Citation Nr: 1803868	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-07 554	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for prostate cancer, to include as due to in-service radiation exposure. 

2.  Entitlement to an increased evaluation, in excess of 20 percent, for calcific tendinitis with capsulitis and degenerative joint disease of the left shoulder. 


REPRESENTATION

Veteran represented by:	Ronald Sykstus, Esq. 


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel


INTRODUCTION

The Veteran served as a member of the United States Army, with active duty service from April 1970 through December 1971, and from October 1976 through September 1994. 

This appeal comes to the Board of Veterans' Appeals ("Board") from rating decisions, dated October 2010 and August 2011, issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Pittsburg, Pennsylvania and Jackson, Mississippi respectively.  Jurisdiction of the claims presently resides with the RO in Winston-Salem, North Carolina (hereinafter Agency of Original Jurisdiction ("AOJ")).

The Veteran testified at an August 2017 Board videoconference hearing, held before the undersigned Veterans Law Judge.  A transcript of this hearing has been reviewed and associated with the Veteran's claims file.

This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS").  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  

The issue of entitlement to an increased evaluation, in excess of 20 percent, for calcific tendinitis with capsulitis and degenerative joint disease of the left shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.




FINDING OF FACT

Prostate cancer was not clinically evidence during the Veteran's active duty service or for many years thereafter, and the most probative evidence indicates that his post-service diagnosis for prostate cancer is not causally related to his active service or any incident therein, including exposure to ionizing radiation.


CONCLUSION OF LAW

The criteria for a grant of entitlement to service connection for prostate cancer, to include as due to in-service radiation exposure, have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).

In regards to the Veteran's claim for entitlement to service connection, the Board notes that the VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain on his behalf, in correspondence dated June 2009 and May 2011.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claim.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Additional notice of the five elements of a service-connection claim was provided in the June 2009 VCAA notice, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.

In regards to the special developmental procedures outlined in 38 C.F.R. § 3.311, for radiation climes, the Board finds the VA has fully complied.  The claims file contains a July 2011 letter from the Army Dosimetry Center as to the amount of radiation the Veteran was exposed to during his active duty service.  The claims file additionally contains medical opinions from the Under Secretary for Benefits and the Under Secretary for Health as to probability the Veteran's prostate cancer was etiologically related to his in-service ionizing radiation exposure. Therefore, 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).

The Board finds that a VA opinion is not otherwise necessary to address the appeal for service connection for prostate cancer. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  Here, the Board finds that the radiation dose estimate and opinion with regard to etiology provided by the Director, Environmental Agents Service adequately address the claim for service connection prostate cancer based on exposure to ionizing radiation. 

The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at an August 2017 videoconference hearing.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the August 2017 hearing, the VLJ noted the basis of the prior determination and explained the elements of the claims that were lacking to substantiate the Veteran's claims for benefits.  The VLJ specifically noted the issues on appeal.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.  Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez 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).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

General Laws and Regulations Governing Entitlement to Service Connection:

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.  "Service connection" basically means that the facts, shown by evidence, 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 C.F.R. § 3.303.

Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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 granted for any disease 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).

Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015).  

The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value.  In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).

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 issue shall be given to the claimant.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For a claim to be denied on the merits, a preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In the instant appeal, the Veteran is seeking entitlement to service connection for prostate cancer.  In statements to the Board, the Veteran has advanced two theories of entitlement: (1) that his prostate cancer was caused by his exposure to ionizing radiation while in service and/or (2) that he experienced symptoms of a prostate disability in service which remained continuous, follow his separation of service, until his diagnosis for prostate cancer.  

Service connection for a disease based on radiation exposure may be established in one of three different ways, which have been outlined by the Court.  See Combee v. Brown, 24 F. 3d. 1039 (Fed. Cir. 1994).  See also Ramsey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub. nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir 1997); Hardin v. Brown, 11 Vet. App. 74, 77 (1998).  First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases.  Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if certain conditions are met.  Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during, or aggravated by, service without regard to the statutory presumptions.  See Combee, 34 F.3d 1039, at 1043-44.  

In the first instance, VA regulations provide that certain diseases maybe presumptively service connected if manifest in a ration-exposed veteran.  See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d).  A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, participated in a radiation-risk activity.  There are a number of activities defined as "radiation-risk activity" including, but not limited to, the onsite participation in a test involving the atmospheric detonation of a nuclear device.  38 C.F.R. § 3.309(d)(3).  The Veteran has not alleged, and the evidence does not demonstrate, that he participated in a radiation-risk activity.  The Veteran rather contends that his exposure to ionizing radiation occurred during the performance of his in-service occupation, specifically while administering dental x-rays.  See e.g.  June 2011 Radiation Risk Activity Worksheet.  Moreover, prostate cancer is not an enumerated disease listed in 38 C.F.R. § 3.309(d)(2) subject to presumptive service connection in radiation-exposed veterans.  Thus, service connection on a presumptive basis is not warranted.  

Therefore, the Board will turn to the applicability 38 C.F.R. § 3.311, the second avenue of establishing service connection for a disease based on radiation exposure.  To consider a claim under this regulation, the evidence must show the following: (1) that the veteran was exposed to ionizing radiation in service; (2) that he subsequently developed a radiogenic disease; and (3) that such disease first became manifest within a period specified by the regulation.  38 C.F.R. § 3.311(b).  If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311.  See 38 C.F.R. § 3.311(b)(1)(iii).  For the purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by radiation, including cancers.  38 C.F.R. § 3.311(b)(2).  

The Board notes the Veteran's prostate cancer is an enumerated radiogenic disease.  38 C.F.R. § 3.311(b)(2)(xxiii).  The Veteran was first diagnosed with prostate cancer in May 2008.  See Records from the Therapeutic Radiation Clinic, Wilford Hall Medical Clinic (WHMC").  As the Veteran separated from military service in 1994, this initial diagnosis occurred "5 years or more" after his in-service exposure to ionizing radiation, thus triggering the special procedures under 38 C.F.R. § 3.311(b)(1).

In this regard, the Board observes that the Veteran has reported exposure to radiation, through his in-service occupation as a U.S. Army Dental Specialist, from 1970 through 1986, minus the intervening years of 1972 through 1976, where he was not on active duty service, and a second two assignment to a non-dental occupation.  See e.g. June 2011 Statement in Support of Claim.  At the time of his initial exposure, the Veteran was 22 years old.  

Based on this information, the AOJ requested the Army Dosimetry Center ("ADC") provide an estimate of the total radiation dosage the Veteran sustained during his military service.  In a July 2011 letter, the ADC provided a letter containing reports of radiation exposure from November 22, 1970 through August 26, 1978, while the Veteran was working as a dental technician.  Based upon this date, the ADC determined that the Veteran was exposed to no more than the following radiation doses, reported in units of Röntgen equivalent in man (or mammal) (rem):

      Maximum Total Effective Dose Equivalent ("TEDE") of 000.065 rem
      Total accumulated dose of gamma and x-ray radiation: 01.567 rem

After receipt of the above reported dosage estimates, the AOJ referred the case to the Under Secretary for Health in order to obtain an opinion as to whether the Veteran's current prostate cancer was etiologically related to his in-service radiation exposure.  In a July 2011 medical opinion, the Director, Environmental Agents Service, found it was unlikely the Veteran's prostate cancer was the result of his in-service radiation exposure.  

The opining physician explained the Health Physics Society, in their August 2004 position Statement PS010-1, Radiation Risk in Perspective, states that in accordance with current knowledge of radiation health risks, the Health Physics Society, recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a life time dose of 10 rem above that received from natural sources.  The physician further explained, that the Health Physics Society, in the above referenced position statement, found that there is substantial and convincing scientific evidence of health risks following high-dose exposure to radiation; however, below 5-10 rems (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are non-existent.  The opining physician concluded that it was "unlikely" that the Veteran's prostate cancer could be attributed to his exposure to radiation during his military service. 

Following this issuance of the July 2011 medical opinion, the Director of Compensation Service issued an advisory opinion.  Based upon the report from the Director, Environmental Agents Service, and his own independent review of the claims file, the Director of Compensation Service determined that "there is no reasonable possibility that the Veteran's prostate cancer resulted from radiation exposure in service."  The Director noted this opinion was based upon a review of the entirety of the claims file.  

The Board finds that the July 2011 medical opinion is entitled to significant weight.  Specifically, the Board finds that the opining physician provided a clear rationale for his opinion, and included citations to relevant medical literature.  The crux of the July 2011 medical opinion finds that radiation exposure, of the dosage the Veteran was exposed to, have not been found to have any quantifiable effect on an individual's health.  To conclude otherwise would be speculative.  See Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (Board may not award benefits when the award would be based upon pure speculation).  As such, the Board gives the July 2011 medical opinion significant weight. 

The Board has additionally considered the various reports of medical literature submitted by the Veteran in support of his claim for entitlement to service connection.  See e.g. June 2011 Correspondence.  However, the Board finds that this evidence does not provide probative evidence of an etiological link between the Veteran's in-service exposure and his current diagnosis for prostate cancer.  Rather, generic information from a medical journal, treatise, or website is too "general and inconclusive" to establish a medical nexus to a disease or injury, and without application to the specific facts of the Veteran's case does little to support his claim.  See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (finding that generic medical literature, which does not apply medical principles to the facts of an individual case, does not provide competent evidence).

Based upon a review of the evidentiary record, the Board finds that entitlement to service connection for prostate cancer is not warranted under 38 C.F.R. § 3.311.  Specifically, the Board finds that the objective medical evidence is against the claim for service connection of prostate cancer due to exposure to ionizing radiation. 

Therefore, the only remaining avenue through which the Veteran may establish service connection is by showing that the disease was incurred during, or was aggravated by, service without regard to the statutory presumptions (i.e. on a direct basis).  38 C.F.R. § 3.303; See also Combee, 34 F.3d 1039, at 1043-44.  Under this approach, service connection may be granted for any disease 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).  That is to say, some diseases are chronic, per se, such as malignant tumors of the type the Veteran was diagnosed with, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service.  Even this presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Additionally, VA regulations allow for a disability to be service connected if the evidence of record reveals the Veteran has a diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above.  Savage, 10 Vet. App. at 495-496.  

Applied to the Veteran's appeal, and as noted above, the evidence demonstrates that the Veteran was first diagnosed with prostate cancer in May 2008.  See e.g. Records from the Therapeutic Radiation Clinic, WHMC.  As the Veteran retired from military service in September 1994, this initial diagnosis was made approximately 14 years following his separation from active duty service.  Thus, as the Veteran's diagnosis occurred outside of one year following his separation from military service, he is not entitled to an award of presumptive service connection.  38 U.S.C. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309.  

The Board is aware that the Veteran's service medical records contain instances of treatment for a "nodule" along the right side of the Veteran's prostate.  For example, during a physical examination in February 1988, the Veteran was reported to have a right sided "extra prostatic" nodule, which was additionally described as a "phlebolith."  See Dorland's Illustrated Medical Dictionary 1433 (32nd ed. 2012) (defining a "phlebolith" as a calcification within a vein).  Even considering this in-service notation of a right-sided mass, the Board does not find any credible evidence demonstrating a etiological link to his subsequent diagnosis for prostate cancer.  

The Board notes the Veteran was evaluated by an oncologist following his May 2008 diagnosis for prostate cancer.  After reviewing the Veteran's medical records, and with consideration of the Veteran's lay reports of an in-service occurrence of a right-sided mass, the oncologist concluded there was no relationship between the nodule and the Veteran's subsequent diagnosis for cancer.  See Records from the Therapeutic Radiation Clinic, WHMC, dated May 28, 2008.  In support of this conclusion, the examining oncologist observed that the right-sided mass had been "present and unchanged for several years."  During a physical examination of the Veteran, the oncologist observed that there was a "small subcentimeter nodule on the right side of the prostate gland," which corresponded to earlier physical examinations of the Veteran (i.e. no change in size or shape).  The oncologist additionally observed that the prostate itself had no induration or nodules. 

The Board finds this May 2008 medical opinion is both probative and entitled to significant weight.  Namely, this opinion was made after a physical evaluation of the Veteran, and with consideration of his lay reports of symptoms and medical history.  The opinion provided is clear and supported by citations to the Veteran's medical history.  As such, the Board finds this opinion is entitled to significant weight. 

The Board additionally finds that the Veteran did not report any discernable symptoms of a prostate disability from the time of his discharge until his May 2008 diagnosis.  Rather, a review of the Veteran's Tri-Care records shows he denied any symptoms of pain, or other manifestations, with regards to the right-sided nodule.  The Federal Circuit Court has held that such a lengthy lapse of time between the alleged events in service and the initial manifestation of relevant symptoms after service is a factor for consideration in deciding a service-connection claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Specifically, the Board finds the lack of diagnosis and treatment for prostate cancer or malignant tumors, establishes the Veteran did not experience continuous symptoms following his separation from active duty service.  As such, it follows that there is no basis to award service connection for this disorder based on chronicity in service or continuous symptoms thereafter.  38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-97.  
 
The Board acknowledges that it must fully consider the lay assertions of record.  As a lay person, the Veteran is competent to report what comes to his through his senses, and these observations "may provide sufficient support for a claim of service connection."  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

In this regard, the Board finds that the question of etiology of the Veteran's prostate cancer is a complex question for which the Veteran lacks medical training and expertise.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  While the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his prostate cancer and its relationship to radiation exposure during his military service. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion regarding radiological or medical issues regarding the etiology of his prostate cancer.  See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  Therefore, the Board has reviewed all the medical evidence of record, but finds no probative evidence establishes a causal link between the Veteran's military service and his subsequent diagnosis for prostate cancer. 

Based upon all the foregoing, there is simply no persuasive and competent medical evidence which relates the Veteran's prostate cancer to his military service and/or exposure to ionizing radiation.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection, on either a direct or presumptive basis.  As the evidence is against the Veteran's claim, there is no reasonable doubt to resolve in his favor.  Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for prostate cancer, to include as due to in-service radiation exposure, is denied. 


REMAND

While the Board regrets further delay, the Veteran's claim must be remanded as additional development is required. 

As to the Veteran's claim for entitlement to an increased evaluation, in excess of 20 percent, for his calcific tendinitis with capsulitis and degenerative joint disease, the Board finds the AOJ has not satisfied its duty to assist the Veteran in obtaining outstanding medical records.  Notably, in a February 2014 deferred rating statement, the AOJ identified outstanding private medical records which had yet to be associated with the Veteran's claims folder.  "Sportsmed Orthopedic Surgery and Spine Center" was identified by the AOJ as a private medical provider which had outstanding medical records pertinent to the Veteran's claim.  

The AOJ made an initial request to obtain these relevant medical records in February 2014.  However, in a February 24, 2014 letter, Sportsmed replied to the AOJ's request for records with a statement explaining that the provided medical release was no longer valid.  Continuing, Sportsmed informed the AOJ that it needed the Veteran to fill out a new authorization form, enclosed in its response, before any medical records could be released.  Despite these instructions, there is no evidence the AOJ made any follow-up efforts to have the Veteran fill out the provided medical release and no effort which suggests the AOJ informed the Veteran that these medical records had not been obtained on his behalf.  Therefore, the AOJ must seek to obtain these medical records. 

Second, the Board finds that a remand is required in order to afford the Veteran an updated VA examination to assess the current severity of his left shoulder disability.  During his August 2017 hearing, the Veteran testified that his shoulder disability has worsened over the last several years.  The Veteran was last provided with an orthopedic examination in December 2009.  

When a Veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).  Therefore, on remand, the Veteran should be provided with an updated VA orthopedic examination of his left shoulder. 

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should contact the Veteran and request that he complete an updated medical release form, as specified by Sportsmed's February 24, 2014 correspondence.  Once completed, the AOJ should seek to obtain the outstanding medical records from Sportsmed.  

If the AOJ's attempts to obtain any outstanding records results in a finding that such records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).

2.  The AOJ should then obtain any outstanding medical records from VA treatment facilities identified by the veteran.  Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c).

3.  After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a new VA orthopedic examination, to assess the current severity of his left shoulder disability.  The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination.  All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail.  

4.   After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

5.  Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim on appeal.  If the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond.

The appellant 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 (West 2012).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs