Citation Nr: 21029323 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-46 800 DATE: May 13, 2021 ORDER Entitlement to service connection for a prostate disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran has not been diagnosed with prostate cancer. 2. The Veteran's elevated prostate-specific antigen (PSA) is a laboratory finding and not a disease, disability, or injury for which applicable law permits compensation or service connection. 3. There is no probative evidence of record that the Veteran's diagnosed prostate hypertrophy began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's tinnitus began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a prostate disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1968 to December 1970. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in March 2020. Relevant to the issues decided herein, the remand directed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran's updated VA treatment records; ask the Veteran to identify and authorize release of records from any private treating sources who provided treatment for the disabilities at issue on appeal; and obtain an addendum opinion regarding the Veteran's claimed tinnitus. Pursuant to the March 2020 remand, the AOJ obtained the Veteran's updated VA treatment records; sent the Veteran notices in March 2020 and May 2020 asking him to identify any outstanding private treatment records; and obtained an addendum opinion in September 2020 that provides the information necessary to render a decision as to the issue of entitlement to service connection for tinnitus. Accordingly, the Board finds that VA at least substantially complied with the March 2020 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran identified relevant private treatment regarding his claimed prostate disability at the October 2018 Board hearing. Specifically, the Veteran testified that he was recently treated for the claimed prostate disability and that he expected further treatment in the near future, to include testing to determine whether he had developed prostate cancer. However, the Veteran did not respond to the March 2020 and May 2020 notices asking him to identify and authorize release of those medical treatment records. The May 2020 notice was sent to a newly identified address, and there is no indication that either notice could not be delivered to the Veteran. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. The Veteran must cooperate in VA's efforts to assist him. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000); 38 C.F.R. § 3.159(c). VA satisfied its duty to assist by providing the Veteran opportunities to identify and authorize release of records pertaining to the treatment he discussed at the Board hearing. Therefore, the Board will proceed with appellate consideration of the issue of entitlement to service connection a prostate disability. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 1. Entitlement to service connection for a prostate disability The Veteran contends that he has a prostate disability that is caused by presumed exposure to herbicide agents during his service in the Republic of Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain diseases, to include prostate cancer, may be presumed to have been incurred in service where a veteran was exposed to herbicide agents while on active service, even when there is no evidence of such a disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The medical treatment records show that the Veteran had elevated PSA readings in June and July 2009. In September 2009, he underwent a prostate biopsy, which showed no evidence of prostate cancer. In July 2015, a CT of the abdomen showed hypertrophy of the median lobe of the prostate. The Veteran had further elevated PSA readings, to include in April 2012, and was counseled on the possibility of underlying prostate cancer. However, the evidence of record does not show that the Veteran has been diagnosed with prostate cancer. At the October 2018 Board hearing, the Veteran testified that a recent prostate biopsy "was negative. It was non-cancerous". As noted above, the Veteran did not respond to VA's requests for him to further identify and authorize release of records pertaining to that biopsy. The Veteran's elevated PSAs are not recognized as a disability for VA benefits purposes because they are laboratory findings and not, in and of themselves, disabilities. See 38 U.S.C. § 101(16); 38 C.F.R. § 3.303(c); cf. 61 Fed. Reg. 20,440, 20,445 (1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). Because an elevated PSA is not a "disability" for which VA compensation benefits may be awarded, service connection for elevated PSA is not warranted. Regarding the diagnosed prostate hypertrophy, there is no indication in the Veteran's service treatment records that he had the condition during his active service. The medical treatment records show the Veteran was not diagnosed with that condition until several decades after his separation from active service. Furthermore, although the record shows that the Veteran had service in the Republic of Vietnam in 1970, prostate hypertrophy is not on the list of diseases associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Therefore, his prostate hypertrophy may not be presumed to have been caused by his in-service exposure to herbicide agents. Accordingly, there is no medical evidence showing that the Veteran's prostate hypertrophy had its onset during his active service or soon after his separation from active service, and the condition may not be presumed to be caused by in-service exposure to herbicide agents. The Board acknowledges the Veteran's belief that his diagnosed prostate disability is related to his active service. However, he is not considered competent to provide a nexus opinion regarding this issue because it is medically complex and requires specialized knowledge and expertise the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, his assertions are not probative in establishing a nexus between the current prostate disability and his active service. The Board also acknowledges that an opinion was not obtained as to whether the Veteran's diagnosed prostate hypertrophy may be related to his presumed in-service exposure to herbicide agents. However, the Veteran's has not submitted or identified any competent evidence that his diagnosed prostate hypertrophy may be related to his active service. Although medically competent evidence is not always required to trigger VA's duty to assist by providing a VA examination, a conclusory generalized lay statement suggesting a nexus between a current disability and service does not suffice to meet the standard of 38 C.F.R. § 3.159(c)(4)(i)(B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). In this case, the only evidence that the Veteran's prostate disability may be related to in-service exposure to herbicide agents is the Veteran's own conclusory generalized lay statements. Accordingly, the Board finds that there is no evidence establishing a sufficient indication that the prostate disability may be related to an in-service event, injury, or disease such that VA's duty to assist has been triggered. See also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (whether a claimant suffered an "in-service event, injury, or disease" under the second prong involves "a classic factual assessment, involving the weighing of facts"). In summary, the Veteran's elevated PSA is a laboratory finding and not a disease, disability, or injury for which applicable law permits compensation or service connection. In addition, there is no probative evidence of record that the Veteran has been diagnosed with prostate cancer or that his diagnosed prostate hypertrophy began during active service or is otherwise related to an in-service injury or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a prostate disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran contends that his current tinnitus is due to in-service exposure to noise from the artillery field, helicopters, and training zones. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that although the Veteran has competently reported tinnitus during or in temporal proximity to the claim for service connection and he is credible in his assertions that he was exposed to noise during his active service, the preponderance of the evidence weighs against finding that the Veteran's tinnitus began during his active service or is related to the in-service noise exposure. The service treatment records do not show complaint of or treatment for tinnitus. A November 1970 report of medical examination for release from active duty shows that the Veteran had a normal clinical evaluation of the ears and eardrums. At a VA primary care initial evaluation in May 2009, the Veteran denied chronic tinnitus. At an August 2014 VA audiology consultation, when asked about tinnitus the Veteran stated, "When I first got out of the military, I heard some ringing but I don't notice it now." On that same day in August 2014, the Veteran attended a VA hearing loss and tinnitus examination where he denied any recurrent tinnitus. At the October 2018 Board hearing, he testified that he has tinnitus, but "[n]ot as often as it was. I used to hear ringing like on and on on a general basis. But now ... well lately I have not taken anything" and, "It comes whenever." The September 2020 VA examiner, opined that the Veteran's tinnitus was less likely than not incurred in or caused by the Veteran's in-service exposure to noise. As a rationale for that opinion, the examiner explained that the Veteran has denied tinnitus as recently as during the August 2014 VA examination. There are no indications that the Veteran's 2014 denial of tinnitus was untruthful or otherwise inaccurate. In 2006 the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure. In the Veteran's case, this suggests that if the tinnitus were caused by military noise exposure, it would have its onset during service and/or would be present at the 2014 VA examination. Tinnitus is known to be associated with many conditions outside of noise exposure, and such a delayed onset of tinnitus relative to the dates of the Veteran's military service best suggests an etiology outside of military noise exposure. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that the Veteran's medical history does not show that the reported tinnitus began at the time of the noise exposure or during the Veteran's active service, and medical understanding of noise-induced auditory effects is that they occur immediately following the noise exposure. The Veteran's medical history of tinnitus that had its onset after his active service therefore suggests that the tinnitus was caused by factors other than the in-service noise exposure. The Board acknowledges the Veteran's belief that his current tinnitus is due to in-service noise exposure. However, he is not considered competent to provide a nexus opinion regarding this issue because it is medically complex and requires specialized knowledge and expertise the Veteran has not been shown to possess. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24 Vet. App. 428. Consequently, his assertions are not probative in establishing a nexus between the current tinnitus and his active service, and they do not weigh against the September 2020 VA examiner's probative opinion. In summary, the preponderance of the evidence is against finding that the Veteran's tinnitus began during active service or is otherwise related to an in-service injury or disease, to include in-service noise exposure. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for tinnitus. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The March 2020 Board remand explained that in November 2018 the National Academy of Sciences Institute of Medicine found that there was "sufficient" evidence of an association between herbicide agent exposure and the development of hypertension. The Board instructed the AOJ to obtain an addendum opinion as to the Veteran's claimed hypertension. It specified that the opinion "should discuss the National Academy of Sciences Institute of Medicine's most recent conclusions regarding hypertension and herbicides." In September 2020, a VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by his presumed in-service herbicide agent exposure. However, her rationale for that opinion cites only to a July 2007 news release discussing the Institute of Medicine's finding of limited or suggestive evidence of an association between herbicide agent exposure and the development of hypertension. The opinion does not consider the more recent November 2018 conclusions by the National Academy of Sciences Institute of Medicine, as directed by the March 2020 Board remand. An addendum opinion obtained in October 2020 does not remedy that deficiency. Therefore, the opinions obtained on remand do not substantially complete the March 2020 Board remand directives and are not adequate for decision-making purposes. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Therefore, the issue must be remanded for another opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a left shoulder disability is remanded. 3. Entitlement to service connection for a right shoulder disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for a right hip disability is remanded. 6. Entitlement to service connection for a left knee disability is remanded. 7. Entitlement to service connection for a right knee disability is remanded. The March 2020 Board remand directed the AOJ to schedule the Veteran for an examination to determine the nature and etiology of any condition of the hips, knees, and/or shoulders. The remand specified that the opinion obtained should reflect consideration of the Veteran's contentions that he had hip, knee, and shoulder pain during his active service and that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. In September 2020, a VA examiner diagnosed the Veteran with left shoulder strain, right shoulder osteoarthritis, bilateral hip osteoarthritis, and bilateral knee osteoarthritis, and opined that the disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, as a rationale for that opinion, the examiner merely described the duties of field artillery members and then stated that the service treatment records do not show shoulder, hip, or knee complaints during service. Thus, the examiner essentially found the Veteran's reports of in-service shoulder, knee, and hip pain to be not credible based solely on a lack of contemporaneous medical evidence. In addition, the examiner stated in her rationale for the opinion, "There is no separation exam to review." However, the service treatment records include a November 1970 report of medical examination for release from active duty. Thus, the examiner's opinion is also based on an incomplete review of the record. The opinion is therefore inadequate for decision-making purposes, and the issues must be remanded so that another opinion may be obtained. Barr, 21 Vet. App. 312. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's hypertension is at least as likely as not (50 percent probability or greater) related to his presumed in-service exposure to herbicide agents. In providing this opinion, the clinician must discuss the National Academy of Sciences Institute of Medicine's most recent conclusions regarding hypertension and herbicides. Specifically, the National Academy of Sciences Institute of Medicine's Veterans and Agent Orange: Update 2010, concluded that there is "limited or suggestive" evidence of an association between exposure to herbicide agents and hypertension. However, in November 2018, the National Academy of Sciences moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed shoulder, hip, and/or knee disabilities are at least as likely as not (50 percent probability or greater) related an in-service injury, event, or disease, including in-service running, jumping, and marching and the Veteran's duties as a field artillery cannoneer. The Veteran testified at the October 2018 Board of Veterans' Appeals hearing that his duties as a field artillery cannoneer included transporting ammunition, placing the ammunition in storage bins, and loading the ammunition into artillery during fire missions and that the work was repetitive in nature and involved lifting, carrying, and twisting. The opinion should reflect consideration of the Veteran's contentions that he had hip, knee, and shoulder pain during his active service. In considering those assertions, the examiner must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, the examiner should accept as true the Veteran's assertions unless there are factors in addition to a lack of contemporaneous treatment records that call into question his credibility as to the matter. The examiner must review the record, including the November 1970 report of medical examination for release from active duty. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.