Citation Nr: 21003235 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-29 428 DATE: January 21, 2021 ORDER Entitlement to service connection for a prostate disorder is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT A chronic prostate disorder was not shown in service or for many years thereafter; and, the preponderance of the evidence fails to establish that a present prostate disorder is etiologically related to service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a prostate disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1963 to November 1965. He had service in the Republic of Vietnam in August 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in February 2020. Service Connection 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. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Veterans diagnosed with an enumerated disease who served in the Republic of Vietnam on active service during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed 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; 38 C.F.R. § 3.307(a)(6)(iii). Certain disorders, including prostate cancer, if manifest to a degree of 10 percent or more for an herbicide exposed veteran may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), 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). Prostate enlargement is not an enumerated qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA case law has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact “incurred” during the service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for a prostate disorder. The Veteran contends that he has a prostate disorder as a result of active service. He asserted the disorder developed as a result of herbicide agent (Agent Orange) exposure. He is shown to have served in the Republic of Vietnam during the Vietnam Era and he is thereby presumed to have been exposed to herbicide agents during service. VA treatment records include diagnoses of benign prostate hypertrophy without opinion as to etiology. VA medical opinions in February 2020 found that the Veteran’s claimed prostate disorder was less likely incurred in or caused by the claimed in-service injury, event, or illness and was less likely proximately due to or the result of a service-connected disability. It was noted that his enlarged prostate was age appropriate, was less likely associated with service or a service-connected diabetes mellitus disability, and that there was no aggravation beyond natural progression. Based upon the evidence of record, the Board finds that a prostate disorder was not manifest during active service. The Veteran does not claim to have had complaints, treatment, or diagnosis of a prostate disorder during active service nor is any such disorder shown by the competent and credible evidence of record. There is also no evidence of prostate cancer and presumptive service is not warranted. Evidence of continuous symptoms since service is also not shown. As to question of whether the Veteran’s current prostate disorder, enlargement, is etiologically related to service or to a service-connected disability, the preponderance of the evidence weighs against his claim. The February 2020 VA medical opinions are persuasive as to these matters based upon the provided rationale. The opinion is presumed, in the absence of any conflicting evidence, to have been based upon an adequate consideration of the Veteran’s presumed herbicide agent exposure as evidenced by the examiner’s acknowledgement of having reviewed the available VA record, including the Board having conceded exposure to Agent Orange in its February 2020 remand. In fact, the evidence demonstrates that his prostate enlargement (benign prostate hypertrophy) is appropriate for his age and that there is no evidence of aggravation beyond natural progression, which the Board construes as excluding any other etiologic causes. The February 2020 VA examiner is shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has also been given to the personal assertions of the Veteran that he has a prostate disorder as a result of service, including as a result of herbicide exposure. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds service connection for a prostate disorder is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that he has hypertension as a result of active service, to include as a result of herbicide exposure. Although a February 2020 VA examination found a diagnosis of hypertension was not warranted and that the Veteran took medication to increase his blood pressure in order to receive dialysis treatment, the Board finds the finding to be inconsistent with other medical evidence of record and did not address whether hypertension had otherwise been manifest during the appeal period. It is also significant to note that treatment records indicate the Veteran was prescribed anti-hypertensive medication as early as March 2005, that a VA disability benefits questionnaire (DBQ) received in September 2012 included a diagnosis of hypertension with a date of diagnosis in July 2010, and that a November 2018 VA medical opinion noted private treatment reports indicated the Veteran’s chronic kidney disease was due to hypertension. Therefore, additional development is required prior to appellant review. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has a hypertension disability, either currently or manifest at any time during the appeal period, that is at least as likely as not related to service, including as a result of herbicide exposure during service in Vietnam, or is proximately due to a service-connected disability or underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide a rationale to support the opinion. (Continued on the next page)   (SIGNATURE ON NEXT PAGE) MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.