Citation Nr: 21000184 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-00 711 DATE: January 4, 2021 ORDER Service connection for prostate cancer, to include as due to exposure to herbicide agents and/or asbestos, is denied. Service connection for renal cancer, to include as due to exposure to herbicide agents and/or asbestos, is denied. FINDINGS OF FACT 1. The record does not contain any competent and credible evidence that the Veteran has had prostate cancer or any residual symptoms of prostate cancer at any time since May 2012, when he filed his claim for benefits. 2. The record does not contain any competent and credible evidence that the Veteran has had renal cancer or any residual symptoms of renal cancer at any time since May 2012, when he filed his claim for benefits. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for renal cancer have not been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from July 1964 to June 1968. His decorations include the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge, sitting at the RO in St. Louis. A transcript of that hearing has been associated with the record. The issues presently on appeal were previously before the Board in June 2020, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. The Board asked the AOJ to obtain any updated records of VA treatment and to undertake efforts to determine whether the Veteran served within 12 nautical miles of Vietnam during service. The AOJ obtained updated VA treatment records in August 2020, and in September 2020 found that the Veteran served within 12 nautical miles of Vietnam during service and confirmed that he had been therefore been exposed to herbicide agents on a presumptive basis. The Board finds that the AOJ substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that while not directed to do so in the remand, the AOJ also sent the Veteran a letter in June 2020 asking him to identify and provide a release for records from any private care providers who may have treated him for the disabilities at issue. He did not respond to that request. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for prostate cancer, to include as due to exposure to herbicide agents and/or asbestos 2. Service connection for renal cancer, to include as due to exposure to herbicide agents and/or asbestos The Veteran contends that he has prostate cancer and renal cancer that were incurred in or caused by service. Specifically, he contends that the conditions are due to his exposure to herbicide agents and/or asbestos in service. In the present case, the Board finds that the preponderance of the evidence is against the Veteran’s claims. His medical records do not reflect that he has ever been diagnosed with prostate cancer or renal cancer, even when tested. Regarding prostate cancer, there is simply no evidence that the Veteran has ever been diagnosed with, treated for, prostate cancer. A review of the claims file shows that the only diagnosis of any kind related to the prostate is benign hypertrophy of the prostate. See May 2013 VA treatment record. That condition is decidedly different from prostate cancer. Indeed, the Veteran acknowledged at his March 2020 hearing that he had not been diagnosed with prostate cancer. Regarding renal cancer, the Veteran’s treatment records indicate that he had a renal mass in the left kidney that was suspicious for carcinoma in December 2011, for which he underwent an ablation in September 2012. An ultrasound in September 2014 showed no solid renal mass or calculus in the right kidney, but did show indeterminate, numerous small hyperechoic foci throughout the liver. He was given differential diagnoses at that time, but neither renal nor any other type of cancer was confirmed. A July 2017 ultrasound was also negative for any type of cancer. Imaging in January 2018 showed indeterminate renal lesions, with a lesion on the left kidney suggestive of the prior ablation. Once again, cancer was not confirmed. A CT of the abdomen in August 2018 again showed a cyst in the left kidney, but there was no other evidence of a mass, lymphadenopathy or abnormal fluid collection in the abdomen or pelvis. The Veteran’s condition was rated as stable at that time. The Veteran had another CT of the chest, abdomen, and pelvis in December 2018, but that scan was also negative for malignancy. The most recent VA treatment records under consideration by the Board are from August 2020, and records through that date do not indicate that the Veteran has ever been diagnosed with or treated for prostate cancer or renal cancer. The Board acknowledges that the Veteran is competent to report symptoms of a disability, and he is competent to report a contemporaneous medical diagnosis as told to him by a physician. He is not competent, however, to render a diagnosis of prostate or renal cancer on his own. The Board has considered the fact that the Veteran has not been afforded a VA examination and opinion relative to his claim for entitlement to service connection for prostate cancer and renal cancer. In the absence of any competent and credible evidence that he has a current diagnosis of prostate or renal cancer, however, an examination and opinion is not required. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine does not apply. 38 U.S.C. § 5107(b). The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.