Citation Nr: 21021499 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-44 097A DATE: April 13, 2021 ORDER Entitlement to service connection for prostate cancer, for substitution purposes, is denied. Entitlement to service connection for bladder cancer, for substitution purposes is denied. FINDINGS OF FACT 1. The Veteran’s prostate cancer was not shown in service or for many years thereafter, may not be presumed to result from an incident of service, to include service in the Persian Gulf, and is not otherwise etiologically related to active duty service. 2. There is no evidence of record that shows the Veteran had a diagnosis of bladder cancer prior to his death. CONCLUSIONS OF LAW 1. For substitution purposes, the criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. For substitution purposes, the criteria for service connection for bladder cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S Air Force from May 1977 to May 1997, including service in Southwest Asia. The Veteran died on December [REDACTED], 2014. The appellant is the Veteran’s surviving spouse. In a June 2016 administrative decision, the RO determined that the appellant meets the basic eligibility for substitution in this appeal. This claim comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for cancers of the prostate and bladder. The Board notes that the issue of service connection for prostate cancer was initially denied in August 2006. However, in his September 2013 notice of disagreement the Veteran requested consideration of his claims based on his service in the Persian Gulf; which had not previously been done. The issue of service connection for prostate cancer was then readjudicated, de novo, by the RO. As the Veteran was in fact entitled to a review of his claims under the presumptive provisions of 38 C.F.R.§3.317, the new and material evidence provisions of 38 C.F.R. § 3.156 do not apply and the issue is one for service connection on the merits; as certified by the RO. The Board further notes that pursuant to the Veteran’s December 2014 substantive appeal (Form 9), a Board Hearing was scheduled for August 29, 2017; and notifications of the scheduled hearing were dispatched to the claimant’s current address of record. However, the claimant did not show or otherwise contact VA regarding the hearing. The request for a Board Hearing was thus considered withdrawn. The Board previously remanded this claim in November 2018. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, addendum opinions were provided to determine the nature and etiology of the Veteran’s prostate and bladder cancers. Substitution The Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in the statute, a person eligible for substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title.” 38 U.S.C. § 5121A. The Board notes Reliford v. McDonald, 27 Vet. App. 297 (2015), in which the United States Court of Appeals for Veterans Claims acknowledged VA Fast Letter 10-30 (Aug. 10, 2010), recognizing that it is VA policy to accept a claim for DIC and accrued benefits as a substitution request. See also 38 C.F.R. § 3.1010 (c)(2). As noted above, the Veteran passed away in December 2014. In a June 2016 administrative decision, the RO determined that the appellant meets the basic eligibility for substitution in this appeal. The Board notes that the issues before the Board here have been recharacterized as for substitution purposes. Although it may appear that, because the appellant’s claims are now before the Board, it does not make a difference whether they are adjudicated as accrued benefits claims or as requests for substitution. There is, however, a significant difference. When adjudicating the former, only the evidence of record at the time of the Veteran’s death may be considered as the basis for a determination on the merits of a claim. By contrast, when a properly qualified substitute claimant “continues the pending claim in the footsteps of the veteran” after his or her death, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, remains open for the submission and development of any pertinent, additional evidence. Thus, it is to the appellant’s advantage to have her claims adjudicated as a substitute claimant pursuant to 38 U.S.C. § 5121A, rather than as they were originally adjudicated. In other words, because the appellant is a substitute claimant in this case, the Board will consider all evidence submitted in this case, to include evidence submitted both prior to and after the Veteran’s death. Service Connection Entitlement to service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including prostate cancer, are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3) (2020), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834-81836 (Dec. 29, 2011); Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). 1. Entitlement to service connection for prostate cancer for the purposes of accrued benefits The appellant asserts that service connection is warranted for the Veteran’s diagnosed prostate cancer, to include as due to service in Southwest Asia. In this case, after reviewing all evidence currently of record, the Board determines that service connection for prostate cancer is not warranted. The medical evidence of record shows a diagnosis of prostate cancer in December 2004. The Board notes that the Veteran’s December 2014 death certificate lists prostate cancer as the cause of death. First, service personnel records show that the Veteran served in Southwest Asia from September 1995 to December 1995. Specifically, he served in the Kingdom of Saudi Arabia in support of Operation Desert Shield. The Veteran’s service treatment records show no treatment for, or symptoms of prostate cancer in service or within the presumptive one year after separation in May 1997. Unfortunately, the Veteran’s retirement physical is not of record, however the Veteran was seen for a follow-up after a vasectomy surgery in January 1997 – four months before retirement. Although the scrotum was described as tender and the Veteran complained of pain at the incision site, there was no indication in the treatment notes of symptoms related to prostate cancer. The first signs of the Veteran’s prostate cancer arose in November 2004, when VA treatment notes indicated an enlarged prostate. An ultrasound was performed in December 2004, resulting in a diagnosis of prostate cancer of the right base with no evidence of additional mass in the urinary bladder. During the seven-year gap between active service and a diagnosis, the record does not show signs or symptoms of prostate cancer. Moreover, the Veteran or the appellant have never truly asserted that such symptoms have been present since service. Prostate cancer is also not listed as among those disabilities for which service connection is presumed for veterans with qualifying service in the Southwest Asia theater of operations. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology or the Veteran’s statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between his current disorder and his active duty service. However, there is no indication of a medical nexus between the Veteran's prostate cancer and his service, including service in Southwest Asia. Specifically, the appellant was afforded a VA examination in August 2020. After a review of the file and other pertinent records, the examiner opined that it was less likely than not that the Veteran’s prostate cancer was related to his service, to include in Southwest Asia. The examiner noted that VA does not include prostate cancer as a presumptive condition connected to service in Southwest Asia. In addition, the examiner concluded that his medical records do not support a connection between his prostate condition and military service. The Board notes that this is the only opinion of record. There is no demonstrable nexus between the Veteran's prostate cancer and his active service. The Board notes that the Veteran and the appellant, have asserted that the Veteran's prostate cancer is due to his Persian Gulf service; however, no competent evidence has been presented in support of this theory. Neither the Veteran nor the appellant are qualified to make medical conclusions; thus, these statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id. However, cancer disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the statements therein cannot be accepted as competent medical evidence. In conclusion, service connection for prostate cancer for substitution purposes must be denied, as such a disability did not have its onset during service, is not due to an in-service disease or injury, and did not manifest to a compensable degree within a year of service separation. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Entitlement to service connection for bladder cancer for the purposes of accrued benefits The appellant asserts that service connection is warranted for the Veteran’s bladder cancer. After a review of the evidence, the Board finds that service-connection is not warranted, as there is no diagnosis of bladder cancer in the record. While the appellant contends that service connection should be granted for bladder cancer, there is no competent evidence of record that the Veteran had a diagnosis, or the signs, symptoms, or residuals thereof, of bladder cancer before his death. Specifically, the August 2020 VA examiner, after a review of the medical evidence concluded that the cancer found adjacent to the right base of the bladder was residuals of, or recurrent prostate cancer. The examiner noted that the record showed no diagnosis of bladder cancer prior to his death. In arriving at its conclusion, the Board has also considered the statements made by the appellant and the Veteran establishing the Veteran’s cancer of pelvic area as bladder cancer. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the appellant and the Veteran are not competent to provide testimony regarding a diagnosis of bladder cancer. See Jandreau, 492 F.3d at 1377, n.4. Although they are able to provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that they believe that he had bladder cancer which was caused by or was otherwise etiologically related to service, they are lay persons without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. As there is no competent evidence that would establish the current disability element with regard to the bladder cancer service connection claim, entitlement to service connection cannot be granted on any basis. Brammer v Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there can be no valid claim for service connection "[i]n the absence of proof of a present disability"). In reaching the conclusion stated above, the Board considered the applicability of the benefit-of- the- doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claims. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). By virtue of the foregoing, the Board concludes that service connection, for substitution purposes is not warranted for the claimed bladder cancer. 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. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald