Citation Nr: 21007299 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 10-10 621 DATE: February 9, 2021 ORDER Entitlement to service connection for benign prostatic hypertrophy (BPH), to include as secondary to herbicide exposure, is denied. FINDING OF FACT The Veteran has not been diagnosed with prostate cancer; his current prostate disorder has not been shown to be related to active service, to include as due to exposure to herbicides while serving in Vietnam. CONCLUSION OF LAW The criteria for service connection for BPH, secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.120, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to June 1970. These appeals arose to the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, from a September 2011 rating decision. In May 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the record. In August 2014, June 2016, and February 2018, the Board remanded these matters for further evidentiary development. In an October 2018 rating decision, the RO granted the Veteran service connection for diabetes mellitus, type two. As that issue has been granted in full, it is no longer on appeal. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2019). Here, the Veteran has argued he was exposed to herbicides in service, and the RO made several attempts to verify such exposure before ultimately conceding such exposure. Since the Veteran’s herbicide exposure has been conceded, neither the Veteran nor his representative have raised any further issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes the Veteran’s service treatment records have been found to be unavailable. In its August 2014 remand, the Board directed the RO to search for these records, and in any case to notify the Veteran of the unavailability of the records, in the event they could not be found. Thereafter, the RO undertook efforts to locate the Veteran’s service treatment records, which were ultimately unsuccessful. The RO then notified the Veteran of the unavailability of his service treatment records, and of the efforts taken to locate them, in an August 2015 letter. The Veteran has not alleged that he experienced prostate issues in service that would be documented in these missing records. Rather, his arguments regarding missing service records revolved around VA’s reluctance to concede his exposure to herbicide agents—an issue which, as noted, has been resolved in his favor. The Board finds VA’s duties to notify and assist the Veteran have been satisfied. Entitlement to service connection for BPH, to include as secondary to herbicide exposure The Veteran contends he is entitled to service connection for a prostate disorder, diagnosed as BPH. He claims this disorder is related to his exposure to herbicide agents in Vietnam, which has been conceded by VA. For the following reasons, the Board finds service connection is not warranted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, may 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. 38 C.F.R. §§ 3.307(d), 3.309(e). In this case, the RO has conceded the Veteran was exposed to herbicides while serving aboard the USS Cunningham, which traveled in waters deemed eligible for consideration under the presumption of 38 U.S.C. § 1116 as defined in the Blue Water Navy Vietnam Veteran Act of 2019, Public Law 116-23. However, the Veteran has never been diagnosed with prostate cancer, and therefore a presumptive link to such herbicide exposure is not warranted in this case. The Veteran’s VA medical records and his lay statements and testimony reflect he was first treated for an enlarged prostate and elevated PSA levels in the late 2000s and underwent a biopsy which was negative for prostate cancer. The Veteran then underwent a prostatectomy in 2011. Subsequent medical records reveal no further treatment or indication of prostate cancer. In April 2020, the Veteran was seen for an episode of hematuria and dysuria. A cystoscopy was unremarkable aside from small inflammatory changes and his symptoms resolved. A July 2020 clinical record includes an examiner’s comment that if gross hematuria were to recur, this would require a full work-up; however, no further episodes have been documented. The Veteran underwent a VA Compensation and Pension (C&P) examination in December 2011 which noted a diagnosis of BPH. He underwent another C&P examination in November 2017, which appeared to note an earlier diagnosis of prostate cancer. However, on closer inspection, the report indicates the Veteran was actually diagnosed with BPH; the report confirms the above history—namely, the Veteran suffered an enlarged prostate in the 2000s, received a biopsy that was negative for malignancy, and underwent a prostatectomy in 2011. The examiner noted “some biopsies can miss the detection” of prostate cancer, which appeared to explain why the Veteran underwent the prostatectomy despite the negative biopsy. The examiner clearly stated, “To reiterate, there was NO DIAGNOSIS of prostate CA.” The examiner further opined the Veteran’s prostate disorder was less likely than not directly related to service, to include herbicide exposure. The examiner explained this opinion was based on a “thorough C-file review, review of all available medical records and current peer reviewed medical literature.” The examiner noted the Veteran’s diagnosis, BPH, was “exceptionally common” in his age demographic and was “a part of the normal course of aging.” The Board acknowledges the Veteran’s service as a Blue Water Veteran and his resulting exposure to herbicides in service. However, BPH is not among the listed conditions that have been presumptively linked to exposure to herbicides in service. As a result, service connection on a presumptive basis is not warranted. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. (The Board notes if the Veteran were to develop prostate cancer, service connection for that disease, based on his service in or around Vietnam, would most likely be warranted.) While entitlement to service connection is not warranted based on presumptive service connection, entitlement to service connection may still be established with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, however, the Veteran has not alleged, and the record does not reflect, that he developed any issues with his prostate in service, or indeed for many decades thereafter. As noted, the record shows he first developed symptoms of an enlarged prostate in the late 2000s. The Board notes the Veteran’s service treatment records are unavailable. Notwithstanding, the Veteran has never alleged any specific symptoms relating to his prostate began in service. Rather, he has only asserted his prostate symptoms are related to his exposure to herbicides in service; as discussed above, there is no legal or evidentiary basis for this assertion. Moreover, the C&P examiner explained BPH was common for the Veteran’s age demographic and “part of the normal course of aging.” There is no probative evidence calling the examiner’s findings into question. (Continued on the next page)   In sum, the Board finds there is no competent evidence of record indicating a causal relationship between the Veteran’s current prostate disorder, to include BPH, and his conceded herbicide exposure. To the extent the Veteran has contended such, the Veteran is not competent to attribute his current prostate disorder to his in-service herbicide exposure, as this is a complex medical question beyond the competence of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Veteran has not otherwise stated that a competent medical professional has made such attribution. In other words, there are no Jandreau-type exceptions. Finally, there is a highly probative C&P opinion of record which tends to weigh against any contentions in support of service connection. For these reasons, the Board finds the preponderance of the evidence is against the Veteran’s claim that his current prostate disorder is related to service. There is no probative evidence his disorder was manifest during active service, and the Veteran does not have a prostate disorder, such as prostate cancer, that has been linked by VA to herbicide exposure. A persuasive medical opinion has found the Veteran’s disorder is not linked to herbicide exposure; there is no probative evidence contradicting that assessment. As such, the claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.