Citation Nr: 21022234 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-21 994 DATE: April 15, 2021 ORDER Entitlement to service connection for prostatic hyperplasia, to include as due to herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s prostatic hyperplasia began during active service or is otherwise related to an in-service injury or disease, to include his presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for prostatic hyperplasia, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to May 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a July 2017 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Board issued prior remands on this claim in March 2019 and June 2020. Service Connection Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2,4–D; 2,4,5–T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed; prostatic hyperplasia is not included. Id. 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). Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for prostatic hyperplasia to include as due to herbicide exposure. The Veteran initially filed a claim for service connection for a prostate condition as secondary to herbicide exposure in December 2016. Service treatment records show that the Veteran reported recurrent pain in his genitals during active service and underwent a circumcision during his active service. Additional service treatment records note a possible urinary tract infection. Nevertheless, in July 2017, the RO issued a rating decision denying service connection for benign prostatic hyperplasia finding that this condition was not related to herbicide exposure, that the Veteran had not been found to be exposed to herbicides during his active service, and that his service treatment records did not contain complaints or treatment for such during his active service. The Veteran appealed this issue up to the Board. In March 2019 the Board first remanded the claim, finding that due to a recent change in the law the Veteran’s alleged in-service herbicide exposure was now presumed. Therefore, a VA examination for his prostatic hyperplasia as well as an opinion regarding its etiology was warranted. The Veteran was given a VA examination for urinary tract and bladder conditions in December 2019. Here, the examiner diagnosed the Veteran with prostatic hypertrophy, however, the examiner opined that it was less likely than not related to his active service. As rationale for this opinion the examiner provided “There is no evidence of prostate problems in the STR. He was started on tamsulosin for lower urinary tract symptoms in 2017.” The Veteran was given a VA examination for male reproductive system conditions in February 2020 and was diagnosed with erectile dysfunction and benign prostatic hypertrophy. This examiner opined that it was less likely than not that the Veteran’s prostatic conditions were due to his active service, including herbicide exposure. In support of this opinion the examiner provided “The Veteran was not seen for any urinary complaint nor erectile dysfunction while he was in service. He likely suffers from these conditions due to natural disease course and progression, as would be expected for men that are older. This has to do with the natural tendency for the prostate organ to grow in size (hyperplasia) due to reduced testosterone, increased DHT and by relative comparison, increased estrogen (which is responsible for cell growth). For these same hormonal reasons, the Veteran does not experience spontaneous and at-will erections or sufficient libido to engage in sexual activity. There is no documented exposure or treatment to exposure of herbicide that would have caused the Veteran these issues.” In June 2020 the Board again remanded the claim finding that the February 2020 opinion was based on an inaccurate factual premise as the Veteran’s STRs did include discussion of a possible urinary tract infection and an in-service circumcision that was not discussed by the examiner. The Board also found that the examiner did not provide an opinion based on the Veteran’s presumed herbicide exposure and instead relied on the absence of herbicide exposure in making his opinion. Therefore, the RO was instructed to obtain an addendum opinion. In September 2020, an addendum opinion was obtained. The examiner opined that it was less likely than not that the Veteran’s prostatic hyperplasia was related to his active service or presumed herbicide exposure. As rationale he provided “Based on a review of the medical information provided and the medical literature it is my medical opinion that it is less likely than not (>50% probability) that this Veterans prostatic hyperplasia relates to a disease, event, or injury during active duty, to include presumed exposure to herbicides during service near Vietnam in 1966 and his in-service circumcision and possible urinary tract infection. BPH is a noncancerous increase in prostate size that effects >50% of men over 50 and 90% of men over 80 which is primarily due to hormonal changes. The medical literature is clear that urinary tract infections and circumcisions have no role in the development of BPH. Of note the medical literature shows that increased exposure to the herbicides used in Vietnam decrease the chance of developing BPH. Therefore it is less likely than not that this condition relates to a disease, event or injury while in service.” The Board finds this opinion to be well reasoned and consistent with the record, entitling it to significant weight. Neither the Veteran nor his representative has provided any additional evidence in support of this claim for service connection. The record does not contain any positive nexus opinions and the September 2020 opinion has addressed all theories of entitlement. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. The preponderance of the evidence is against the claim. Accordingly, entitlement to service connection for prostatic hyperplasia to include as due to herbicide exposure, is denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.