Citation Nr: 21009808 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-22 399 DATE: February 23, 2021 ORDER Service connection for prostate cancer, to include as due to herbicide agent exposure, for substitution purposes is denied. A 10 percent rating based on multiple noncompensable service-connected disabilities for substitution purposes is denied. FINDINGS OF FACT 1. Although the Veteran has conceded exposure to herbicide agents during his active service, he was not diagnosed with prostate cancer during his lifetime. 2. At no point were two or more of the Veteran’s service-connected disabilities awarded noncompensable ratings. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer, to include as due to herbicide agent exposure, for substitution purposes have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.307, 3.309. 2. The criteria for a 10 percent rating based on multiple noncompensable service-connected disabilities for substitution purposes have not been met. 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1971 to November 1974. He died in October 2016. The Appellant is his surviving spouse and she has been substituted as the claimant for the pending appeals. These matters were previously before the Board in March 2020 at which time they were remanded for further evidentiary development. Substantial compliance with the remand requests having been achieved, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). Multiple other issues were also remanded including entitlement to service connection for the cause of the Veteran’s death, diabetes mellitus type II, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the right lower extremity, and entitlement to Dependency and Indemnity Compensation (DIC) benefits. In a June 2020 rating decision and notification letter, the Agency of Original Jurisdiction (AOJ) granted those claims. This represents a full grant of the benefits sought, and those issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) 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). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, if a veteran was exposed to herbicide agents (e.g., Agent Orange) during active service, presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. Exposure to herbicide agents has been conceded based on the Veteran’s nautical service in the offshore eligible waters of the Republic of Vietnam. 38 U.S.C. § 1116A. The specified diseases for which presumptive service connection due to exposure is warranted includes prostate cancer. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the Veteran’s service treatment records (STRs) do not contain complaints, symptoms, treatment, or diagnosis of prostate cancer. Post-service, following pain and hematuria in July 1999, a private cytoscopy was conducted which revealed normal results. The Veteran had a prostate specific antigen (PSA) level of 0.8. Acute prostatitis was diagnosed, and medication was prescribed. He related to VA clinicians that he was told that he had “prostate cancer.” Clinicians noted that there was no current diagnosis of cancer and that they believed he had been told that he needed to be ruled out for cancer and there was some misunderstanding. In a March 2000 record, he told clinicians that he had been diagnosed with prostate cancer but “then that was changed.” His prostate was within normal limits and his PSA level was normal. A December 2000 VA examination reflected a normal prostate examination. Recurring bouts of prostatitis occurred and in November 2008, an ultrasound was conducted which revealed no cysts, stones, or masses. Clinicians noted that there was no evidence of prostate cancer on a physical examination and PSA test. His current pelvic pain had another source. Repeated PSA tests were subsequently administered with normal results. In an April 2011 record, clinicians stated that the Veteran’s peroneal pain was not his prostate but probably related to chronically uncontrolled diabetes. The Veteran continued to say to clinicians that he had “prostate cancer” but as noted by a March 2014 VA clinician, there were no indications in the record of cancer but instead he had chronic prostatitis. A June 2014 CT of the abdomen revealed prostate enlargement correlated with bladder outlet obstruction. Subsequent records demonstrated PSA levels within normal limits. 1. Service connection for prostate cancer, to include as due to claimed exposure to herbicide agents, for substitution purposes is denied. As noted above, the Veteran has conceded exposure to herbicide agents in service. However, the preponderance of the evidence is against a finding that he had a diagnosis of prostate cancer during his lifetime. Although he stated he had been diagnosed to clinicians, contemporaneous medical records reflected a diagnosis of prostatitis, not prostate cancer. Clinicians refuted his statements regarding cancer in the contemporaneous records. His PSA levels and ultrasound and CT imaging did not demonstrate the presence of malignancy. As such, he did not have prostate cancer. Chronic prostatitis is not one of the medical conditions recognized as a presumptive condition due to herbicide agent exposure. Accordingly, service connection on a presumptive basis is not warranted. As presumptive service connection based on herbicide agent exposure is not available, the evidence must demonstrate proof of direct causation. However, the Veteran’s STRs do not contain any complaints, treatment, symptoms, or diagnosis of chronic prostatitis. The first diagnosis of prostatitis was in 1999, 25 years after service separation. As such, the Board finds that service connection on a direct basis is not warranted. Accordingly, the preponderance of the evidence is against a finding that service connection for prostate cancer, including as due to herbicide agent exposure, is warranted; therefore, the benefit of the doubt rule is not for application. 2. A 10 percent rating based on multiple noncompensable service-connected disabilities is denied. The Board notes that the AOJ did not list a separate finding in the September 2020 Supplemental Statement of the Case regarding the Appellant’s claim to a 10 percent rating based on multiple noncompensable service-connected disabilities. However, the Board may proceed to address the claim as it must be denied as a matter of law. 38 C.F.R. § 3.324 provides that whenever a veteran is suffering with two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. (Continued on the next page)   The Veteran was in receipt of a noncompensable rating for residual scar, left wrist injury, from April 11, 2000. He was next service connected for diabetes mellitus effective April 10, 2001, at 20 percent disabling. Additional disabilities were subsequently awarded compensable ratings. As the Veteran has not been in receipt of two or more separate noncompensable ratings for his service-connected disabilities at any point, a 10 percent rating based on multiple noncompensable service-connected disabilities is not warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.