Citation Nr: 18159834 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-55 698 DATE: December 20, 2018 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for incontinence as prostate cancer residuals is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for an upper teeth disability is denied. Entitlement to service connection for a dental disability, status post mouth surgery, is denied. REMANDED Entitlement to service connection for a left fourth finger fracture is remanded. FINDINGS OF FACT 1. The competent and credible evidence does not demonstrate that the Veteran had prostate cancer during service, or that his currently diagnosed prostate cancer is otherwise etiologically related to service. 2. The competent and credible evidence does not demonstrate that the Veteran had incontinence during service, or that his currently diagnosed incontinence is otherwise etiologically related to service. 3. The competent and credible evidence does not demonstrate that the Veteran had erectile dysfunction during service, or that his currently diagnosed erectile dysfunction is otherwise etiologically related to service. 4. The Veteran does not currently have a dental disability or a dental condition, to include that of the upper teeth, due to trauma or an injury during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for incontinence as residuals of prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for an upper teeth disability, for compensation purposes, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.150. 5. The criteria for service connection for a dental disability, status post mouth surgery, for compensation purposes, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Armed Forces from December 1974 to December 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Service connection may be awarded for dental conditions for (1) compensation benefits and/or (2) outpatient dental treatment purposes. Pursuant to Veterans Benefits Administration (VBA) Fast Letter, 12-18 (July 10, 2012), claims for outpatient dental treatment submitted to VBA should be referred to the Veterans Health Administration (VHA) for preparation of a dental treatment rating. See also 38 C.F.R. § 3.381. In the present case, the RO noted in the March 2015 rating decision that claims for outpatient dental treatment were referred to VHA, as such, this matter is not currently before the Board. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes that additional evidence, to include VA treatment records, have been associated with the claims file since the October 2016 statement of the case. However, the Board finds that readjudication of the claims by the Agency of Original Jurisdiction (AOJ) is not warranted as the newly submitted evidence is cumulative. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service in the Armed Forces. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d) (2017). The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). This requirement is satisfied when a veteran has a disability at the time he or she files a claim for service connection or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at any time during the pendency of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). According to a Certificate of Military Service from the Chief of Staff of the Republic of Korea, the Veteran served in the Republic of Vietnam as part of the Republic of Korea Army. He contends that his military service with the Korean Army should be considered in deciding his service connection claims, particularly in finding that he was exposed to Agent Orange. However, as noted above, service connection may be granted for a disability incurred during service in the Armed Forces. 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.1(a), Armed Forces includes the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve Components. Thus, as a matter of law, service connection cannot be granted for a disability that is the result of service completed with another country’s military. As such, the Board will only consider the Veteran’s active service with the U.S. Army from December 1974 to December 1977 in deciding his service connection claims. 1. Entitlement to service connection for prostate cancer The Veteran asserts that he incurred his prostate cancer during service, specifically due to in-service exposure to Agent Orange in Vietnam. VA treatment records from December 2009 to March 2017 show that the Veteran has prostate cancer. In April 2011, he underwent a prostatectomy. Service treatment records show that the Veteran did not have a diagnosis of, treatment for, or complaints of prostate cancer, including December 1974 enlistment examination and August 1977 separation examination. Additionally, military personnel records show that the Veteran did not serve in Vietnam, but in Fort Jackson, Fort Sam, and Germany. The Board finds that the record does not show that the Veteran experienced an event or injury related to his prostate cancer during his active service with the U.S. Army Reserves. The Veteran’s service treatment records do not document such an incident or injury and the Veteran has not asserted or presented evidence of an in-service event or injury related to his prostate cancer. The Board acknowledges that the Veteran has submitted a medical opinion by D. Fatica, a VA nurse practitioner, who opined that the Veteran’s prostate cancer was more likely than not related to his military service. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008), the Court held that when evaluating the probative value of a medical opinion, the relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was “informed of the relevant facts” in rendering a medical opinion. Here, D. Fatica’s favorable opinion is premised on a finding that the Veteran served in Vietnam between November 1966 through November 1967. However, as discussed above, service connection cannot be granted for a disability that is the result of military service with another country’s military. In this regard, the Veteran’s time in Vietnam was not during a period when he served with the United States Armed Forces. Accordingly, it cannot be said that D. Fatica’s opinion was based on a relevant factual background and thus has no probative weight. Accordingly, as there is no competent and credible evidence of an in-service event or incurrence, or probative evidence relating prostate cancer to service the Board finds that entitlement to service connection for prostate cancer is not warranted. The Board has also considered the Veteran’s lay statements. Although he is competent to describe observable symptoms, he is not competent to opine as to the etiology of his prostate cancer, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran’s lay opinions that his prostate cancer is related to his active service does not constitute competent medical evidence and lacks probative value. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for prostate cancer. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for incontinence as prostate cancer residuals The Veteran asserts that he incurred his incontinence during service, specifically due to in-service exposure to Agent Orange in Vietnam, or that it is due to his prostate cancer. VA treatment records from October 2011 to March 2017 show that the Veteran has incontinence. Service treatment records show that the Veteran did not have a diagnosis of, treatment for, or complaints of incontinence, including December 1974 enlistment examination and August 1977 separation examination. Additionally, military personnel records show that the Veteran did not serve in Vietnam, but in Fort Jackson, Fort Sam, and Germany. The Board finds that the record does not show that the Veteran experienced an event or injury related to his incontinence during his active service with the U.S. Army Reserves. The Veteran’s service treatment records do not document such an incident or injury and the Veteran has not asserted or presented evidence of an in-service event or injury related to his incontinence. Accordingly, as there is no competent and credible evidence of an in-service event or incurrence, or probative evidence relating incontinence to service the Board finds that entitlement to service connection for incontinence is not warranted. Additionally, secondary service connection is not established for the Veteran’s incontinence. While the Veteran claims that his incontinence is secondary to his prostate cancer, he is not currently service connected for prostate cancer. In fact, he is currently only service connected for bilateral hearing loss, tinnitus, and hemorrhoids. However, the Veteran does not claim, nor does the evidence of record show, that his incontinence is caused or aggravated by his service-connected disabilities. The Board has also considered the Veteran’s lay statements. Although he is competent to describe observable symptoms, he is not competent to opine as to the etiology of his incontinence, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran’s lay opinions that his incontinence is related to his active service does not constitute competent medical evidence and lacks probative value. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for incontinence. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for erectile dysfunction The Veteran asserts that he incurred his incontinence during service, specifically due to in-service exposure to Agent Orange in Vietnam, or that it is due to his prostate cancer. VA treatment records from April 2012 to May 2016 show that the Veteran has erectile dysfunction. Service treatment records show that the Veteran did not have a diagnosis of, treatment for, or complaints of erectile dysfunction, including December 1974 enlistment examination and August 1977 separation examination. Additionally, military personnel records show that the Veteran did not serve in Vietnam, but in Fort Jackson, Fort Sam, and Germany. The Board finds that the record does not show that the Veteran experienced an event or injury related to his erectile dysfunction during his active service with the U.S. Army Reserves. The Veteran’s service treatment records do not document such an incident or injury and the Veteran has not asserted or presented evidence of an in-service event or injury related to his erectile dysfunction. Accordingly, as there is no competent and credible evidence of an in-service event or incurrence, or probative evidence relating erectile dysfunction to service the Board finds that entitlement to service connection for erectile dysfunction is not warranted. Additionally, secondary service connection is not established for the Veteran’s erectile dysfunction. While the Veteran claims that his erectile dysfunction is secondary to his prostate cancer, he is not currently service connected for prostate cancer. In fact, he is currently only service connected for bilateral hearing loss, tinnitus, and hemorrhoids. However, the Veteran does not claim, nor does the evidence of record show, that his erectile dysfunction is caused or aggravated by his service-connected disabilities. The Board has also considered the Veteran’s lay statements. Although he is competent to describe observable symptoms, he is not competent to opine as to the etiology of his erectile dysfunction, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran’s lay opinions that his erectile dysfunction is related to his active service does not constitute competent medical evidence and lacks probative value. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for erectile dysfunction. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a dental disability, to include the upper teeth, status post mouth surgery The Veteran generally contends that he has a dental disability, to include that of his upper teeth disability, due to his military service. VA dental benefits take two forms. First, there is disability compensation payable for loss of teeth or other dental problems as a result of in-service trauma or disease. 38 C.F.R. §§ 3.4, 3.100, 4.150, Diagnostic Code 9913. Dental disabilities that may be compensable are set forth in 38 C.F.R. § 4.150. They include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, DCs 9900-9916. For compensation purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service. VAOGCPREC 5-97, 62 Fed. Reg. 15566 (1997); Nielson v. Shinseki, 607 F.3d 802, 804 (Fed. Cir. 2010). Second, there is treatment entitlement, which is based upon classification of Veterans based on their service, their current problems, and the relationship of such problems to service. 38 C.F.R. §§ 3.381, 17.161. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. In this decision, the Board only addresses the issue of entitlement to disability compensation for the Veteran's claimed dental disorder. As explained above, the issue of entitlement to dental treatment has been referred by the AOJ to VHA. Service treatment records indicate that the Veteran injured his upper lip in January 1977 when he fell out of his bunk. This resulted in a large laceration of the upper lip within his mouth. November 2016 and March 2017 VA treatment records show complaints of upper teeth pain. In this case, there is no medical evidence of record, either prior to or during the pendency of the current claim, indicating that the Veteran has been diagnosed or treated for any of the conditions listed above for which service-connected compensation is warranted. To the extent that the Veteran purports to offer evidence that he has a qualifying dental disability, the Board finds that such statements are not competent, as the diagnosis of these disabilities is a complex medical question. There is no evidence that the Veteran has the requisite medical expertise or training to diagnose a mandibular related disability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, his lay statements as to whether he has a qualifying dental disability are not competent and thus lack probative value. There is thus no evidence, medical or otherwise, that the Veteran has any current dental disorder for which compensation is payable. See 38 C.F.R. § 4.150. Without a current qualifying disability present, the Board finds that the Veteran does not have a compensable dental disorder. Under these circumstances, the Board must deny the claim for service connection for a dental disorder, for compensation purposes. REASONS FOR REMAND 1. Entitlement to service connection for a left fourth finger fracture is remanded. The February 2015 VA examination is inadequate to make an informed decision on the Veteran’s claim for service connection for a left fourth finger fracture. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The February 2015 VA examiner found that the Veteran did not have a fracture of the left forefinger, but found that the Veteran had arthritis in his left hand which was documented in multiple joints of that hand. The examiner opined that it was less likely than not that the Veteran’s left forefinger fracture was incurred in active service because he did not have a diagnosis of a left forefinger fracture. However, the examiner did not address the diagnosis of left hand arthritis or the Veteran’s March 2016 lay statement, in which he reported that he had pain in the left fourth finger since service. Hence, a remand is required for further development. The matter is REMANDED for the following action: Obtain an addendum opinion from the February 2015 VA examiner, or, if not available, another appropriately qualified VA examiner. If deemed necessary by the examiner, afford the Veteran a VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner is requested to provide a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current left fourth finger disability, to include arthritis, is due to his military service. The examiner should address the Veteran’s lay statements regarding having pain in his fourth finger since service. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel