Citation Nr: 1756694	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  15-00 322A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for prostate cancer.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. B., Counsel


INTRODUCTION

The Veteran served on active duty from June 1957 to February 1959.    

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  

The claim was remanded by the Board in November 2015 and has been returned for further appellate adjudication.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).


FINDING OF FACT

Prostate cancer, first demonstrated many decades post-service, is not etiologically related to military service, to include his service/exposure to contaminated drinking water at Camp Lejeune.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

VA Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017).  Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board.  Indeed, the Veteran received VCAA notice in April 2012, prior to the initial adjudication of the issue on appeal.  Therefore, additional notice is not required, and any defect in notice is not prejudicial.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records.  The Veteran has not identified any outstanding and available medical treatment records.  

In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the service treatment records as well as the medical records contained in the Veteran's claims file.  The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

The issue on appeal was previously before the Board in November 2015, when it was remanded for additional development.  In accordance with the remand instructions, the Veteran's service at Camp LeJeune was verified, a VA examination and opinion was obtained and associated with the claims file, and a supplemental statement of the case was issued.  Since the record reflects substantial compliance with the prior remand instructions, the Board may proceed with adjudication of the claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim.  See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017).  

Hence, no further notice or assistance 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).


Service Connection: Prostate Cancer

The Veteran contends he incurred prostate cancer due to exposure to contaminated drinking water at Camp Lejeune.  Unfortunately, the Board finds that service connection is not warranted.  

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

In order to prevail on the issue of service connection, there must be evidence of: a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the disease or injury in service and the present disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a).

Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminated drinking water at Camp Lejeune.  Under the new regulations, a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service.  38 C.F.R. § 3.307 (a)(7) (2017)(amended March 14, 2017).  

If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of 38 C.F.R. § 3.307 (a)(7), the following diseases will be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): 1) kidney cancer; 2) liver cancer; 3) Non-Hodgkin's lymphoma; 4) adult leukemia; 5) multiple myeloma; 6) Parkinson's disease; 7) aplastic anemia and other myelodysplastic syndromes; and 8) bladder cancer. 38 C.F.R. § 3.309 (f) (2017)(amended March 14, 2017).  The rule applies to all claims pending before the finalization of the rule on March 14, 2017, as here.

When there is an approximate balance of positive and negative 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. § 5107 (b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran's service personnel records show he served at Camp Lejeune from August 1957 to February 1959.  Accordingly, his exposure to contaminated drinking water therein is conceded.  

However, prostate cancer is not among the diseases for which presumptive service connection is granted based on such exposure.  Apart from the presumptive conditions noted above, service connection for any disability claimed to have resulted from contaminated water exposure at Camp Lejeune requires sufficient medical evidence to establish the required nexus.  While it is not in dispute that the Veteran has been diagnosed with prostate cancer and that he was exposed to contaminated drinking water during service, the record does not demonstrate that the two are etiologically related.  

The Veteran's service treatment records are silent for complaints, treatment, or diagnosis of a prostate disability.  

Private treatment records document that prostate cancer was first diagnosed and treated in 2006, more than 46 years post-discharge.  The Veteran filed the current claim for service connection in February 2012, which is the first indication in the record that his prostate cancer may have any connection to service.  

A September 2012 VA examiner concluded after reviewing the claims file, the Veteran's exposures during service, and what the examiner called authoritative literature from the Environmental Protection Agency and National Research Council, that his prostate cancer is not etiologically related to such exposures.  There is no other medical evidence as to the etiology of prostate cancer of record.  

While the Board acknowledges the Veteran's contentions that his prostate cancer is etiologically related to his exposures during military service, he is not competent to render such an opinion.  To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise, which he has not been shown to possess.  See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  

The Veteran has not submitted competent medical evidence that prostate cancer was incurred during or due to service, including the conceded exposures.  In fact, the only competent medical evidence of record is the opinion of the VA examiner, which is against the claim. 

Based on the foregoing, the Board finds that the evidence of record does not support a finding of a nexus between the Veteran's prostate cancer and service.  Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for prostate cancer, and it is, therefore, denied.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b).  However, as there is not an approximate balance of evidence, that rule is not applicable in this case.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).




ORDER

Service connection for prostate cancer is denied.  



____________________________________________
B. T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs