Citation Nr: 21003240 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-36 296A DATE: January 21, 2021 ORDER Service connection for prostate disorder, to include prostatitis is denied. FINDINGS OF FACT 1. The Veteran had active service from March 1970 to October 1971, and from March 1979 to July 1992, and served in both the Vietnam and the Gulf War eras. 2. The Veteran is presumed to have been exposed to herbicides and has qualifying service in the Southwest Asia Theater of Operations. 3. The Veteran has a current diagnosis of prostatic hypertrophy and chronic prostatitis. CONCLUSIONS OF LAW The Veteran’s prostate disorder was not incurred in service. 38 U.S.C. §§ 1110, 1111, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310(a), 3.311 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION In an April 2019 decision, the Board denied claims of service connection for prostate condition and hypertension and remanded claims of service connection for bilateral knee and skin disorders. The Veteran subsequently appealed the Board’s April 2019 decision to the United States Court of Appeals for Veterans Claims (Court). The parties to the appeal entered a January 2020 Joint Motion for Partial Remand (JMPR) for the claims of service connection for prostate condition and for hypertension to the Board. In a February 2020 Order, the Court granted the Joint Motion. In July 2020, following the Court’s remand, the Board remanded issues of prostate disorder and hypertension to the Regional Office (RO) for further development. In the interim the RO service-connected hypertension in a September 2020 decision, and prostate disorder returned to the Board for appellate adjudication. Entitlement to service connection for prostate disorder The Veteran contends that his prostate disorder incurred in service. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in §3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, including an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and other functional disorders. The disability must manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. An undiagnosed illness is one which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71, 382-84 (Oct. 17, 2016). Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for Veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under the “benefit-of-the- doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). There are no enumerated diseases which are associated with herbicide exposure in the Veteran’s claim. Prostate cancer is listed under Agent Orange associated diseases, but prostatic hypertrophy and chronic prostatitis, which the Veteran has, are not. 38 C.F.R. § 3.309(e). Because the August 2020 examiner determined the Veteran has current prostate diagnoses, the first of three prongs required for service connection is satisfied. The Board in April 2019 denied service connection on this issue, because it determined there was no current diagnosis saying, “Elevated prostate-specific antigen (PSA) which the Veteran has, is not a disability and therefore is not subject to service connection.” After returning from Court, the issue of prostate disorder was remanded by the Board in July 2020 to the RO for a current medical diagnosis, opinion, and VA examination or file review. The August 2020 VA examiner reviewed the record and in addition to determining the Veteran has current prostate diagnoses, she also confirmed a possible qualifying in-service event. Although Veteran's review of his [Service Treatment Record] STR's show he was treated for a prostate condition: acute prostatitis (1986), it was an acute episode treated with antibiotics, and resolved. There is a surgical clinic consult dated May 28, 1986 which reported on rectal exam: "tenderness of prostate"; diagnosis... 2. Prostatitis. There is no recorded evidence of recurrent urinary complaints, nor diagnosis of any chronic prostate condition in available Veteran's STR's. Separation exam dated April 1992, silent for any chronic prostate condition, nor related urinary symptoms. The August 2020 examiner went on to say there is no recorded evidence of any chronic prostate condition within a year of separation from service in July of 1992. Additionally, the examiner noted that prostatic hypertrophy and chronic prostatitis have not been included in the list of diseases associated with agent orange exposure. Veteran’s VA electronic files recorded evidence of urinary complaints related to prostate condition for the first time on December 31, 2008, when a primary care telephone note reported prescription of finasteride for mild obstructive urinary symptoms. This happened about sixteen years after the Veteran's military service. Therefore, the examiner opined, in view of all above recorded evidence, the Veteran's current prostate conditions, chronic prostatitis and prostatic hypertrophy, are not at least as likely as not, related to or had their onset during the Veteran’s service, to include presumed herbicide exposure. There are no other VA prostate examinations of record in the file. The Board finds the 2020 VA physician examiner competent and her examination report credible and adequate. Due to the complexity of the disability, the Board finds the Veteran not competent to opine that his current disability began in service. The Veteran through his representative in his January 2020 Court motion for partial remand listed the following evidence of record not discussed in the April 2019 Board decision, which denied service connection for lack of a current diagnosis: (1) (June 17, 2015 VA prostate biopsy report recording prostate volume of 100.4 cc); [R. at 885–86] (2) (October 13, 2011 VA urology consult noting “increased prostate volume” of 55 mL); (2) evidence of prostate-related symptoms of hematuria, dysuria, suprapubic discomfort, and urinary frequency, [R. at 1352] (3) (June 6, 2011 VA primary care note with report of hematuria, dysuria, and suprapubic discomfort following recent prostate biopsy); [R. at 1362 (1361–65)] (4) (November 1, 2010 VA primary care follow-up note with report of urinary frequency); and (3) evidence of medications Appellant takes or has taken for prostate symptoms, [R. at 18–19] (5) (November 5, 2015 VA primary care telephone note addendum reflecting prescription of finasteride to manage elevated PSA); [R. at 1413] (6) (December 31, 2008 primary care telephone encounter note reflecting prescription of finasteride for mild obstructive symptoms). The above listed evidence was part of the record at the time of the August 2020 VA examination and was considered if not discussed. The biopsy results were negative; so, prostate cancer diagnosis is unsupported. The rest of the evidence suggests a current prostate disability, and the VA examiner diagnosed two: chronic prostatitis and prostatic hypertrophy. Although the Veteran has qualifying service for both herbicide exposure and Gulf War syndrome presumptions, the Veteran’s prostate diagnoses are not listed among the Agent Orange or Gulf War associated disorders and as they are diagnosed conditions, they are not an undiagnosed illness. To the extent to which he was exposed to herbicides, the evidence does not suggest any direct link between the prostate diagnoses and this exposure. The Veteran’s prostate disorders are not among the chronic diseases listed in 38 C.F.R. § 3.309 and are therefore not eligible for presumptive service connection as chronic diseases. In sum, there is no approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter; so, the benefit of the doubt rule is inapplicable in this case. The evidence does not support the claim, and it therefore must be denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.