Citation Nr: 21025920 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-27 531A DATE: April 29, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents in service. 2. The preponderance of the evidence shows the Veteran did not have prostate cancer during the period on appeal. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1962 to March 1964 and August 1965 to December 1966. The Veteran died in June 2017. In September 2017, the Veteran’s spouse (Appellant) was substituted as the claimant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this issue in November 2019 for additional development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). These matters are properly before the Board for adjudication. The Appellant withdrew her hearing request in August 2018. As such, the Board finds that the Appellant’s hearing request is withdrawn. Service Connection for Prostate Cancer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24/ Vet. App./ 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board ). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6). The presumption of service connection requires exposure to an herbicidal agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). These diseases include prostate cancer. Service in Vietnam requires that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Additionally, service in the Vietnam can include service in offshore waters and other locations if the conditions of service involved duty or visitation in the Vietnam. During the course of the appeal, the Court decided Gray v. McDonald, 27 Vet. App. 313 (2015) and directed VA to reevaluate its definition of inland waterways, to include whether Da Nang Harbor should be considered in an inland waterway. Subsequently, VA defined offshore waters as the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. The following locations are specifically identified as offshore waters of the Republic of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea: Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and Ganh Rai Bay. Service on inland waterways constitutes service in the Republic of Vietnam. Inland waterways are fresh water rivers, streams, and canals, and similar waterways. VA considers inland waterways to end at their mouth or junction to other offshore water features. Id. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. In its May 2018 Supplemental Statement of the Case, the Agency of Original Jurisdiction (AOJ) noted that the Veteran served on the USS Point Defense. The USS Point Defiance entered Qui Nhon Bay to deliver troops in July 1965; operated on Saigon River during March 1967; conducted several operations on Saigon River to Saigon Port during October and November 1968; and conducted numerous troop and supply landings with small boats at Da Nang, Van Tuong, and Kien Hoa from May 1965 through October 1972. As such, the Veteran is presumed to have been exposed to herbicide agents during active service in Vietnam. The next issue before the Board is whether the Veteran has been diagnosed with prostate cancer at any point during the period on appeal. The Veteran and Appellant provided several reports that a physician at the Atlanta VA medical center diagnosed multiple cancers, including prostate cancer. VA medical records dated August 1, 2012 show the Veteran underwent a PET scan which revealed “intense focal FDG activity within the prostate gland, concerning for malignancy.” The Veteran consulted a urologist on August 13, 2012 who ordered a PSA screen. The treating physician stated that no further testing is recommended if the Veteran’s PSA results are normal. The normal range for PSA levels is 4.0 ng/ml and lower. See September 2020 VA examination. VA medical records show the Veteran’s PSA levels were normal (1.4 ng/mL). A treating physician made a note that the Veteran exhibited no obvious signs of prostate cancer. An August 2013 urology note shows the Veteran and his spouse reported that he was diagnosed with prostate cancer but did not know where this was done nor how it was determined he had cancer. The physician stated that the Veteran’s PET scan showed activities in the prostate, yet “his PSA remains very low,” however. The Veteran consistently exhibited normal PSA levels prior to the claim for service connection and throughout this appeal. See below PSA Levels. PSA Levels April 2000 June 2001 Feb. 2002 May 2002 May 2004 0.8 ng/mL 0.55 ng/mL 0.26 ng/mL 0.56 ng/mL 0.59 ng/mL July 2004 May 2005 Jan. 2006 Jan. 2007 Feb. 2008 0.66 ng/mL 1.49 ng/mL 0.95 ng/mL 0.91 ng/mL 0.72 ng/mL Feb 2010 Aug. 2012 Aug. 2013 July 2014 Nov. 2014 0.65 ng/mL 1.4 ng/mL 0.54 ng/mL 0.84 ng/mL 0.48 ng/mL The Veteran underwent a September 2016 VA examination. The examiner provided conflicting opinions. Initially, the examiner noted that the Veteran has never been diagnosed with prostate cancer. Furthermore, the examiner stated that the Veteran’s records show a history of benign prostatic hyperplasia (BPH), not prostate cancer. The VA examiner noted the following yearly PSA trends: 2012 2013 2014 1.11 ng/mL 1.17 ng/mL 0.84 ng/mL The September 2016 examiner’s opinion, however, stated that the Veteran’s record “does provide supporting documentation for prostate cancer. There is evidence of BPH.” He goes on further to identify tumors noted in the Veteran’s history, including pancreatic neoplasm, malignant bladder cancer with resection surgery, and gastrointestinal stromal tumor. He did not list prostate cancer. A September 2020 VA examiner opined that the Veteran did not have prostate cancer. She noted the Veteran’s history of prostate problems and transurethral resection of the prostate dated back to 1997. The examiner also reviewed the Veteran’s voluminous medical records, including lay statements and a June 2017 autopsy report. She stated that the Veteran’s autopsy report did not show pathology for prostate cancer. Moreover, the examiner stated that prostate cancer and BPH have similar symptoms except that BPH is benign and does not spread. Alternatively, prostate cancer symptoms often don’t start until the cancer has grown large enough to put pressure on the urethra. The examiner noted that normal PSA levels are 4.0 ng/mL or less. She stated that the Veteran’s medical records do not show PSA levels which would indicate prostate cancer. The VA examiner opined it was less likely than not that the Veteran incurred prostate cancer, and it was less likely that any diagnosed prostate disorder had its onset in service or is otherwise related to service. The September 2020 VA examiner’s opinion is highly probative, sufficiently rationalized, supported by the Veteran’s treatment records, and is based on a thorough review of the record. The Board points out that the Veteran’s reports concerning prostate were recorded by treating physicians and investigated through a PET scan and regularly scheduled PSA lab work. Furthermore, the Veteran was diagnosed with BPH in October 2001 which was benign and stable. The Board has considered the private medical opinion submitted by Dr. G.N., M.D. He stated that he reviewed the Veteran’s medical records and found a current diagnosis of prostate cancer which was directly related to military service and exposure to herbicide agents. Dr. G.N. does not address the fact that the Veteran presented normal PSA levels for more than 14 years. Furthermore, this report fails to discuss the Veteran’s diagnosis of BPH or the fact that a 2017 autopsy found no pathology for prostate cancer. Dr. G.N. does not provide any rationale beyond referencing VA treatment records showing the Veteran’s PET scan raised concerns of malignancy. Essentially, Dr. G.N.’s statement consisted of conclusory statements and is not a rationale that is based on sufficient facts and data of this case. The Board may favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds that the September 2020 VA report and the Veteran’s medical treatment records significantly outweigh Dr. G.N.’s report. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). While the Board may assess the credibility and weight given to medical evidence, the Board is not free to substitute its own judgment for such as a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As discussed above, Dr. G.N. does not provide any rationale to support his conclusions. On the other hand, the 2020 VA examiner pointed to specific documents in the record showing the Veteran did not have prostate cancer, including PSA levels, autopsy report, and the Veteran’s BPH diagnosis. The preponderance of the evidence shows the Veteran does not have a current diagnosis of prostate cancer, nor has one been assigned at any time during the period on appeal. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Veteran has not submitted any medical evidence that shows he has had diagnosed prostate cancer during the appellate period or a diagnosis close in time to the appeal period. Although laypersons, such as the Veteran and Appellant, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of complex medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran and Appellant are certainly competent to report that he experienced symptoms related to his genitourinary system, they are not competent to diagnose prostate cancer. The Veteran and Appellant’s assertions are therefore not competent evidence. The Board has considered the Veteran and Appellant’s statements that the Veteran was diagnosed with prostate cancer during his treatment with VA. These reports are not credible due to inconsistency with the evidence of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran’s testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In this regard, and importantly, the Veteran exhibited normal PSA levels and multiple qualified physicians, including urologists and oncologists, determined that the Veteran did not have prostate cancer. Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ([R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.) Here, because there is no diagnosis of prostate cancer, service connection cannot be granted under 38 C.F.R. § 3.307(a)(6) or direct service connection. Brammer, 3 Vet. App. 223. The competent evidence is against a finding of prostate cancer at any time relevant to the appeal period. See McClain, 21 Vet. App. at 321; Romanowsky, 26 Vet. App. 289. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. 49. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.