Citation Nr: A19001559 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190131-3330 DATE: September 26, 2019 ORDER Service connection for prostate cancer, also claimed as a prostate disorder is denied. REMANDED The issue of entitlement to service connection for bilateral foot fungus is remanded. FINDING OF FACT The competent and probative evidence is against finding that a prostate disorder, including prostate cancer had its onset during active service, was caused by active service, or that cancer was manifested within one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a prostate disorder, to include prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the rating decision on appeal was issued in April 2017. In July 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran was a member of the National Guard from September 1981 to September 2010 with multiple periods of active duty for training (ACDUTRA), and he served on active duty from December 1990 to July 1991. In September 2016, the Veteran filed claims for service connection for prostate cancer and bilateral foot fungus condition. His claims were denied in the April 2017 rating decision. In May 2017, the Veteran filed a timely notice of disagreement. The denial of his claims was continued in the December 2017 statement of the case. A substantive appeal was received in January 2018. Subsequent to this statement of the case, the Veteran selected the Higher-Level Review lane, without submission of additional evidence, when he opted in to the Appeals Modernization Act (AMA) review system by submitting a RAMP Opt-in Election form. Under the Higher-Level Review lane, the RO denied his claim in an October 2018 AMA rating decision, based on the evidence of record as of July 16, 2018, the date of election of the Higher-Level Review Lane. In January 2019, the Veteran timely appealed this rating decision to the Board by submitting a notice of disagreement, requested evidence submission, and submitted additional evidence. The Veteran did not submit any evidence during the 90 day period since the Board’s receipt of the Board appeal request in April 2019. In this decision, therefore, the evidence of record as of July 16, 2018 and the evidence submitted with the January 2019 notice of disagreement are reviewed. 84 Fed. Reg. 138, 156 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.303). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as malignant tumors, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. It is noted that this 1 year presumption does not apply to active or inactive duty for training periods. The Board notes that some of the Veteran’s service medical records are unavailable as documented in a June 1996 Formal Finding on the Unavailability of Service Medical Records for the Following Period: Active Duty from 12-06-90, to 07-01-01. There are some records from this period on file, as well as some records for other Reserve periods, but a further attempt to obtain more complete records would be futile. In cases such as this, in which the Veteran’s service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, this heightened obligation does not establish a heightened “benefit of the doubt” or lower the legal standard for proving a claim of service connection; rather, it increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Prostate Disorder, including Prostate Cancer The Board finds that the onset of the Veteran’s prostate cancer was in 2016 and no medical evidence establishes that it is caused by his active duty. There is no evidence of any prostate complaints or findings in the available service treatment records. The earliest post-service medical record for any treatment or complaint with regards to prostate pathology is an August 2010 private treatment record submitted by the Veteran, which indicates that his Prostate-Specific Antigen (PSA) level at the time was 1.98 ng/mL. He was diagnosed with prostatic adenocarcinoma based on pathology examination in February 2016 with PSA at 3.88 ng/mL in March 2016. However, there is no medical evidence linking this pathology to service. The Board acknowledges that the Veteran asserted that his PSA increased during the active duty period, the preponderance of the evidence does not support the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the etiology of prostate cancer fall 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). The Veteran is not shown to have medical expertise or experience in these areas. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. The Board acknowledges that the Veteran has not been afforded a VA examination for his claim. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is no evidence of an event, injury, or disease in service, or of a presumptive disease, such as prostate cancer during the pertinent presumptive period and the Veteran has not referenced any. Additionally, there is no medical evidence linking a current diagnosis of the claimed disability to the Veteran’s military service. Therefore, the second and third McLendon factors have not been met, and no VA examinations are necessary. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for prostate cancer must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection for Bilateral Foot Fungus The Veteran maintains that he has bilateral foot fungus due to use of military boots, which did not allow sufficient air circulation. A July 2002 VA examination reflects a finding of “an eczematous plaque on right foot, dorsal aspect.” Together with the Veteran’s assertion for in-service incurrence and nexus, a medical examination is warranted in order to decide this claim. McLendon, supra. Failure to get the examination is considered a pre-decisional error in the duty to assist in developing the claim. The matter is REMANDED for the following action: 1. Obtain and associate all outstanding, relevant treatment records with the claims file. All attempts to obtain documents should be detailed in the claims folder. The Veteran’s assistance in identifying and obtaining the records should be requested as needed. 2. Schedule the Veteran for an examination by an appropriate clinician to determine presence, and if present, the nature and etiology of any bilateral foot fungus. The examiner must determine if a chronic or continuing bilateral foot fungus is present. If so, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the use of tight boots, as asserted by the Veteran. If no chronic foot fungus is found, that too should be specifically set out. The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should explain why. A complete and fully explanatory rationale must be provided for any and all opinions expressed. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.