Citation Nr: 21069313 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-41 424 DATE: November 18, 2021 ORDER Entitlement to service connection for a benign neoplasm of the prostate is denied. REMANDED Entitlement to service connection for a disability manifesting as an ulcer, indigestion, or an intestinal disorder is remanded. FINDING OF FACT The probative medical evidence indicates the Veteran's benign neoplasm of the prostate is not related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for benign neoplasm of the prostate have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971. These matters come before the Board of Veterans' Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue related to the claim for service connection for a disability manifesting as an ulcer, indigestion, or an intestinal disorder matter was remanded in January 2019 for further development. Regarding the issue of entitlement to service connection for benign neoplasm of the prostate, in February 2020, the Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand (JMPR), which vacated the Board's January 2019 decision not to reopen the prostate neoplasm issue. The matter was remanded to the Board to ensure compliance with the terms of the JMPR. The JMPR pointed out that the Board properly declined to reopen the claim for service connection for prostate cancer based on new and material evidence in the absence of a diagnosis, but failed to explain why the Veteran's diagnosed benign neoplasm of the prostate did not constitute a new and separate claim concerning a prostate condition not subject to the new and material evidence requirement. The issue of entitlement to service connection for benign neoplasm of the prostate was subsequently remanded in July 2020 and October 2020 by the Board for further development. Regarding the claim for service connection for benign neoplasm of the prostate (synonymous with benign prostatic hypertrophy (BPH)), the Board notes that the RO had previously denied a claim for service connection for prostate cancer. The Board finds that the Veteran's claim for benign neoplasm of the prostate is a new and separate claim, as it is a separate diagnosis, and thus, does not require new and material evidence. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Entitlement to service connection for benign neoplasm of the prostate. The Board acknowledges that VA has conceded exposure to herbicides based on the Veteran's duty or visitation (boots on ground) in the Republic of Vietnam. See January 2021 VA Memo. The Board disagrees and finds that the exposure to herbicides should not be conceded as the evidence of record is against a finding that the Veteran had served the Republic of Vietnam. While the DD-214 indicates service in Vietnam from March 1970 to November 1970, the service records clearly show the Veteran was in Hawaii during that time. For example, the Veteran was not awarded any decorations typically awarded to veterans who served in Vietnam, to include the Vietnam Service Medal. Service personnel records show that he participated in no campaigns, that his foreign service was comprised of service in Hawaii from March to November 1970, and that his unit of assignment from March 1970 to December 1970 was with a unit in USARPACHAW, which the Board notes is a common military abbreviation for United States Army Pacific Hawaii. See July 2015 Military Personnel Record. Service treatment records during this timeframe also appear from the Schofield Barracks in Hawaii. See March 1983 STR Medical. The Board acknowledges the Veteran's prior reports that he served and spent time in combat in Vietnam. See September 1990 VA 21-4138 Statement In Support of Claim and November 1990 VA Examination. However, during a Decision Review Officer hearing in March 2012, the Veteran specifically testified that he had no recollection of being in Vietnam during his military service but instead was in Hawaii. See March 2012 Hearing Testimony. Considering the inconsistencies in the record and in the Veteran's statements, the Board does not find the Veteran's prior reports of serving in Vietnam is credible. Therefore, exposure to herbicides is not conceded. Furthermore, benign neoplasm of the prostate is not among the disorders subject to presumptive service connection under 38 C.F.R. § 3.309(e). Accordingly, service connection for the claimed prostate condition as due to in-service herbicide exposure is not warranted. With regard to direct service connection, the service treatment records (STRs) contain no references to benign neoplasm of prostate, urinary problems, or other prostate-related symptoms or diagnoses during military service. The Veteran's May 1969 entrance examination report and July 1971 separation examination report indicated normal clinical evaluations. See May 1995 STR Medical. Although the May 1969 report of medical history noted kidney stone or blood in urine, the reviewing examiner noted that this was prior to service in 1968, when the Veteran had a kidney stone operation. See December 1990 STR Medical Photocopy. There were no urinary problems noted during active service. Instead, in his July 1971 separation report of medical history, the Veteran denied "frequent or painful urination" and reported being in good health. See May 1995 STR Medical. Post-service medical records initially document benign neoplasm of the prostate in 2011. See January 2016 CAPRI. During the May 2021 VA examination, the examiner noted that the Veteran's benign prostatic hypertrophy (BPH), synonymous for benign neoplasm of prostate, was initially diagnosed in 2011. The examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that BPH is not recognized as an Agent Orange condition and considered a benign tumor. The examiner noted that BPH is an age-related benign condition, occurring with increasing age, and did not exist at the time of the Veteran's military service or within a year of his exit examination from the military. The examiner noted it was almost 40 years after his separation from military service before his diagnosis of BPH. The examiner noted that the only urinary complaint in the STRs was for a kidney stone that is completely unrelated to the development of BPH. See May 2021 C&P Exam (2). The preponderance of the evidence is against finding service connection for BPH. There is no evidence of a prostate disorder or related symptoms until over three decades after service. While the absence of medical records alone is insufficient to deny the claim, the probative medical evidence indicates the Veteran's current prostate condition of BPH is age-related. The May 2021 VA opinion is probative because the examiner supported the conclusion with references to current medical literature and detailed discussion. There is no adequate contrary evidence in support of the claim. As the probative medical evidence indicates the Veteran's current condition is not related to service, the "nexus" or causation element of service connection has not been met and this claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a disability manifesting as an ulcer, indigestion, or an intestinal disorder is remanded. A review of the record shows that the Veteran had initially cancelled his prior VA examination related to his claim for a disability manifesting as an ulcer, indigestion, or an intestinal disorder, due to scheduling conflicts in 2019. See December 2019 Exam Request Modification. The Veteran was later rescheduled for another VA examination but was noted as a "no show." See February 2020 Exam Request. However, the Board notes that subsequently there was returned mail that indicated a change of address. See August 2020 Returned Mail and September 2020 Correspondence. Following address verification, the Veteran's address was updated. See September VAF 70-2 Address Verification and September 2020 Correspondence. Under these circumstances, the Board is unable to presume that the Veteran was properly notified of an upcoming examination so as to permit the application of 38 C.F.R. § 3.655(b). See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As such, the Board finds that, in the interests of due process and fairness, the Veteran should be afforded an additional opportunity to undergo a VA examination in connection with this issue on appeal. As such, the Veteran's claim must be remanded to obtain a VA examination and etiological opinion related to his claim for a disability manifesting as an ulcer, indigestion, or an intestinal disorder. That said, in having this examination again rescheduled, the Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is incumbent upon him to cooperate with VA in developing his claim, consistent with the directives discussed below. The Board notes that 38 C.F.R. § 3.655 expressly directs the Board to decide the claim based on the available evidence already of record if the Veteran fails to report for an examination scheduled in response to a claim of entitlement to service connection. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); Olson v. Principi, 3 Vet. App. 480, 482-83 (1992); Turk v. Peake, 21 Vet. App. 565, 568 (2008) (also noting that the Veteran has a duty to cooperate in VA's development of his claim). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed disability manifesting as an ulcer, indigestion, or an intestinal disorder, to include diverticular disease by an examiner with appropriate knowledge and expertise. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Based on a review of the record, the examiner is asked to provide a medical opinion as to the following: (a) Identify any diagnosis of disability manifesting as an ulcer, indigestion, or an intestinal disorder, to include diverticular disease, near or during the period on appeal (i.e., from June 2013). (b) Is any identified disability(ies) manifesting as an ulcer, indigestion, or an intestinal disorder, to include diverticular disease, as least as likely as not related to service? A complete rationale for all opinions is required. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the appeal, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Thereafter, readjudicate the appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.