Citation Nr: 21006805 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-34 163 DATE: February 5, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has or had prostate cancer, or residuals thereof, at any time during or approximate to the pendency of his claim for service connection. CONCLUSION OF LAW The criteria to establish service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 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 in the United States Marine Corps from April 1960 until his honorable discharge in April 1965. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for prostate cancer. In September 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 90 days to allow for the submission of additional evidence; however, no additional evidence was added to the record within that time period. During his Board hearing, the Veteran requested to have his case advanced on the docket due to age and medical issues. The undersigned granted his request orally. Therefore, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Although the Veteran asserts that he is entitled to presumptive service connection under VA regulations associated with military personnel at Camp Lejeune between August 1, 1953, and December 31,1987, 38 C.F.R. §§ 3.307, 3.309(f), for the reasons that will be apparent in the following analysis, these regulations are not applicable in this case. Thus, they do not warrant discussion. Analysis As to the first element of service connection, a current disability, the evidence weighs against finding that the Veteran has or had a current disability of prostate cancer at any point approximate to or during the pendency of his claim for service connection. The requirement for a veteran to have a “current disability” is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the Veteran filed his claim for service connection for prostate cancer on November 7, 2016. He testified that he was diagnosed with such in 1996. September 2020 Board Hearing Transcript, at 4. His private medical records competently and credibly indicate that he underwent surgical prostatectomy in 1997 to remove prostate cancer, and he then underwent adjuvant radiation therapy. See November 2002 and January 2005 Henry Ford Health System Medical Documents. According to his then-treating physician, the Veteran’s adjuvant radiation therapy ended in 2001. See November 2002 Henry Ford Health System Medical Document. His then-treating physician recorded that since the Veteran’s surgery and radiation treatment, he has not had prostate issues. See January 2005 Henry Ford Health System Medical Document. On review of the Veteran’s VA medical records from October 2016 through the present, the Board is unable to locate a present diagnosis of prostate cancer. In fact, in all the relevant medical records, the VA medical professionals refer to the Veteran’s prostate cancer as a disability that occurred in the past rather than a present disability. See, e.g., October 2016 VA Endocrinology Consult (describing the Veteran’s “past medical history” to include a “remote history of prostate cancer treated surgically”); October 2017 VA Gastroenterology Consult (describing “past medical history” to include “Hx prostate cancer s/p prostatectomy”); January 2019 VA Discharge Note (describing a “past medical history” of “prostate cancer with prostatectomy”). None of the relevant VA medical records, of which there are many, indicate that the Veteran had a diagnosis of prostate cancer at any point approximate to November 7, 2016, through the present. Moreover, during his September 2020 Board hearing, the Veteran did not testify that he was suffering from prostate cancer on that date. Nor did he indicate that he had prostate cancer as of November 7, 2016, or at any point during the pendency of his claim. Finally, he did not describe any current residuals of prostate cancer, despite the fact that he was informed of the three elements for a successful claim for service connection and that one of those elements was a current disability. Viewing the evidence in its totality, the Board finds that the competent, credible, and probative evidence of record indicates that the Veteran did not have prostate cancer approximate to November 7, 2016, the date he filed his claim, or at any point through the present. In addition, the evidence does not show current compensable residuals of prostate cancer. Therefore, the first element is not satisfied. As the failure to satisfy the first element of the direct-service-connection test is dispositive of the Veteran’s overall claim for service connection, the Board finds it unnecessary to address the remaining elements. Furthermore, in the absence of a current disability, presumptive service connection associated with military personnel who served at Camp Lejeune is not available. See 38 C.F.R. § 3.309(f) (the Veteran must establish that he has one of the listed diseases in order to have a current disability for VA compensation purposes). Accordingly, service connection for prostate cancer is not warranted. Although an examination and medical opinion was not obtained in this case, the Board finds that VA was not under an obligation to provide one. Section 5103A of Title 38 of the United States Code mandates that a medical examination be provided in disability compensation claim cases only when: (1) There is competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) There is evidence establishing that an event, injury, or illness occurred in service or within an applicable presumptive period, or the Veteran has a service-connected disability; and (3) There is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) There is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Each of the elements must be met. (Continued on the next page)   As there is not competent medical evidence that the Veteran had recurrence of prostate cancer or other residual prostate disability approximate to the filing of his claim or during the pendency of his appeal, the first element is not satisfied. Thus, a VA medical examination is not necessary. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2)(A). In addition to his resolved prostate cancer, the Board observes the Veteran’s VA medical records indicate a long list of past and current medical problems including, but not limited to: resolving enteritis, pancreatic cyst, uncontrolled and essential hypertension, hypertensive retinopathy, B-cell chronic lymphocytic leukemia, chronic kidney disease, hypothyroidism, and hyperlipidemia. The Veteran has not asserted nor does the record reasonably indicate that any of these conditions or persistent or recurrent symptoms thereof may be associated with the veteran’s resolved prostate cancer or military service. The Board finds no indication based on the evidence and arguments of record that its duty to obtain a VA examination or a medical opinion is triggered with respect to any of these medical conditions in connection with his current claim. McLendon, 20 Vet. App. at 81; see Wells, 326 F.3d at 1384; see Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt under 38 U.S.C. § 5107(b) is not applicable based on pure speculation or remote possibility). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.