Citation Nr: 21071723 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-30 200 DATE: December 1, 2021 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for a heart condition is denied. REMANDED Entitlement to service connection for deep vein thrombosis (DVT) and varicose veins is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's prostate cancer is etiologically related to active duty service or his service-connected hearing loss and/or tinnitus. 2. The preponderance of the evidence is against a finding that the Veteran's claimed heart condition is etiologically related to active duty service or his service-connected hearing loss and/or tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1953 to April 1955. This matter originally came before the Board of Veterans' Appeals (Board) from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). These matters were previously before the Board in May 2018, April 2020, October 2020, and August 2021 for additional development and have now returned for further appellate review. Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Further, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish a right to compensation for a present disability, a veteran must show: (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 or aggravated during service. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310 (a). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for prostate cancer The Veteran is seeking service connection for prostate cancer which he contends is etiologically related to active duty service. Specifically, the Veteran asserts that his prostate cancer is related to handling chemicals TNT, nitroglycerine, and white phosphorus while on active duty. Alternatively, the Veteran asserts that his claimed prostate cancer may have been caused or aggravated by the Veteran's service-connected hearing loss or tinnitus, and/or associated medications. A review of VA treatment records demonstrates that the Veteran was diagnosed with prostate cancer in January 2011. Accordingly, the Board finds that he has a present disability for VA purposes. The Board observes that the Veteran's service treatment records (STRs) were destroyed in a fire and are unavailable for review. However, the evidence of record shows that the Veteran's prostate cancer manifested more than 50 years after the Veteran's active duty. The Veteran received VA examinations in January 2020, July 2020, April 2021, and August 2021. The January 2020 and July 2020 examinations were both found to be inadequate in the April and October 2020 Board remands, respectively, and will not be further discussed in this decision. The April 2021 examiner opined that the Veteran's prostate cancer is less likely than not incurred in or caused by chemical exposure during active duty service. By way of rationale, the examiner noted that the Veteran was diagnosed with prostate cancer in 2011 and had exposure to chemicals like TNT, nitroglycerine, and white phosphorus while on active duty, but stated that "review of toxicity profiles for these compounds fails to validate any causal association between exposure and development of prostate cancer." The April 2021 examiner also found that the Veteran's prostate cancer was less likely than not proximately due to, the result of, or aggravated beyond its natural progression by his service-connected hearing loss and/or tinnitus as "current medical literature doesn't validate tinnitus or hearing loss as a risk factor for prostate cancer." Regarding the Veteran's contention that his prostate cancer is etiologically related to his service-connected hearing loss and/or tinnitus, including as due to related medications, the August 2021 VA examiner stated the following: "The conditions of prostate cancer and hearing loss/tinnitus/antibiotic ear drops are not medically related. The prostate cancer is a separate entity entirely from the hearing loss/tinnitus/antibiotic ear drops and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship between the above conditions and prostate CA. Antibiotic ear drops are not used for treatment of hearing loss or tinnitus but for otitis media or ear infection. Nothing in the literature shows antibiotic ear drops cause prostate cancer. As the conditions are entirely unrelated, [a] causal or aggravation nexus has not been established." The Board finds the April 2020 and August 2021 VA examinations to be highly probative for purposes of determining entitlement to service connection for prostate cancer, because they address the Veteran's relevant medical records, theories of entitlement, and relevant medical research. The record does not include competent evidence demonstrating that the Veteran's claimed prostate cancer was incurred in or due to his active duty service, or alternatively etiologically related to his service-connected hearing loss or tinnitus, to include associated medications. The only competent and probative opinions of record are those of the April 2020 and August 2021 VA examiners, which are negative to the Veteran's claims. To the extent that the Veteran asserts that his disabilities were incurred in or due to his active duty service, the Board finds his lay assertions as to the presence of lay observable symptoms (for example, pain) are considered competent evidence. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render etiological opinions, especially in the presence of other possibilities (i.e., post-service occupation, aging, or obesity). Accordingly, his assertions on such matters are not competent evidence because such questions require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for prostate cancer is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a heart condition The Veteran is seeking service connection for a heart condition which he contends is etiologically related to active duty service. Specifically, the Veteran asserts that his claimed heart condition is related to handling chemicals TNT, nitroglycerine, and white phosphorus while on active duty. Alternatively, the Veteran asserts that his claimed heart condition may have been caused or aggravated by the Veteran's service-connected hearing loss or tinnitus, and/or associated medications. A review of the Veteran's VA treatment records reveals that the Veteran is diagnosed with coronary artery disease (CAD), status-post MI, PCI with stents and coronary atherosclerosis. Additionally, private treatment records reveal that the Veteran's heart conditions were first diagnosed in November 1996. Accordingly, the Board finds that the Veteran has a present heart condition for purposes of service connection. As noted above, the Veteran's service treatment records (STRs) were destroyed in a fire and are unavailable for review. However, the evidence of record shows that the Veteran's heart conditions manifested many years after the Veteran's active duty service. The Veteran received VA examinations in January 2020, July 2020, April 2021, and August 2021. The January 2020 and July 2020 examinations were both found to be inadequate in the April 2020 and October 2020 Board remands, respectively, and will not be further discussed in this decision. Upon review of the Veteran's claims file, the April 2021 examiner opined that the "Veteran's CAD, status-post MI, PCI with stents, and aortic sclerosis were less likely than not (less than 50 percent probability) incurred in or caused by the chemical exposure during service." By way of rationale, the examiner stated that the Veteran's heart conditions are "a consequence of pertinent risk factors for heart disease, including strong genetic component" and that the "Veteran's aortic sclerosis is secondary to age related changes and dyslipidemia." Regarding the Veteran's assertion that his condition was caused by chemical exposure, the examiner stated that "review of toxicity profiles for the compounds mentioned by [V]eteran fails to validate any causal association between exposure and development of heart disease." The examiner, similarly found that the Veteran's heart condition is less likely than not (50 percent or greater probability) approximately due to, the result of, or aggravated beyond its natural progression by the Veteran's service-connected hearing loss and/or tinnitus. Additionally, the August 2021 VA examiner found that the Veteran's claimed heart conditions are less likely than not proximately due to, the result of, or aggravated beyond its natural progression by the Veteran's service-connected hearing loss or tinnitus. By way of rationale, the examiner stated the following: The "claimed heart conditions and hearing loss/tinnitus/antibiotic ear drops are not medically related. The claimed heart conditions are a separate entity entirely from the hearing loss/tinnitus/antibiotic ear drops and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship between the above SC conditions and claimed heart conditions. Antibiotic ear drops are not used for treatment of hearing loss or tinnitus but for otitis media or ear infection. Nothing in the literature shows antibiotic ear drops cause the claimed heart conditions. As the conditions are entirely unrelated, [a] causal or aggravation nexus has not been established." The Board finds the April 2020 and August 2021 VA examinations to be highly probative for purposes of determining entitlement to service connection for a heart condition, because they address the Veteran's relevant medical records, theories of entitlement, and relevant medical research. The record does not include competent evidence demonstrating that the Veteran's claimed heart conditions were incurred in or due to his active duty service, or alternatively etiologically related to his service-connected hearing loss or tinnitus, to include associated medications. The only competent and probative opinions of record are those of the April 2020 and August 2021 VA examiners, which are negative to the Veteran's claims. To the extent that the Veteran asserts that his disabilities were incurred in or due to his active duty service, the Board finds his lay assertions as to the presence of lay observable symptoms (for example, pain) are considered competent evidence. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render etiological opinions, especially in the presence of other possibilities (i.e., post-service occupation, aging, or obesity). Accordingly, his assertions on such matters are not competent evidence because such questions require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for a heart condition is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for deep vein thrombosis (DVT) and varicose veins is remanded. While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim can be decided. Initially, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the August 2021 Board remand, the Veteran received a VA examination regarding the nature and etiology of his claimed DVT and varicose veins. The examiner was directed to specifically address the Veteran's statements of itching feet and cracked heels since service (see January 20, 2011 VA medical center primary care record) as well as his sister's statement of swelling, blisters, and bleeding sores between the toes while in service (see statement received in August 2012). However, in formulating the medical opinion, the examiner wholly failed to discuss the Veteran's reported symptomatology. Accordingly, the medical opinion is inadequate for determining entitlement to service connection for DVT and varicose veins. Thus, the matter is remanded for a new examination. The matter is REMANDED for the following action: Afford the Veteran an examination with a physician of appropriate expertise regarding whether the Veteran's DVT and/or varicose veins are at least as likely as not related to service, including white phosphorus exposure. In making this determination, the clinician must address the Veteran's statements of itching feet and cracked heels since service (see January 20, 2011 VA medical center primary care record) as well as his sister's statement of swelling, blisters, and bleeding sores between the toes while in service (see statement received in August 2012). Additionally, the examiner should state an opinion regarding whether DVT and/or varicose veins are at least as likely as not proximately due to or aggravated beyond their natural progression by medications for service-connected hearing loss and/or tinnitus. The Board notes use of antibiotic ear drops reflected in the file; the examiner should clearly identify any medications used for treatment of hearing loss and/or tinnitus. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. If an opinion cannot be given without resorting to mere speculation than the VA examiner must state so and further provide a reason for such conclusion. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.