Citation Nr: 20005487 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 18-42 737 DATE: January 23, 2020 ORDER Service connection for prostate cancer is denied. FINDING OF FACT The Veteran’s prostate cancer is not caused by, related to, or aggravated by service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1974 to May 1980. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2017 rating decision. In September 2019, the Board remanded the Veteran’s claim to obtain an addendum VA examination opinion regarding whether the Veteran’s prostate cancer has been aggravated by his service-connected chronic prostatitis and urinary tract infection disability. The claim has since been returned to the Board for review. The Board finds the addendum examination opinion provided in connection with the remand instructions is adequate and substantially complied with the remand instructions. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran asserts that his prostate cancer is caused by, related to, or aggravated by his service-connected chronic prostatitis and urinary tract infection disability. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show the existence of (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). The Board has reviewed the evidence of record and finds that service connection is not warranted for the Veteran’s prostate cancer. Initially, the Board notes that the Veteran’s service treatment records (STRs) do not exhibit complaints, treatment, or evidence of prostate cancer. During his entrance examination, periodic examinations, and medical visits, there are also no indications of prostate cancer. In November 2016, over 36 years after discharge from service, the first evidence of prostate cancer is noted evidence of record. Although the Veteran specifically contends that his prostate cancer is caused by, related to, or aggravated by his service-connected chronic prostatitis and urinary tract infection disability, the Board finds that the STRs do not support a finding that the Veteran’s prostate cancer was incurred in, caused by, or related to service. Next, in March 2017, the Veteran underwent an in-person VA examination with claims file review regarding prostate cancer. The Veteran reported a history of non-bacterial prostatitis since approximately 1975. The examiner noted that the Veteran was diagnosed with prostate cancer in November 2016. The examiner opined that it is less likely than not that the Veteran’s prostate cancer is caused by or related to his chronic prostatitis and urinary tract infection disability. In the rationale the examiner noted the Veteran’s history of non-bacterial prostatitis and urinary tract infections, and the examiner stated that of the known prostate cancer risk factors, the most important are age, ethnicity, genetic factors, and dietary factors. The examiner stated that the assertion that prostate cancer is associated with prostatitis, inflammation, and infection has been well studied but that the studies suffer from significant sample selection bias. The examiner further stated that the sample selection bias prevents the medical community from accepting the premise that inflammation and/or infection cause prostate cancer. Therefore, as the association between prostate cancer and prostatitis or a urinary tract infection disability is not considered evidence based-fact, the examiner found that there was no relationship between prostate cancer and prostatitis or urinary tract infections. The Board finds the conclusions of the March 2017 VA examiner to be of highly probative value. The examiner specifically stated the most important known risks of prostate cancer, which do not include chronic prostatitis or a urinary tract infection disability. Further, the examiner explained that evidence indicating a relationship between prostate cancer and chronic prostatitis or a urinary tract infection disability suffer from significant sample selection bias and have therefore not been accepted by the medical community. Thus, the Board finds that the conclusions of the March 2017 VA examiner supports the finding that the Veteran’s prostate cancer is not caused by or related to the Veteran’s chronic prostatitis or urinary tract infection disability. In June 2017, the Veteran underwent a second in-person VA examination regarding prostate cancer; however, the Board notes that the examiner indicated that no records were reviewed in conjunction with the in-person examination. The examiner cited a medical study finding that prostatitis increased the risk of prostate cancer by 30 percent. Thus, the examiner found that the Veteran’s diagnosis of chronic prostatitis had evolved into a diagnosis of prostate cancer. The Board notes that the conclusions of the June 2017 VA examiner do provide potentially positive evidence regarding the relationship between prostate cancer and chronic prostatitis or a urinary tract infection disability; however, the Board finds the June 2017 VA examination to be inadequate as the examiner failed to properly conduct a claims file review. The Board further notes that the AOJ cured this inadequacy by providing an addendum VA examination opinion in June 2018, which addressed this potentially positive evidence regarding a relationship between prostate cancer and chronic prostatitis or a urinary tract infection disability. Subsequently, in the June 2018 addendum VA examination opinion with claims file review regarding prostate cancer, the examiner first noted the Veteran’s history of prostatitis and urinary tract infections since the 1970s and a diagnosis of prostate cancer in November 2016. The examiner cited to medical literature and stated that prostatitis is a benign ailment, which while not always curable, is almost always treatable with antibiotics. The examiner further stated that inflammation due to prostatitis can raise the prostate-specific antigen (PSA) level used to diagnose prostate cancer; however, it does not lead to cancer. Moreover, the examiner stated that although the conditions can co-exist and be correlated, correlation does not indicate causation and that there is no clinical evidence of causation between the conditions. The Board finds the conclusions of the June 2018 VA examiner to be of highly probative value. Although the June 2017 VA examiner may have stated that chronic prostatitis indicates a 30 percent increase risk for prostate cancer, the June 2018 VA examiner thoroughly explained this indicated increased risk as merely a correlation. Further, the June 2018 VA examiner explained that regarding the correlation of chronic prostatitis and prostate cancer, correlation does not indicate causation. The Board notes that these findings are analogous to the March 2017 VA examiner’s findings, which noted a significant sample bias in studies regarding such correlations. Therefore, the Board finds that the conclusions of the June 2018 VA examiner again supports the finding that the Veteran’s prostate cancer is not caused by or related to the Veteran’s chronic prostatitis or urinary tract infection disability. In October 2019, the Veteran was afforded a second addendum VA examination opinion with claims file review regarding prostate cancer. The examiner opined that it was less likely than not that the Veteran’s prostate cancer has been contributed to by, or aggravated by, his service-connected prostatitis and urinary tract infection disability. Further the examiner opined that it is less likely than not that the Veteran’ prostate cancer was aggravated beyond its natural progression by his service-connected prostatitis and urinary tract infection disability. In the rationale, the examiner noted the Veteran’s baseline severity of his prostate cancer at diagnosis, and the examiner explained that the Veteran’s prostate cancer was treated with radiation hormonal therapy and the cancer responded as expected. Further, the examiner explained that the Veteran’s PSA level is currently undetectable and the cancer is in remission. The Board finds the conclusions of the October 2019 VA examiner to be of highly probative value. The examiner thoroughly discussed the Veteran’s history, severity, PSA levels, and treatment for prostate cancer. The examiner explained that the Veteran’s prostate cancer responded as expected to radiation treatment and is now in remission. The Board finds that that this evidence demonstrates that as the Veteran’s prostate cancer is now undetectable and is in remission, it has not been aggravated by or contributed to by chronic prostatitis and urinary tract infections or aggravated beyond its natural progression by chronic prostatitis and urinary tract infections. Further, in October 2019, the Veteran submitted a statement from his private physician. The physician noted the Veteran’s history of chronic prostatitis and diagnosis of prostate cancer in November 2016. The physician stated that an MRI revealed no evidence of tumor invasion outside of the prostate capsule and no evidence of metastatic disease. Further, the physician stated that the Veteran’s prostate cancer was deemed a degenerative disease. The physician opined that given this information, the issue of whether a long history of prostatitis and urinary problems could have caused prostate cancer is entirely possible, but the physician could not state that this is what occurred in the Veteran’s case. In an appellate brief submitted in December 2019, the Veteran’s representative stated that the AOJ affirmed the denial of service connection for prostate cancer without addressing the October 2019 statement from the Veteran’s private physician. Further, the representative stated that the Veteran did not waive initial AOJ consideration of this evidence. The Board finds that as the Veteran’s substantive appeal in this case was received after February 2, 2013, a waiver of initial AOJ consideration of this additional evidence is not required because it was submitted by the Veteran and not obtained by VA. 38 C.F.R. §§ 20.800, 20.1304. The Board finds the conclusions of the Veteran’s private physician in the October 2019 statement to be of little probative value and inadequate. The physician did not state that it was at least as likely as not that the Veteran’s prostate cancer was caused by chronic prostatitis or a urinary tract infection disability. The physician merely stated that it is possible, but that he could not say that is what happened in the Veteran’s case. Thus, the Board finds the conclusions of the March 2017, June 2018, and October 2019 VA examiners to be of much greater probative value than the October 2019 statement from the Veteran’s private physician. Further, the private physician did not provide an adequate rationale as the statement was merely a recitation of the Veteran’s medical history that did not include statements specific to a relationship, causation, or aggravation between prostate cancer and chronic prostatitis or a urinary tract infection disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.