Citation Nr: 1802905 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-13 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a prostate disorder, to include hematuria, hematospermia, and benign prostate hypertrophy (BPH), to include as due to herbicide agent exposure. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from March 1968 to March 1971, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In August 2016, the Board remanded the Veteran's claim for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDING OF FACT A prostate disorder was not shown in service or within a year of service discharge; and the weight of the evidence fails to establish that the Veteran's diagnosed hematuria, hematospermia, or BPH is etiologically related to his active service or was the result of his presumed herbicide exposure therein. CONCLUSION OF LAW The criteria for service connection for a prostate disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined. The Veteran was also provided VA examinations, and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. If a Veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain enumerated diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). Of note, any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in § 3.309(e). 38 C.F.R. § 3.307(a)(1). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran's military service record shows he had service in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicides during his time in service. The Veteran filed a service connection claim for a prostate disorder in February 2011, which was denied by a June 2013 rating decision. The Veteran believes that his prostate disorder is due to his presumed herbicide exposure. Hematuria, hematospermia, and BPH are not among the list of diseases that are presumed related to herbicide exposure under 38 C.F.R. § 3.309(e). While prostate cancer is presumed related to herbicide exposure, the Veteran has not been diagnosed with prostate cancer. As such, service connection based on herbicide exposure is not warranted. As an initial point, it is unclear that hematuria, hematospermia, or BPH should be considered a chronic disability. However, to the extent they are, there is no objective evidence of record that links the Veteran's hematuria, hematospermia, or BPH to his active service. STRs do not show a diagnosis of hematospermia or BPH rendered by a medical officer during the Veteran's service. In February 1970, he complained of blood in his urine, but at his separation examination in February 1971, he had normal findings with no chronic prostate disorder noted. The record shows that the Veteran was not diagnosed with hematospermia until January 2011 and BPH until May 2012, which is 40 years after his separation from service. While the Veteran was not diagnosed with hematuria, his physician noted blood in his urine in January 2011. Furthermore, hematuria, hematospermia, and BPH are not considered chronic diseases under 38 C.F.R. § 3.309. As such, the record contains no diagnosis of hematuria, hematospermia, or BPH in service, and these disorders are not considered chronic diseases, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. The Veteran has not argued to the contrary. There is also no medical evidence linking the Veteran's current hematuria, hematospermia, or BPH to his active service, and he has not submitted any medical opinion that even suggests a relationship between his hematuria, hematospermia, or BPH and his military service. See Shedden, 381 F.3d 1163, 1167. In May 2013, a VA examiner reviewed the Veteran's claims file. The examiner reported that hematospermia was not related to blood in his urine during service. The examiner reported that his blood in his urine was due to gonorrhea, which was treated with penicillin. In October 2015, the Veteran was afforded a VA examination. The VA examiner reviewed the Veteran's claims file, interviewed the Veteran, and conducted a physical examination. The examiner opined that the Veteran's prostate disorder was less likely than not caused by or related to his active service. The examiner explained that the Veteran developed BPH four decades after his active service and that herbicide agent exposure was not a risk factor for developing BPH. The examiner also opined that the Veteran's current hematuria and hematospermia were complications of BPH. The examiner also reported that the Veteran's hematuria was treated and resolved during his active service. After weighing all the evidence, the Board finds great probative value in the VA examiners' opinions. These negative opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran's personal assertion that his prostate disorder is due to herbicide exposure. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of a prostate disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A prostate disorder is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include digital rectal examinations, urinalysis, or prostate-specific antigen test are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of a prostate disorder, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to whether a prostate disorder is caused by herbicide exposure. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating urologic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the Veteran's assertions do not constitute competent medical evidence. As such, the criteria for service connection for a prostate disorder have not been met, and the Veteran's claim is denied. ORDER Service connection for a prostate disorder is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs