Citation Nr: 21003896 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 12-14 885 DATE: January 25, 2021 ORDER Entitlement to service connection for chronic prostatitis, including as due to in-service exposure to an herbicide agent, is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran served in the Republic of Vietnam; thus, his in-service exposure to an herbicide agent is presumed. 2. The record evidence shows that the Veteran’s chronic prostatitis is not related to active service or any incident of service, including as due to his presumed in-service exposure to an herbicide agent. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic prostatitis, including as due to in-service exposure to an herbicide agent, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1961 to September 1963 and from October 1968 to October 1970, including in the Republic of Vietnam from November 1969 to October 1970. He also had additional unverified U.S. Army Reserve service. In July 2018, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ attempt to obtain certain identified private treatment records for the Veteran and a medical nexus opinion concerning the nature and etiology of his chronic prostatitis. The AOJ documented multiple attempts to obtain the identified records in the claims file and obtained the requested opinion in October 2019. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). While this appeal was on post-remand at the AOJ, VA communicated frequently with the Veteran regarding multiple attempts to obtain certain identified private treatment records pursuant to the Board’s remand. The AOJ appears to have exhausted all reasonable efforts to obtain the records requested in the Board’s July 2018 remand and kept the Veteran well informed of these efforts. The Board also notes that the Social Security Administration (SSA) notified the AOJ in October 2013, prior to the remand, that the Veteran’s SSA records were no longer available because they had been destroyed. Having reviewed the record evidence, the Board finds it reasonably certain that the private treatment records requested in the July 2018 remand and the Veteran’s SSA records do not exist and further efforts to obtain them would be futile. 1. Entitlement to service connection for chronic prostatitis, including as due to in-service exposure to an herbicide agent The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for chronic prostatitis, including as due to in-service exposure to an herbicide agent. The Veteran essentially contends that he incurred chronic prostatitis during active service, including as due to in-service exposure to an herbicide agent while in Vietnam, and experienced continuous post-service disability. The record evidence does not support his assertions regarding an etiological link between his chronic prostatitis and active service or any incident of service, including as due to in-service exposure to an herbicide agent, The Board notes initially that, because the Veteran’s DD Form 214 shows that he had in-country service in the Republic of Vietnam from November 1969 to November 1970, his in-service exposure to an herbicide agent is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2019). Although his in-service exposure to an herbicide agent is presumed, the record evidence does not support finding an etiological link between such exposure and his chronic prostatitis. It is undisputed that the Veteran currently experiences disability due to chronic prostatitis. It also is undisputed that chronic prostatitis is not among the diseases for which service connection is available on a presumptive basis due to in-service exposure to an herbicide agent. See 38 C.F.R. § 3.309(e) (2019). The Veteran instead relies heavily on a letter from N. A. O., M.D., dated in August 2009 as support for his assertion that his presumed in-service exposure to an herbicide agent caused or aggravated (permanently worsened) his current chronic prostatitis. In this letter, Dr. N. A. O. stated that the Veteran “has also been evaluated continuously due to a chronic prostatitis. He presents [with] urinary incontinence. Even thou[gh] he has been on multiple medications his prostate do not improve [sic]. Please evaluate him carefully to rule out the possibility that his prostate problem is related to exposure to Orange Agent.” The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his [or her] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Dr. N. A. O. essentially provided no “clinical data or other rationale” for her August 2009 letter and concluded only that there is a “possibility” that the Veteran’s conceded in-service exposure to an herbicide agent (or Agent Orange) caused his current chronic prostatitis. The Board observes in this regard that current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Accordingly, even if the August 2009 opinion from Dr. N. A. O. is viewed in the light most favorable to the Veteran, this evidence does not establish service connection for chronic prostatitis as due to in-service exposure to an herbicide agent. In contrast, a VA clinician opined in October 2019 that it was less likely than not that the Veteran’s in-service exposure to an herbicide agent caused or aggravated (permanently worsened) his chronic prostatitis. The rationale for this opinion was based on a review of the claims file, including the August 2009 letter from Dr. N. A. O. The rationale for the VA clinician’s October 2019 opinion also was based on a review of relevant medical literature which “fails to show that chronic prostatitis and benign prostatic hypertrophy are caused by or result of Agent Orange or herbicide exposure. Therefore, medical literature rules out that the Veteran’s chronic prostatitis and benign prostatic hypertrophy [are] a result of or caused by…Agent Orange or herbicide exposure.” This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for chronic prostatitis as due to in-service exposure to an herbicide agent. Thus, the Board finds that service connection for chronic prostatitis as due to in-service exposure to an herbicide agent is not warranted. The Veteran also is not entitled to service connection for chronic prostatitis on a direct basis. See 38 C.F.R. §§ 3.303, 3.304 (2019). Contrary to his lay assertions, the record evidence shows instead that his chronic prostatitis is not related directly to active service. The available service treatment records show no complaints of or treatment for chronic prostatitis during either period of active service. The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting the Veteran’s claim of service connection for chronic prostatitis on a direct basis. Contrary to his lay assertions, it shows instead that, although he has complained of and been treated for chronic prostatitis since his service separation, it is not related to active service. The Veteran’s available post-service VA and private treatment records show ongoing complaints of and treatment for chronic prostatitis in the decades since his service separation. For example, in her August 2009 letter, Dr. N. A. O. noted that the Veteran “has been evaluated continuously due to a chronic prostatitis” and presented with urinary incontinence. This physician also stated that the Veteran’s prostate problems had not been improved despite being treated with multiple medications. The Board notes here that, because it previously found an April 2015 VA male reproductive system conditions Disability Benefits Questionnaire (DBQ) to be inadequate for VA adjudication purposes in the July 2018 remand, this evidence was not reviewed or relied upon in adjudicating the currently appealed claim. In an October 2019 opinion, a VA clinician opined that it was less likely than not that the Veteran’s chronic prostatitis is related to active service. The rationale for this opinion was based on a review of the claims file. Contrary to the Veteran’s lay assertions, the record evidence shows that his chronic prostatitis is not related directly to active service. The VA clinician specifically opined in October 2019 that it is less likely than not that this disability is related directly to active service. This opinion was fully supported. See Stefl, 21 Vet. App. at 124. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for chronic prostatitis. In summary, the Board finds that service connection for chronic prostatitis is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.