Citation Nr: 18148595 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-06 263 DATE: November 7, 2018 ORDER 1. Entitlement to service connection for prostate cancer is denied. REMANDED 1. Entitlement to service connection for a prostate disability to include benign prostatic hypertrophy (BPH). 2. Entitlement to service connection for chloracne, or another acneform disease, is remanded. 3. Entitlement to service connection for squamous and basal cell skin cancer is remanded. 4. Entitlement to service connection for a kidney disorder is remanded. FINDINGS OF FACT The weight of the evidence does not establish that the Veteran has prostate cancer. CONCLUSIONS OF LAW 1. There is no longer an issue of fact or law before the Board pertaining to whether service connection is warranted for the Veteran’s anxiety with panic attacks. 38 U.S.C. § 511, 7104. 7105 (West 2014); 38 C.F.R. § 20.101(2017). 2. The criteria for entitlement to service connection for prostate cancer have not been satisfied. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from June 1966 to June 1970. The Veteran’s certificate of release from active duty (DD214) reveals that the Veteran received the Vietnam Service Medal and a Vietnam Campaign Medal. The present appeal arises from a March 2014 rating decision. In addition to the issues listed above, the Veteran also appealed the denial of for service connection for an acquired psychiatric disorder to include anxiety with panic attacks. In August 2017, prior to the promulgation of a decision in the appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for posttraumatic stress disorder, assigning a 50 percent rating. The Veteran’s anxiety and panic attacks were considered by the AOJ in the assignment of the initial disability evaluation. The record does not show that the Veteran filed a notice of disagreement with either the effective date or the initially disability evaluation assigned. This action represents a full grant of the benefits sought with respect to the claim for service connection for an acquired psychiatric disorder. Accordingly, this issue is not before the Board. Service Connection In general, a service connection claim may be granted for a disability resulting from a disease or injury incurred in, or aggravated by, active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as skin cancer and kidney disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for prostate cancer is denied. In July 2013, the Veteran submitted his VA Form 21-526. Therein, the Veteran initiated his claim for service connection for prostate cancer. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). A Veteran who, during active service, served in the Republic of 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). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction); atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 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 appellant 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). On September 15, 2000, Dr. NES added to the Veteran’s treatment records at the Riverside Medical Clinic. Therein, Dr. NES observed, “mild diverticulosis was present in the sigmoid colon. There were no fixed polypoid defects or annular constricting lesions. The terminal ileum was normal.” The impression noted by Dr. NES was mild sigmoid diverticulosis. On August 8, 2001, Dr. WHR noted that, “the prostate on exam today is 2+, soft, nontender, benign. Rectal exam revealed no rectal masses . . ..” At that time Dr. WHR assessed benign prostatic hypertrophy. In October 2009, a treatment notation was generated at the Riverside Medical Clinic. At that time, Dr. SL noted that the Veteran had a polyp during a colonoscopy in 2006. Important to this Board analysis, Dr. SL noted that the Veteran’s 2009 colonoscopy was normal. Moreover, Dr.SL observed no abdominal masses, normal bowel sounds, and a normal prostate. In October 2011, additional treatment records from the Riverside Medical Clinic were associated with the claims file. Therein, the Veteran was diagnosed with benign prostatic hyperplasia (BPH) during a visit for urinary retention. In September 2013, a treatment notation from the Jerry L Pettis VA medical clinic (VAMC) was associated with Veteran’s claims file. Therein, Dr. BS noted that, “(p)atient underwent colonoscopy for follow up of colon polyps/cancer and needs another colonoscopy in 5 years.” During the history portion, the Veteran self-reported a polyp during a colonoscopy in 2008. In November 2013, VA received a statement from the Veteran’s spouse, CLM. Therein, CLM reported that the Veteran had “prostate problems.” But, even though CLM discussed basal and squamous cell skin cancer, she did not expand upon the Veteran’s “prostate problems.” On November 6, 2014, the Veteran’s treatment records notations at the Loma Linda HCS were expanded upon. Therein, the Veteran denied a history of prostate cancer. At that time, the Veteran reported that, “I’ve had an enlarged prostate and I take medication for it.” As identified above, the primary requisite element to any service connection entitlement claim is the presence of a current disability. Holton, 557 F.3d at 1366. After prolonged and deliberate review of the Veteran’s claims file, the Board finds that evidence does not reflect that the Veteran currently endures prostate cancer. The Board acknowledges that the Veteran reported a polyp during a colonoscopy in 2008. However, the reported polyp did not result in a diagnosis for prostate cancer. The Board also acknowledges numerous notations about BPH within the Veteran’s claims file. However, BPH is not prostate cancer and, therefore, the first requisite element of a service connection claim is absent. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s entitlement claim for prostate cancer. Since the preponderance of the evidence is against this service-connection claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for prostate cancer must be denied, because the preponderance of the evidence weighs against his claim. Should the Veteran develop prostate cancer in the future, he is encouraged to file a claim to reopen his claim. The Board notes that the issue certified on appeal was that of entitlement to service connection for prostate cancer. While the evidence does not show that he has prostate cancer, the Veteran has continually reported prostate related symptoms and has been diagnosed with BPH. The Veteran being a layman, not trained in medicine and not competent to determine exactly what type of prostate disorder he has, the Board considers all diagnosed prostate disabilities found subjects of the Veteran’s original prostate claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board will remand the issue of entitlement to service connection for a prostate disability, other than prostate cancer, to include benign prostatic hypertrophy (BPH). REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. 1. Entitlement to service connection for chloracne, another acneform disease, and/or squamous and basal cell skin cancer is remanded. In July 2013, the Veteran submitted his VA Form 21-526. Therein, the Veteran initiated his entitlement claim for chloracne (identified as basal and squamous cell skin cancer). As identified above, exposure to herbicide agents in the Republic of Vietnam, creates a presumption for chloracne or other acneform disease consistent with chloracne. In short, chloracne or another acneform disease consistent with chloracne shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). In September 2006, the Veteran underwent a procedure at Dermatopathology Medical Associates, Inc. In the resultant report, Dr. SY diagnosed “compound nevus with associated architectural disorder and severe cytologic atypia.” Within the microscopic description, Dr. SY observed, “the lesion submitted contains skin with a pigmented cellular tumor with junctional and intradermal elements.” Important to this Board analysis, Dr. SY did not consider chloracne, nor did she provide an etiology for the Veteran’s diagnosed skin condition. In March 2014, the Veteran’s treatment records from the Riverside Medical Clinic were associated with the claims file. Therein, in June 1998, a notation was created for basal cell carcinoma of the left shoulder. In July 1990, another notation was generated for basal cell carcinoma of the left forearm. In September 1990, a basal cell carcinoma of the left lower chest was identified. In December 2010, Dr. JQ noted a “history of skin cancer.” After careful and deliberate consideration of all of the Veteran’s treatment records at the Riverside Medical Clinic, the Board notes that chloracne or another acneform disease were not considered. Moreover, the Board notes that all of the Veteran’s treatment records, government and private, fail to consider the etiology of the Veteran’s skin cancer. On January 18, 2017, the Veteran underwent an agent orange registry health examination at the Jerry L Pettis VA medical center (VAMC). At that time, the VA provider did not detect the presence of chloracne. A remand is needed for a medical opinion as to whether the Veteran’s claimed skin cancer is related to herbicide agent exposure during service. See 38 C.F.R. § 3.159 (c); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not asserted that he developed skin cancer during service. Rather, he asserts that he developed skin cancer after service and that the claimed disability is due to his herbicide exposure during service. As noted above, the Veteran received the Vietnam Service Medal and a Vietnam Campaign Medal for his service in the United States Marine Corps. Skin cancer is not one of the diseases presumed to be associated with herbicide agent exposure. See 38 C.F.R. § 3.309 (e). Notwithstanding the foregoing, a claimant may still establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Because there is no medical evidence addressing a nexus between the Veteran’s claimed skin cancer and herbicide agent exposure, the Board finds that a medical opinion is necessary before making a determination on the Veteran’s claim(s). 2. Entitlement to service connection for a prostate disability, other than prostate cancer, to include benign prostatic hypertrophy. A remand is needed for a medical opinion as to whether the Veteran’s claimed prostate disability is related to herbicide agent exposure during service. See 38 C.F.R. § 3.159 (c); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not asserted that he developed a prostate disability cancer during service. Rather, he asserts that he developed a prostate disability after service and that the claimed disability is due to his herbicide exposure during service. As noted above, the Veteran received the Vietnam Service Medal and a Vietnam Campaign Medal for his service in the United States Marine Corps. While prostate cancer is one of the diseases presumed to be associated with herbicide agent exposure; BPH is not. See 38 C.F.R. § 3.309 (e). Notwithstanding the foregoing, a claimant may still establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Because there is no medical evidence addressing a nexus between the Veteran’s claimed BPH and herbicide agent exposure, the Board finds that a medical opinion is necessary before making a determination on the Veteran’s claim(s). 3. Entitlement to service connection for a kidney condition is remanded. In July 2013, the Veteran submitted his VA Form 21-526. Therein, the Veteran initiated his entitlement claim for kidney problems. In January 2017, the Veteran underwent a VA examination to consider the nature of any currently endured kidney conditions. In the resultant report, Dr. TPF identified a diagnosis for chronic kidney disease. Within the evidence review, Dr. TPF noted that the Veteran was diagnosed with “chronic kidney disease stage 3” at the Riverside Medical Clinic in May 2011. At that time, Dr. TPF did not observe and/or report any signs or symptoms due to renal dysfunction. Within his remarks, Dr. TPF reported “high creatine, cholesterol, triglycerides on CMP, high HgA1c, claimant should follow up with his primary care provider regarding this finding.” In January 2017, in a separate examination report, Dr. TPF considered whether the Veteran’s current kidney condition was secondary to diabetes mellitus, Type II. Therein, Dr. TPF determined the Veteran’s chronic kidney condition was not secondary to diabetes, because the Veteran was pre-diabetic. Ultimately, Dr. TPF surmised that the diagnostic criteria set forth by the VA, regarding diabetes, were not satisfied by the laboratory test results. Important to the Veteran’s entitlement claim for service connection for a kidney condition and, therefore, this Board analysis is the absence of consideration of and/or discussion about the etiology of the Veteran’s identified chronic kidney condition in either report provided by Dr. TPF. Because Dr. TPF did not consider the Veteran’s presumed exposure to herbicide agents in the Republic of Vietnam as a causal factor for his current chronic kidney condition, the Board concludes that both opinions provided are inadequate. The AOJ must endeavor to obtain a medical opinion that considers the Veteran’s exposure to herbicide agents as a direct causal factor. Therefore, these claims are REMANDED to the AOJ for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current skin disability, to include skin cancer or residuals thereof. The claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. It is noted that the Veteran’s is presumed to have been exposed herbicide agents during his service in the Republic of Vietnam. The examiner should: a. Identify any current skin disorder, to include skin cancer, and/or the residuals thereof. b. For any skin disorders identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to his military service, including herbicide agent exposure therein. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current prostate disability, to include benign prostatic hypertrophy (BPH). The claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. It is noted that the Veteran’s is presumed to have been exposed herbicide agents during his service in the Republic of Vietnam. The examiner should: a. Identify any current prostate disorder, to include BPH, and/or the residuals thereof. b. For any skin disorders identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to his military service, including herbicide agent exposure therein. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current kidney disorder. The claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. It is noted that the Veteran’s is presumed to have been exposed herbicide agents during his service in the Republic of Vietnam. The examiner should: a. Identify any current kidney disorder. b. For any kidney disorder identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to his military service, including herbicide agent exposure. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel