Citation Nr: 21066049 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 12-13 631 DATE: October 28, 2021 ORDER Entitlement to service connection for a prostate disorder is denied. FINDING OF FACT The competent evidence of record does not demonstrate that the Veteran has a prostate disorder that was incurred in or is otherwise attributable to service, to include as due to presumed exposure to toxic herbicide agents while in service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for a prostate disorder have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1959 to March 1983, to include verified service in the Republic of Vietnam during the Vietnam War Era. By way of history, this matter was denied by the Board in a June 2020 decision. Following the Veteran's appeal, the United States Court of Appeals for Veterans Claims (CAVC) issued a May 2021 Joint Motion for Partial Remand (JMPR) vacating the service connection denial and remanding the claim back to the Board. Upon receipt of the JMPR, the Board further remanded the matter to the Board in July 2021. Following the issuance of an August 2021 supplemental statement of the case continuing the denial of service connection, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a March 2017 videoconference hearing before the undersigned Veterans Law Judge. Entitlement to Service Connection for a Prostate Disorder The Veteran contends that he has a prostate disorder that is attributable to his service. Specifically, he asserts that his prostate disorder is directly due to his exposure to toxic herbicide agents while serving in the Republic of Vietnam during the Vietnam War Era. He seeks service connection on this basis. To that end, entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic diseases service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Furthermore, certain diseases associated with in-service Agent Orange exposure are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent, including Agent Orange, 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) are met, even though there is no record of such disease during service. The Veteran's service records show that he served in the Republic of Vietnam during the Vietnam Era. The claims file also contains a copy of an internal VA memorandum dated in May 2021 wherein the Veteran's exposure to toxic herbicide agents was conceded due to his history of service within the Republic of Vietnam during the Vietnam War era. Therefore, his exposure to toxic herbicides is presumed. See 38 U.S.C. §§ 1116, 1154. As will be discussed in further detail, the Veteran is not diagnosed with any disability that is subject to the presumptive provisions outlined above. However, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, the question for the Board is whether the Veteran's prostate disorder was incurred in or is otherwise attributable to service, to include as due to the Veteran's conceded exposure to toxic herbicide agents in service. A review of service treatment records reflects that the Veteran underwent a prostate examination in January 1978 following complaints of an ache in his testicles. The impression at the time was probable prostatitis. There are no subsequent medical records reflecting treatment for or a diagnosis of a prostate disorder. A December 1982 surgery report indicates that the Veteran underwent an abdominal wall exploration for an abdominal bulge that he had been experiencing for the past two years; an evaluation at that time did not reveal any abnormalities with his genitalia. This bulge was later identified as a hernia. No prostate issues were listed on medical examinations administered in July 1980, March 1981, and March 1982. Moreover, no prostate issues were noted on the November 1982 Report of Medical History. Following service, an August 1985 outpatient record reflects that the Veteran report experiencing burning urination as well as a penile discharge intermittently. He was diagnosed at that time with prostatitis. A later record dated in 1986 shows that the Veteran was noted to have a history of prostatitis. There are no further records showing continued treatment for symptoms of a prostate disorder until 2003. A September 2004 prostate biopsy showed an enlarged prostate gland with abnormal PSA. However, the report indicates that no complication was visualized. The impression at the time was benign prostatic hypertrophy and abnormal PSA. Subsequent records from Coast Urology Center show continued monitoring of the Veteran's PSA levels, to include multiple biopsies. All evaluations were benign. During an April 2012 urology consultation at his local VA medical center the Veteran complained of occasional burning on urination. An in-person evaluation revealed an enlarged prostate and an abnormal PSA unchanged since the September 2004 biopsy. The impression was BPH and abnormal PSA. Thereafter, more contemporary records show that the Veteran has continued to be followed for BPH through VA without urinary obstruction Pursuant to the Board's July 2021 remand instructions, the Veteran was scheduled for an August 2021 VA urology examination and opinion, during which the examining VA medical professional confirmed diagnoses of resolved prostatitis and BPH based on a review of the entire claims file. The examiner then opined that it was less likely than not that the Veteran had a prostate disorder that incurred in or otherwise attributable to service, to include his exposure to toxic herbicide agents. In support thereof, the examiner noted the history of treatment for symptoms of a prostate disorder and the diagnosis of prostatitis during service but concluded that the condition was not chronic in nature due to the fact that no symptomatology was reported on periodic examinations during service. The examiner also acknowledged that the Veteran was diagnosed with probable prostatitis on a few occasions a few years following service but highlighted that later treatment records do not document any continued treatment for prostatitis. While the examiner did not explicitly specify the January 1978 in-service treatment record documenting a provisional diagnosis of prostatitis, nor did he reference the 1985 finding of prostatitis also cited by the Court, these documents were sufficiently addressed through the references made by the examiner. As for BPH, the August 2021 examiner detailed that the condition was not diagnosed until well after the Veteran turned 40, when it is far more common for men to develop BPH. In the examiner's estimation, the long period of time following the Veteran's discharge and his first diagnosis of the BPH reduced the likelihood that the condition was incurred in service. Finally, with regards to the possible connection between the development of either prostatitis or BPH and exposure to toxic herbicides, the examiner relied on the lack of medical literature demonstrating such a causal connection in finding that it was less likely than not that either condition was attributable to the Veteran's conceded exposure to toxic herbicide agents. As the August 2021 examiner considered the Veteran's medical history and reviewed the claims file, the Board finds his conclusions to be highly probative. Sklar v. Brown, 5 Vet. App.140 (1993). Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a prostate disorder. The Board acknowledges that the Veteran has consistently maintained that he has a prostate disorder that is attributable to his presumed exposure to toxic herbicide agents. The Veteran is competent to report his symptoms, and when those symptoms began to manifest. Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no indication the Veteran is competent through expertise or knowledge to conclude that his currently diagnosed BPH or his history of prostatitis is attributable to his service, to include his exposure to herbicide agents. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). In considering the likelihood that the Veteran has a prostate disorder that is attributable to his service, the Board relies on the highly probative opinion of the August 2021 VA examiner, who found it less likely than not that the Veteran's BPH and history of prostatitis was attributable to service, to include as due to the presumed exposure to toxic herbicide agents in service. The Board finds this probative opinion to far outweigh the Veteran's general assertions with regard to the purported connection between his history of prostate dysfunction and his presumed exposure to toxic herbicide agents, unsupported as those assertions are with no objective medical evidence. Thus, the Board finds that the preponderance of the evidence is against service connection. Although there is documentation of some isolated instances of treatment for prostate symptomatology in service, the Board finds informative the fact that no chronic prostate condition was diagnosed on any of the three examinations administered while the Veteran was in-service prior to his discharge. Furthermore, the Board refers to once again to the highly probative opinion of the August 2021 examiner, who found it less likely than not that the Veteran's BPH was incurred in service or that the Veteran had chronic prostatitis that persisted from service. Accordingly, the preponderance of the evidence is against a determination that the Veteran has a prostate disorder that was incurred in service. 38 C.F.R. § 3.303(a). Furthermore, as there is no documentation of the Veteran having prostatitis within a year of service, service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b) is denied. Moreover, although service connection may be granted for a disability on an indirect basis if it is shown that the condition is nevertheless attributable to service, the Board notes that the lack of continued treatment for prostatitis following the isolated instances of treatment in 1985 and in 1986, and the lack of any treatment for BPH until 2003, is persuasive evidence tending to weigh against such a determination. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Coupled with the highly probative opinion of the August 2021 examiner, the Board concludes that the preponderance of the evidence is also against granting service connection for a prostate disorder as otherwise attributable to service pursuant to 38 C.F.R. § 3.303(d). Gilbert v. Derwinski, 1Vet. App.49 (1990). The claim in total is thus denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.