain with intermittent radiation to the right lower extremity.  See September 2008 VAMC Primary care note.  As such, the Board finds that the first McLendon element has been satisfied for both disorders.

Regarding the second and third McLendon elements, the Board again notes that the Veteran's service treatment records are not available.  In his statements and testimony, the Veteran has indicated that his current orthopedic symptoms stem from in-service injuries.  See December 2009 VA Form 21-4138 ("right leg strain (injury) I was treated at MCAS Arizona in 1973-74...low back strain...please secure my medical service records").  In this regard, the Board notes that the Veteran is competent to report on orthopedic symptoms that have continued to the present day.  See Washington, 19 Vet. App. at 362; Layno, 6 Vet. App. at 465.  

The Veteran also seeks service connection for audiological disorders due to "combat noise exposure."  See December 2009 VA Form 21-4138.  The Veteran's DD 214 and service personnel records reflect probable exposure to acoustic trauma as the Veteran's military occupational specialty (MOS) was missile systems operator.  The Veteran was scheduled for a VA audiological examination in August 2013, and he failed to appear.  In his substantive appeal, he indicated that he never received notice of the scheduled examination.  The Board finds that the Veteran should be afforded an additional opportunity to appear for a VA examination.  

In light of the foregoing reasons, it is therefore necessary to remand this case for the purpose of obtaining examinations with corresponding medical opinions to assess the etiological relationship, if any, of the Veteran's active duty service and any existing, back, right leg, or audiological disorders.  See 38 C.F.R. § 3.159(c)(4) (2017).  

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate any outstanding medical treatment records, to include all pertinent VAMC records prior to 2006 and post-2013.

2.  Schedule the Veteran for an appropriate VA examination to determine the etiology of any spinal disorder, to include any associated neurological disorder of the lower extremities.  The claims file should be made available to the examiner for review.  

Specifically, the examiner is asked to provide an opinion that addresses the following question: is it at least as likely as not (a 50 percent or greater probability) that any lower back or right leg disorder found was caused by, or the result of active-duty service.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report.  The examiner should discuss the particular of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably explain the medical guidance in the study of this case.

3.  Schedule the Veteran for a VA orthopedic examination to determine the etiology of right leg disorder which is found.  The claims file should be made available to the examiner for review.  

Specifically, the examiner is asked to provide an opinion that addresses the following question: is it at least as likely as not (a 50 percent or greater probability) that any right leg disorder found was caused by, or the result of active-duty service.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report.  The examiner should discuss the particular of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably explain the medical guidance in the study of this case.

4.  Schedule the Veteran for a VA audiological examination to determine the etiology of any hearing loss or tinnitus, if found.  The claims file should be made available to the examiner for review.  

Specifically, the examiner is asked to provide an opinion that addresses the following question: is it at least as likely as not (a 50 percent or greater probability) that any hearing loss or tinnitus was caused by, or the result of active-duty service.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report.  The examiner should discuss the particular of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably explain the medical guidance in the study of this case.

5.  After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed.  Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims.  If the benefits remained denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond.  The case should be returned to the Board, if in order, for further review.

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 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. §§ 5109B, 7112 (2012).




______________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs