Citation Nr: 21001047 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-15 707 DATE: January 6, 2021 ORDER Entitlement to service connection for an enlarged prostate to include as due to exposure to herbicides is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 20, 2010 is denied. FINDINGS OF FACT 1. At no point has the Veteran ever been diagnosed as having prostate cancer, notwithstanding his presumed exposure to tactical herbicide agents by virtue of his Vietnam service. 2. The preponderance of the evidence is against a finding that the Veteran’s prostate disability, diagnosed as benign prostate hypertrophy, was incurred in, caused by or otherwise related to his active service, to include as due to exposure to tactical herbicide agents. 3. VA received the Veteran’s claim for an increased evaluation of PTSD on October 20, 2010. CONCLUSIONS OF LAW 1. A prostate disability, diagnosed as benign prostate hypertrophy, was not incurred in service and is not otherwise related to service, to include herbicide exposure in service. 38 U.S.C. § 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to a TDIU prior to October 20, 2010, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.1-4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to January 1969. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a September 2019 hearing, and a copy of the hearing transcript is associated with the claims file. In January 2020, these issues were last before the Board, at which time the Board remanded them. It its January 2020 decision, the Board also granted entitlement to a 70 percent, but no greater, disability evaluation for posttraumatic stress disorder (PTSD). In May 2020, the Veteran filed a Motion for Reconsideration of the Board’s January 2020 decision to the extent that the Board failed to remand the claim for an increased evaluation for PTSD along with the claim for a TDIU. In a July 2020 Ruling on Motion, the Board denied the Motion for Reconsideration. The Veteran did not appeal that denial. In an August 2020 rating, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU effective October 20, 2010. 1. Entitlement to service connection for an enlarged prostate, to include as due to exposure to herbicides. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, a “veteran who, during active military, naval, or air 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 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases include prostate cancer. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg.27641 (2003). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for various conditions and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Here, while the Veteran may be presumed to have been exposed to herbicides by virtue of his Vietnam service, he has never been diagnosed as having prostate cancer. A review of the record discloses that the Veteran was first assessed as having benign prostate hypertrophy (BPH) around 2005. See December 2011 correspondence from Veteran. VA records document a diagnosis in 2007. Otherwise, medical records document continuous diagnosis of BPH, with a history of transurethral resection of the prostate (TURP) in July 2013. No record documents a diagnosis of prostate cancer, and the ability to assess cancer is beyond the purview of the Veteran, a layperson. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, because the Veteran has not had prostate cancer the regulations allowing for service connection of prostate cancer related to presumed exposure to tactical herbicides are inapplicable. The Veteran contends that his enlarged prostate, BPH, is attributable to service, particularly exposure to tactical herbicide agents. He points out that he believes that he handled bombs that were used to disperse Agent Orange during his service aboard the USS America in the late 1960s. His service records document service in Vietnam, and as noted above, he is presumed to have been exposed to tactical herbicide agents. Although presumptive service connection is not warranted in this regard, service connection may still be established on a direct basis. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of BPH, and evidence shows that the Veteran was presumptively exposed to tactical herbicides, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of BPH began during service or is otherwise related to an in-service injury, event, or disease. The Veteran has stated that he was first diagnosed and treated for BPH in 2005 by a private practitioner. VA treatment records dated in July 2007 confirm laboratory findings of elevated PSA with assessment of BPH. BPH was not assessed until decades after his separation from service. While the Veteran is competent to report having experienced symptoms of urinary hesitancy, frequency, etc., he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of BPH. The issue is medically complex, as it requires knowledge of [the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the March 2020 VA examiner opined that the Veteran’s BPH is not at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicides. The rationale was that the Veteran did not have any prostate problems during service, but rather not until approximately 2010. The examiner explained that the etiology of BPH was unknown and that 50 percent of men over age 50, and 90 percent of men over age 80, developed an enlarged prostate. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his BPH is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical education, knowledge of pathology and interpretation of complicated diagnostic medical testing]. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinion. 2. Entitlement to a TDIU prior to October 20, 2010. (Continued on the next page)   A total rating may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and enough additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). However, under 38 C.F.R. § 4.16 (b) all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability should be referred to the Director. Entitlement to a TDIU on an extraschedular or schedular basis is not warranted. The Veteran has one service-connected disability, namely, posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling prior to October 20, 2010, and 70 percent disabling since then. A TDIU has been awarded effective October 20, 2010 based only on PTSD. Here, VA adjudicated the TDIU as part and parcel of the increased rating for PTSD claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The increased rating claim was received by VA on October 20, 2010. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). VA received the claim for increase on October 20, 2010. It is therefore impossible for the Board to award entitlement to a TDIU prior to this date. Accordingly, the claim must therefore be denied. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.