Citation Nr: 21069295 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-35 688 DATE: November 18, 2021 ORDER Entitlement to service connection for prostate cancer, also claimed as malignant neoplasms of the genitourinary system, is denied. REMANDED Entitlement to service connection for colon cancer, also claimed as malignant neoplasms of the digestive system, exclusive of skin growths, is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a prostate condition at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from June 1971 to June 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held in March 2019 before the undersigned Veterans Law Judge (VLJ) and a copy of the hearing transcript has been added to the record. In a September 2019 decision, the Board remanded these issues for additional development and the matters are again before the Board for adjudication. 1. Entitlement to service connection for prostate cancer, also claimed as malignant neoplasms of the genitourinary system, is denied. The Veteran is seeking service connection for a prostate condition. Specifically, he contends that his prostate condition was caused as a result of radiation exposure in-service while he served in the United States Air Force. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted on a presumptive basis for chronic disabilities, such as sensorineural hearing loss, if such is shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, as an alternative to the nexus requirement, service connection for a chronic disability, such as sensorineural hearing loss, may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). For a showing of continuity of symptomatology, however, the showing must still be made during the period of service or within one year after separation from service. Id. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Following a review of the record in its entirety, the Board finds that there is no competent medical evidence of a current prostate condition for which service connection is available. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Absent a current disability for which entitlement for service connection can be established, the Board finds there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Specifically, service treatment records (STRs), VA treatment records, and private treatment records, do not show a diagnosis of prostate cancer or malignant neoplasms of the genitourinary system. Rather, treatment records from July 2004, February 2010, and June 2014 show that the Veteran has a normal prostate. In addition, in a February 2020 VA examination, following a review of the record, a VA examiner failed to find that the Veteran has ever been diagnosed with prostate cancer. In reaching this determination, the Board has also considered the Veteran's statements that he has a prostate condition and that such condition is due to radiation exposure during service. See March 2019 Statement; November 2004 Statement; see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, as the Veteran in this case is not shown to have medical education or experience, the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition such as this that is medically complex. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (requiring the Board to consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology); Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a lay person is competent to report symptoms that are observable to a layperson, symptoms supporting a later diagnosis by a medical professional, or a contemporaneous medical diagnosis). Here, unfortunately, the record fails to show a diagnosis of prostate condition, by a medical professional, or persistent or recurrent symptoms of a prostate condition, therefore the Veteran's lay assertions cannot constitute evidence upon which service connection can be granted. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a prostate condition. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for colon cancer, also claimed as malignant neoplasms of the digestive system, exclusive of skin growths, is remanded. The Veteran is seeking service connection for colon cancer. Specifically, he contends that his colon condition was caused as a result of radiation exposure in-service while he served in the United States Air Force. The Veteran has provided several lay statements supporting his contention, some of with are unreadable, and added during the March 2019 hearing that explosions near the base where he was stationed exposed him to radiation. See also January 1974 Service Treatment Record (STR) (Veteran tested positive for "very high" radiation exposure.). As noted above, in a September 2019 decision, the Board remanded this issue for additional development. Unfortunately, the requested development has not been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the remand directives, in February 2020, the AOJ obtained a VA medical opinion. In relevant part, the examiner opined that was less likely as not that the Veteran's colon cancer was caused or aggravated to any degree by radiation or other exposures during or as a direct result from his military service. He explained that the available records do not document chemical or radiological exposures during military service. Radiation exposure is a risk factor for most types of cancer, but an exposure to either radiation or other toxic agents during military service has not yet been conceded by VARO at this time for this Veteran. Here, the Board finds this opinion inadequate for adjudicative purposes. Specifically, the VA examiner relied on an inaccurate factual that the Veteran was not exposed to radiation or other toxic agents during service. In reaching this determination, the examiner fails to address the Veteran's competent lay statements regarding an inservice explosion that exposed him to radiation and a January 1974 STR showing that the Veteran tested positive for "very high" radiation exposure. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Bar v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, a remand for another VA opinion is warranted. The matters are REMANDED for the following action: 1. Update the Veteran's electronic claims file with current medical records, to include any VA medical records and private medical records. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed colon condition. The Veteran's claims file, including the hearing transcript and a copy of this remand should be provided to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed colon condition and residuals, had its onset in service, manifested within the first post-service year, or is otherwise related to service due, to include as due to any inservice radiation exposure. In doing so, the examiner shoulder considers the two opinions from private doctors, the lay statements of record, and the January 1974 STR indicating that the Veteran tested positive for "very high" radiation exposure during service. The examiner is reminded that merely stating that the AOJ has not conceded exposure to radiation is not an adequate opinion for purposes of this request. The examiner is also reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. The examiner should provide a well-reasoned rationale supported by the facts as to why the conclusion made was reached. If the examiner is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 3. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.