Citation Nr: 21012848 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-04 938 DATE: March 5, 2021 ORDER Service connection for a prostate disorder is denied.   FINDING OF FACT The Veteran does not have a prostate disorder that had its onset during active service or is causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria for service connection for a prostate disorder are not met. 38 U.S.C. §§ 1110, 1116, 1131, 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 from June 1963 to June 1965. The case is on appeal from a May 2015 rating decision. In May 2017, the Veteran testified at a Board hearing. In a January 2020 decision, the Board granted service connection for coronary artery disease, diabetes, and bilateral lower extremity neuropathies and remanded service connection for hypertension. Thereafter, in an October 2020 rating decision, the RO granted service connection for hypertension effective June 23, 2010. As the hypertension claim has been granted in full, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In October 2020 and November 2020, additional private treatment records were associated with the file. The Veteran’s representative waived initial RO consideration of the additional evidence in February 2021. See 38 C.F.R. § 20.1305(c). 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 for a prostate disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For veterans exposed to an herbicide agent, such as Agent Orange, during active service, certain diseases, including prostate cancer, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Factual History The Veteran contends that he has prostatitis that had its onset during service. In a March 2010 correspondence, the Veteran reported being diagnosed with prostatitis during service in March 1965. During the May 2017 Board hearing, he stated that an April 2015 examination for this claim was inadequate because it was performed by a pain therapist instead of someone with more expertise. In a July 2020 statement, the Veteran stated that April 2015 and April 2020 examiners for this claim did not perform physical examinations. He also stated that the examiners did not have access to his private medical records. He further stated that his current problem is the same one he experienced during service. The Veteran reported that he asked his private urologist, Dr. Torrey, if his prostate condition could be related to herbicide exposure and that Dr. Torrey stated that he did not know. The Veteran’s service treatment records (STRs) show that he was treated for blood in his urine in March 1965. An examination noted that his prostate was within normal limits. Nothing relevant was noted or reported during his June 1965 separation examination. The Veteran’s post-service VA treatment records include an examination performed at a facility in Long Beach, California. In August 1976, a VA physician noted a cytoscopy showed mild to moderate purulent material at the prostatic orifice consistent with prostatitis. The Veteran was afforded an examination in regard to this claim in April 2015. The Veteran reported experiencing the onset of prostatitis symptoms in 1965 that was diagnosed during service and has worsened over the last 50 years. He was examined by a doctor of physiatry. The examiner reviewed the Veteran’s claims file, including private prostate treatment records. She reported a diagnosis of chronic prostatitis, quiescent, with recurrent urinary tract infections, and denied the presence of prostate cancer. She stated that he was diagnosed with benign prostatic enlargement in April 1999, with no prostatitis noted. She also stated that he was treated for a recurrent prostate infection in November 2009 with no onset date noted. The examiner found that the Veteran’s prostatitis is less likely than not related to an in-service injury, event, or illness. The examiner explained that prostatitis is a bacterial infection of the prostate gland that is treated with antibiotics and prostatic massage. She also explained that benign prostatitic enlargement is a nonmalignant enlargement of the prostate gland unrelated to any bacterial infection of the gland. The examiner concluded that there is no correlation between benign prostatic enlargement and prostatitis and that the current prostatitis is not related to the prostate condition during service. The Veteran’s private treatment records include September 2016 treatment by his urologist, Dr. Torrey. Dr. Torrey noted a history of prostatitis and that it was asymptomatic. Dr. Torrey noted that the Veteran asked him to submit a form to VA in regard to service connection for his multiple episodes of prostatitis over the years. He reported that prostatitis can be treated and come back, but that it does not mean that it is service related. He also reported that people have influenza intermittently that is not service related. Pursuant to a May 2018 Board remand, the Veteran was afforded a VA examination in regard to this claim in April 2019. The Veteran reported experiencing recurrent prostatitis and also indicated that he has benign prostatic hyperplasia (BPH) caused by prostatitis. The examiner reviewed the Veteran’s claims file, including all associated private treatment records, and relevant medical research. She reported diagnoses of BPH since 1999 and prostatitis that was last treated in January 2015. She denied the presence of prostate cancer. The examiner found that the Veteran is not currently diagnosed with prostatitis, which is a separate unrelated diagnosis from BPH. She explained that prostatitis is an inflammatory condition of the prostate that is usually resolved with a short course of antibiotics and BPH is the enlargement of the prostate and is very common in men of advancing age. She also found that the evidence does not indicate that the Veteran had ongoing prostatitis since service, but rather has experienced recurrent prostate infections. The examiner related recurrent urinary tract infections to the Veteran’s current obesity, which was not present during service, and BPH. She also explained that BPH is age related and a nearly universal development in men that, as it progresses, may result in upper and lower tract infections. The examiner concluded that it is less likely than not that the Veteran has a prostate condition that was incurred in or caused by an in-service injury, event, or illness. The April 2019 examiner provided an addendum opinion in September 2020. She reported that the most significant risk factor for BPH is age and that the Veteran’s disease appears to be part of the aging process. She concluded that it is less likely than not that the Veteran’s BPH had its onset during service or is otherwise related to prostatitis during service. In addition, in September 2020, the RO conceded that the Veteran is presumed to have been exposed to herbicide during service. In an October statement, the Veteran reported being treated at a VA facility in Long Beach, California in July 1976. Thereafter, in October 2020, the RO found that all of the Veteran’s 1976 VA treatment records from Long Beach, California were already in the file and requested a search for records of treatment at the VA facility in Loma Linda, California from prior to November 2009. The RO also obtained additional private treatment records. The records include treatment for BPH in February 2019. In November 2020, the RO found that there are no treatment records for the Veteran at the Loma Linda, California VA facility prior to November 2009. Analysis The Board finds that the Veteran does not have a prostate disorder that had its onset during active service or is related to any disease, injury, or incident during service. In this regard, the April 2015 and April 2019 VA examiners’ opinions, when taken together, are clear and unequivocal and are based on the relevant information, including the Veteran’s statements, STRs, post-service records, and relevant medical research. Moreover, their explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiners explained that the Veteran has been diagnosed with prostatitis and BPH and that such disorders are not related to his in-service symptoms. In this regard, the examiners explained that prostatitis is an inflammatory condition of the prostate that is usually resolved with a short course of antibiotics. Their findings are supported by the Veteran’s urologist, Dr. Torrey, who reported in a treatment record that prostatitis can be resolved and then reoccur without the reoccurrence being related to the original condition. The VA examiners also explained why they found that BPH is a separate condition unrelated to the Veteran’s prostate symptoms during service. Therefore, the examiners’ findings that it is less likely than not that the Veteran has a prostate disorder related to service is highly persuasive and probative evidence. The Board notes that the Veteran has raised the issue of whether he has a prostate condition related to herbicide exposure. The Veteran was exposed to herbicide during service and prostate cancer is presumptively related to such exposure. See 38 C.F.R. § 3.309. However, the Veteran has not claimed and the evidence does not show that he has ever been diagnosed with prostate cancer. While a medical opinion has not been obtained in regard to whether his diagnosed prostatitis or BPH is related to herbicide exposure, a mere conclusory claim that a current condition is related to service is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a VA opinion is not warranted in regard to this aspect of the Veteran’s claim. The Veteran believes that he has prostate disorder that is related to service. However, this is a complex medical questions outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. As a lay person, the Veteran has not established the competence needed to rebut the expert medical opinions of record. See Fountain v. McDonald, 27 Vet. App. 258, 274-75(2015); Monzingo, 26 Vet. App. at 106. As such, the Veteran’s opinion is not adequate to rebut the examiners’ opinions as to the etiology of the claimed condition, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between service and a current prostate disorder. The Board also notes that the Veteran has stated that the April 2015 examiner was is not competent to provide findings because she is a pain therapist. He also stated that April 2015 and April 2020 examiners for this claim did not perform physical examinations. However, in the absence of a specific allegation outlining why a specific examiner is not competent to conduct a medical examination or provide a medical opinion, the VA examiners’ findings in this case are found to be correct and sufficient for deciding the claim. To the extent that the Veteran claims that he was not examined by either examiner, the Board finds it that it is more likely that he is mistaken as to the extent of examination required to address the relevant medical questions than that two different medical professionals lied about adequately performing their duties. Accordingly, the preponderance of the evidence is against the claim. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for a prostate disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.