Citation Nr: 18145306 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 17-34 348 DATE: October 26, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for prostate cancer is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. A March 2006 rating decision denied entitlement to service connection for prostate cancer; the Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of notification and the decision is final. 2. Some of the evidence received since the March 2006 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for prostate cancer. 3. The Veteran’s prostate cancer was not shown in service or within the year following service, and is not shown to be causally related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for entitlement to service connection for prostate cancer have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The requirements for establishing service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1984 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer Service connection for prostate cancer was denied in a March 2006 rating decision on the basis that the Veteran had not been diagnosed with prostate cancer. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2018). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2018). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received since the March 2006 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2018). In this regard, private treatment records show a current diagnosis of prostate cancer. This new evidence addresses the reason for the previous denial; that is, the presence of a current prostate cancer disability. Accordingly, the claim is reopened and will be considered on the merits. 2. Entitlement to service connection for prostate cancer Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served for at least 90 days during active service, and manifests cancer to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that his diagnosed prostate cancer is related to service. As an initial matter, the Board notes the Veteran was diagnosed with prostate cancer in September 2015. Accordingly, the first criterion for establishing service connection, a current disability, has been met. However, although service treatment records note a nodule on the prostate during service, biopsy was negative and the records do not show the Veteran was diagnosed with prostate cancer during service. Nor was his prostate cancer shown within one year of his separation from active service. Accordingly, competent evidence linking his prostate cancer to service is needed to support the claim. However, the only medical opinion of record on this question is against the claim. In this regard, the Veteran underwent a VA examination in June 2017. Following examination of the Veteran and review of the claims file, the examiner opined that the Veteran’s prostate cancer was less likely as not incurred in or caused by service, to include a prostate nodule first found during service in February 2001. The examiner noted that the Veteran’s PSA had been stable over the two years prior, and that a biopsy in May 2004 continued to be negative for cancer. She concluded that the Veteran’s prostate cancer first developed in or around 2014 when the Veteran’s PSAs started significantly rising. In this regard, she noted private treatment records which document a visit in October 2015 when the Veteran was diagnosed with prostate cancer, which noted elevated PSAs over the prior two years. She noted that the Veteran has suffered from symptoms attributable to benign prostate hyperplasia (BPH) since service, but that the prostate cancer did not develop until 10 after the Veteran’s discharge from active duty; and, that BPH is not a pre-cursor to cancer. While the Veteran believes that his prostate cancer is related to service, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of prostate cancer is not capable of lay observation, and requires medical expertise to determine. Thus, his opinion as to the diagnosis or etiology of this condition is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. There is no medical opinion to the contrary. In summary, prostate cancer was not shown in service or for years thereafter, and the most probative evidence indicates the Veteran’s current prostate cancer is not related to service. Accordingly, the claim for service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis