Citation Nr: 21025376 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-31 443A DATE: April 28, 2021 ORDER Entitlement to service connection for a prostate disability, claimed as the residuals of prostate cancer, is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran’s current prostate disability, the residuals of prostate cancer, is the result of an in-service disease or injury, as well as a finding that his prostate cancer manifest within one year of his separation from service in 2006. CONCLUSION OF LAW The criteria for service connection for a prostate disability, claimed as the residuals of prostate cancer, have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has verified active service from January 1978 to October 1985 in the Army and from December 2004 to December 2005 in the Air Force with additional service in the Army Reserve and the Air Force Reserve, which will be discussed in more detail as relevant below. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran appeared at a hearing before the undersigned in April 2017. A transcript of the hearing is of record. In June 2018, the Board first remanded this matter for additional development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to develop evidence in efforts to determine whether the Veteran had active service from January 2006 to May 2006, as he asserted during his April 2017 hearing before the undersigned, and then obtain a nexus opinion regarding the Veteran’s claim that also addresses whether his prostate cancer manifest within one year of his last separation from active service based on the result of its service verification efforts. The AOJ requested the Veteran’s military pay records in efforts to verify his reports of active service from January 2006 to May 2006, but it ultimately determined these records fail to establish additional active service beyond December 2005, despite pay records confirming the Veteran was continuously receiving active duty pay and allowances from January 2006 to April 2006 with other evidence suggesting this service was in support of Operation Iraqi Freedom. As a result, the AOJ instructed the post-remand, November 2019 examiner to address whether the Veteran’s prostate cancer manifest within one year of December 2005. In September 2020, the Board remanded this matter again for a new opinion addressing whether the Veteran’s prostate cancer manifest within one year of April 2006, finding reasonable doubt should be resolved in the Veteran’s favor with regard to the material issue of whether his full-time service from January 2006 to April 2006, as documented by pay records, constitutes active service. The AOJ obtained the additional opinion in December 2020, as directed, and has now returned this matter to the Board for further appellate consideration. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or caused by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated by inactive duty for training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110. For a member of a Reserve component, ACDUTRA means full-time duty performed by Reserves for training purposes. INACDUTRA means duty (other than full-time) prescribed for Reserves under section 206 of title 37 of the United States Code or any other provision of law. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a presumptive basis for certain chronic disease listed in 38 C.F.R. § 3.309(a), to include malignant tumors, if the disease manifest to a compensable degree within one year of separation from a period of active service of 90 days or more. See 38 U.S.C. § 1112; 38 C.F.R. § 3.307(a)(3). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record establishes the Veteran has a current disability. He was diagnosed as having prostate cancer after a June 2009 biopsy and underwent a prostatectomy in September 2009. His current residuals include urinary incontinence. The only issue that remains is whether there is a nexus to service either on a direct or presumptive basis. As noted in the introduction, the Veteran’s most recent period of fully verified active service is from December 2004 to December 2005. Yet, military pay records indicate the Veteran had additional continuous full-time service from January 2006 through April 2006. The Board notes military pay records show the Veteran had a period of INACDUTRA on December 29th and 30th of 2005 following his initial release from active service in December 2005. Then, he began receiving active duty pay again on a continuous basis from January 2, 2006 through April 1, 2006 with several shorter periods of active duty service throughout the rest of April and then a well-documented period ACDUTRA on May 6th and 7th of 2006. Although it is unclear whether the Veteran was serving on active duty or ACDUTRA during the period from January 2006 through April 2006, the Board resolves reasonable doubt in the his favor in this regard and finds this period of service constitutes active service for the purpose of the presumptive provisions outlined in 38 U.S.C. § 1112. Yet, the Board finds the preponderance of evidence is against a finding that the Veteran’s prostate cancer manifest within one year of his separation from service in 2006. As previously noted, the Board remanded the Veteran’s appeal in December 2020 to obtain an expert opinion regarding this material issue. The examiner who provided the post-remand, December 2020 opinion explained the Veteran’s medical records do not support a finding that his prostate cancer manifest at any point in 2007. The examiner noted the Veteran was not diagnosed as having prostate cancer until 2009, well outside the one-year presumptive period. The examiner acknowledged the Veteran’s diagnosis of prostatitis shortly after his separation from active service, but she explained prostatitis is not known to be a precursor for prostate cancer and cited medical literature to support her conclusion in this regard. The December 2020 examiner’s opinion is also consistent with the opinion of previous examiner who provided an opinion regarding the Veteran’s claim in November 2019 but was asked to address whether the Veteran’s prostate cancer manifest within one year of his period of verified active service from December 2004 to December 2005. The November 2019 examiner explained there is no evidence of a rapidly rising prostate-specific antigen (PSA) or an abnormal prostate examination until June 2009. The November 2019 examiner acknowledged the Veteran’s elevated PSA level shortly after his separation from active service but explained there are a number of causes that can result in an elevated PSA, to include prostatitis, the diagnosed condition for which the Veteran was referred to a specialist for at that time, which, as previously noted, the December 2020 examiner explained is not known to be a precursor for prostate cancer. The Board has no doubt the Veteran sincerely believes his prostate cancer is related to the prostate issues that manifest shortly after his separation from active service, but he does not have the requisite training or medical expertise to address this type of complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The only competent evidence regarding this material issue weighs against a finding that the Veteran’s elevated PSA and diagnosed prostatitis was an early manifestation of prostate cancer. As a result, the preponderance of evidence is against a finding that the Veteran’s prostate cancer manifest within one year his separation from service in 2006; therefore, the chronic disease presumption of 38 U.S.C. § 1112 is not for application in this case. The preponderance of evidence is also against a finding that the Veteran’s current prostate disability is otherwise the result an in-service disease or injury. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (explaining the inapplicability of a presumptive provision does not foreclose the possibility of service connection on a direct basis). The November 2019 examiner considered an accurate factual history in this regard to include the Veteran’s lay report that he was told he had an enlarged prostate at the time of his March 2001 Air Force Reserve enlistment examination and reported the Veteran’s current disability, the residuals of prostate cancer, is less likely than not the result of an in-service disease or injury, explaining there is no evidence suggestive of prostate cancer until June 2009, even with consideration of the Veteran’s lay reports of an enlarged prostate in 2001 and diagnosis of prostatitis and elevated PSA shortly after separation from service. The Board finds the November 2019 examiner’s conclusion probative because prostate cancer and its potential precursors are not within the realm of lay observation and require diagnostic testing. Although the Board requested a second opinion regarding the potential applicability of the chronic disease presumption after reviewing the November 2019 examination report, the Board finds this in no way diminishes the probative value of the November 2019 examiner’s direct service connection nexus opinion, which is why the Board did not deem a second direct service connection nexus opinion necessary at the time of its December 2020 remand. It is clear the November 2019 VA examiner considered an accurate factual history regarding direct service connection and provided a cogent, well-reasoned rationale to support her conclusion that the Veteran’s current prostate disability is not the result of an in-service disease or injury. In sum, the Board finds the preponderance of evidence is against the Veteran’s claim on both a direct and presumptive basis. As noted above, the Veteran was not diagnosed as having prostate cancer until 2009, which is well outside the one-year presumptive period established by 38 U.S.C. § 1112 even when reasonable doubt is resolved in the Veteran’s favor to reach a finding that he separated from active service in 2006. The expert evidence in this case leads only to the conclusion that the Veteran’s prostatitis and elevated PSA shortly after separation from service was not a precursor for prostate cancer. There is no competent evidence of a nexus to an in-service disease or injury because it does not appear the Veteran manifest any prostate-related symptoms until after his separation from active service. As the preponderance of evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply, and service connection for a prostate disability, claimed as the residuals of prostate cancer, must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.