Citation Nr: 21027055 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-31 748 DATE: May 4, 2021 ORDER Entitlement to service connection for a prostate disability, to include as due to herbicide exposure, is denied. FINDING OF FACT The Veteran's prostate disability was not incurred in service, and it is not etiologically related to herbicide agent exposure or any other in-service cause. CONCLUSION OF LAW A prostate disability was not incurred in or aggravated by active service and the incurrence or aggravation of a prostate disability during active service may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from November 1965 to November 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously before the Board in July 2019, at which time the Board remanded the instant claim along with a claim for service connection of an acquired psychiatric disability. As the claim for service connection of an acquired psychiatric disability was granted by the agency of original jurisdiction (AOJ) on remand, there is no longer an issue in controversy concerning that claim. As such, that issue is not presently before the Board. Service Connection Prostate Disability The Veteran has asserted that he has a prostate condition related to his active duty service. As the Veteran's records demonstrate that he honorably served in the Republic of Vietnam during the requisite period, he is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii). However, there is no evidence that he has been diagnosed with prostate cancer, which is the only prostate disability listed under 38 C.F.R. § 3.309(e). He does not argue otherwise. Thus, there is no basis to grant presumptive service connection in this case. The Veteran's record also demonstrates that he served for a period of greater than thirty (30) days at Camp Lejeune, the Marine Corps Base in Lejeune, NC. However, a prostate disability is not among the presumed diseases noted for service connection, accordingly, service connection on a presumptive basis pursuant to 38 C.F.R. § 3.309(f) is not warranted. Treatment records and examination reports confirm the Veteran's diagnoses for benign prostatic hyperplasia (BPH), as well as acute and chronic prostatitis. Accordingly, the Veteran has established a present disability of the prostate, which may be considered for service connection on a direct basis. Service treatment records (STRs) are silent for any treatment or diagnosis of a prostate disability while the Veteran was in active service. At his November 1967 separation examination, the Veteran denied prostate issues and did not report any urinary issues. VA treatment records establish that the Veteran was diagnosed with the current disabilities in 2000 based upon multiple urinary tract infections, a left renal calculus, along with prostate and bladder biopsies, which were negative for cancer. Additional biopsies were obtained in August 2015, which continued to show abnormalities of inflammation; the biopsies were negative for malignancy. In March 2020, the Veteran was afforded a VA examination. Upon review of the Veteran's records and an in-person examination, the above-noted disabilities were confirmed by the examiner. The Veteran reported experiencing 3-4 occurrences of urinary/ prostate infections per year since his date of diagnosis, which are treated with antibiotics. His symptoms include increased urinary frequency, slow and weakened stream, and burning and dysuria with infections. The March 2020 VA examiner opined that it is less likely than not the Veteran's prostate disability is due to his active service or herbicide exposure. The examiner explained, There is no current medical literature that supports a link between prostatitis and herbicide exposure. Studies have shown a link between herbicide exposure and the risk of developing prostate cancer (Chamie et al. Cancer 2008 Nov 1 113((0: 2464-70)). However, this Veteran had biopsies of both his prostate and bladder in 2015 that were negative for malignancy. The pathology did reveal acute and chronic prostatitis. In addition, the Veteran has Benign Prostatic Hypertrophy (BPH) and this was noted per physical examinations, via cystoscopy and on a CT of the abdomen in 2015. An ultrasound in 2018 revealed an enlarged prostate that creates mass effect on the bladder base. Although the records available do not document clinical symptoms or treatment specifically for prostatitis, the Veteran has had multiple and recurrent urinary tract infections throughout the years. He has also had a large staghorn kidney stone on the left requiring surgical removal in 2016. He has had recent treatment for Urinary tract infections in 2018, 2019 and 2020. The Veteran's BPH coupled with his history of kidney stone are risk factors for both urinary tract infections and prostatitis. Chronic dysfunctional voiding secondary to BPH is a common cause of both inflammatory and noninflammatory chronic prostatitis. Chronic bacterial prostatitis in turn often produces few or no symptoms related to the prostate but it is probably the most common cause of relapsing UTI in men, primarily E. Coli infections which this Veteran has had. Thus, this Veteran's chronic prostatitis and recurrent urinary tract infections are at least as likely as not related to his BPH that is well documented in the medical records and per physical examinations. (Chung SE, et. al. A case-control study of chronic prostatitis/chronic pelvic pain syndrome and colorectal cancer. BJU Int 2010 Feb 7; Foxman Epidemiology of urinary tract infections: Incidence, Morbidity, and Economic costs. Am J Med. 2002 Jul 8. 113 Suppl 5S-13S). The Board finds that the VA medical opinion is the most probative evidence of record. The examiner considered the Veteran's alleged in-service injury of herbicide exposure as a possible cause; however, as the Veteran's diagnosed disabilities are not conditions which are subject to presumptive service connection as due to herbicide exposure, service connection may not be presumed. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, as there is no other identified or documented in-service injury or causal connection between the Veteran's active duty service and his present disabilities, service connection on a direct basis is also not established. The Board has carefully considered the contentions of the Veteran that his claimed prostate disability was due to his military service. To this end, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, March 2020 VA medical opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a prostate disability is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.