Citation Nr: 21041345 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-57 709 DATE: July 8, 2021 ORDER Entitlement to service connection for a prostate disorder (also claimed as enlarged prostate with irregular tissue on bladder wall), to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The evidence demonstrates that the Veteran's prostate disorder did not manifested during active service and is not shown to otherwise be related to active service, to include his exposure to herbicide agents therein. CONCLUSION OF LAW The criteria for service connection for a prostate disorder (also claimed as enlarged prostate with irregular tissue on bladder wall), to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from February 1970 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision. In a December 2018 decision, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). In addition to the Veteran's service connection claim for a prostate disorder, the December 2018 decision remanded his service connection claim for an acquired psychiatric disorder. During the pendency of the remand, a July 2020 rating decision granted entitlement to service connection for posttraumatic stress disorder (PTSD) (previously claimed as chronic adjustment disorder). The grant of service connection for this disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that issue is no longer before the Board. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The diseases associated with herbicide agent exposure for purposes of the presumption include prostate cancer. 38 C.F.R. § 3.309(e). During the pendency of the appeal, the National Defense Authorization Act for Fiscal Year 2021 (NDAA) went into effect on January 1, 2021. Pub. L. No. 116-283. The NDAA amended 38 U.S.C. § 1116(a)(2) to include, in pertinent part, bladder cancer among the list of diseases eligible for presumptive service connection based on herbicide agent exposure for veterans who served in the Republic of Vietnam during the Vietnam Era. Notwithstanding the foregoing, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran contends that he as a prostate disorder that is the result of his exposure to herbicide agents during active service. See July 2016 Statement. The Veteran noted that he was in Bien Hoa, Vietnam in 1970. See March 2016 Claim. The Board notes that the Veteran's DD 214 documents that the Veteran's period of active duty service included service in the Republic of Vietnam from July 17, 1970 to July 15, 1971. Consequently, his in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to a prostate disorder. No relevant abnormalities were noted in the June 1969 pre-induction examination, and the report included a stamp reflecting that no disqualifying defects or communicable diseases were found during a subsequent physical inspection in February 1970. In addition, the Veteran did not report a history of any relevant problems in the June 1969 Report of Medical History. There continued to be no pertinent findings or complaints in the September 1971 separation examination and Report of Medical History. On April 6, 2015, a VA treatment record noted that the Veteran sought to establish care at VA. He reported a past medical history of a prostate specific antigen (PSA) of 10 in 2011, but he stated that the biopsy was negative. Regarding his genitourinary system, the record noted that he had a history of elevated PSA, and he declined assistance from VA as he received private urology care. On March 11, 2016, a private treatment record noted that the Veteran had blood in his urine. The record indicated that he should seek care from VA, to include blood tests, urine tests, an ultrasound, and urologic follow-up. Possible etiologies were noted to include an infection, stone, small growth, and "other." A corresponding March 11, 2016 VA treatment record stated that the Veteran complained of having blood in his urine that day. The Veteran thought he had passed a kidney stone, but he denied a history of this issue. He was assessed to have hematuria, and a plan was made to obtain a urinalysis, urine culture, and urine for cytology. A consultation was placed for an ultrasound of the Veteran's kidneys and bladder. A March 16, 2016 letter to the Veteran in his VA treatment records regarding his laboratory results stated that the Veteran's PSA, a screening test for prostate cancer, was very significantly elevated and needed further evaluation by a urologist. Although the urine culture showed no infection, some slightly atypical cells were seen that also required further evaluation by a urologist. In a March 22, 2016 statement, the Veteran's representative noted that the Veteran had a potential cancer diagnosis and indicated that he would know if it was an actual diagnosis by the end of the week. On March 30, 2016, a VA treatment record noted that the Veteran had a private prostate biopsy 6 years ago for a PSA of 14, and no neoplasia was found. The record indicated that there had been no follow-up since that time in terms of a digital rectal examination (DRE) or PSA findings. The Veteran had recent dark, visible hematuria that was now pink. The diagnosis was hematuria and elevated PSA. An April 14, 2016 letter to the Veteran noted that a paper copy of his results from an April 6, 2016 CT scan of the abdomen and pelvis performed at VA had been received. The letter explained that one of the findings was an enlarged prostate with irregular soft tissue on the bladder wall. The provider stated that at this time, it was unclear what the "irregular soft tissue" represented, but bladder cancer should be considered. The provider advised the Veteran to discuss this finding with Dr. L. at his urology appointment on April 19, 2016. A subsequent April 19, 2016 letter to the Veteran from the office of Dr. L., who the letterhead indicated practiced in general urology, indicated that the Veteran had a surgery with Dr. L. scheduled for May 18, 2016. A private discharge summary for the period from May 18, 2016 to May 19, 2016 noted that the Veteran's principal diagnosis was prostate polyp with urinary obstruction, and his diagnosis included bladder stone, benign enlargement of the prostate. During this period, Dr. L. performed a laser lithotripsy of the bladder stone on May 18, 2016. The Veteran's admission diagnosis was benign prostatic hypertrophy and bladder stone. In a May 20, 2016 private treatment record, the diagnoses were retention of urine and kidney failure. Separate May 20, 2016 private discharge instructions indicated that the Veteran would need to use a urinary catheter until the following week. He had an acute kidney injury that was likely from urinary retention, but it was anticipated that the kidney would return to normal now that the pressure in the bladder had been relieved. On May 26, 2016, a private treatment record stated that the Veteran's diagnosis was retention of urine. Another private discharge summary for the period from June 8, 2016 to June 9, 2016 noted that the Veteran's principal diagnosis was prostate polyp with urinary obstruction. His diagnosis also included enlarged prostate with lower urinary tract symptoms. The record stated that the Veteran underwent a cystoscopy transurethral resection of the prostate (TURP) with Dr. L. on June 8, 2016. His admission diagnosis was benign prostatic hypertrophy with lower urinary tract symptoms. The results from pathology were pending. On June 19, 2016, a private treatment record stated that the Veteran's diagnoses were retention or urine and infection or inflammation of the bladder. On July 27, 2016; September 5, 2017; and September 8, 2018; VA treatment records noted that the Veteran had hematuria, adding that he had a bladder stone causing hematuria. The record also stated that he had a prostate surgery performed by Dr. L., noting that it had been a TURP in May 2016. The Veteran was currently doing well. Regarding his genitourinary system, the July 2016 and September 2017 records stated that the Veteran was doing well on medication privately, and he declined assistance from VA. The September 2017 and September 2018 records noted that he received treatment for his genitourinary system from Dr. L. The Veteran was afforded a VA examination in connection with his claim in November 2019. The examiner noted that the Veteran did not now have, and had never been diagnosed with, prostate cancer. The examiner noted that the Veteran instead had benign prostatic hypertrophy that was diagnosed approximately four years ago. The examiner explained that the disorder was observed in the context of a rising PSA, and the Veteran consequently had several biopsies that were all benign. He also had a TURP in May 2016. As the Veteran's prostate was quite enlarged and his PSA was found to be elevated again, he was seen by urology with new biopsies in July and August of 2019. However, these biopsies were also benign. The Veteran was currently taking tamsulosin and dutasteride, and he was to follow up with urology in April. Under the section of the examination report related to significant diagnostic test results, the examiner noted the specific findings from the April 6, 2016 CT scan of the pelvis performed at VA. Similar to the information relayed in the April 14, 2016 letter, the findings noted an enlarged prostate gland with irregular margins anteriorly that resulted in mass effect upon, and were inseparable from, the posterior bladder wall. Although this could reflect a mass effect from the prostate gland, an invasion into the urinary bladder from a prostate neoplasm could not be excluded. Given the appearance, less likely considerations would include a primary posterior bladder wall neoplasm. However, clinical correlation and direct visualization with cystoscopy was recommended for further evaluation. In a separate medical opinion, the examiner again noted that the Veteran had no history of prostate cancer, as demonstrated with multiple sets of biopsies performed over time. He did have moderate to severe benign prostatic hypertrophy, and he underwent a TURP to remove the tissue in 2016. Although a CT scan of the pelvis performed in 2018 showed an irregular appearance of the prostate, this appearance, including juxtaposition against the bladder wall, did not represent a neoplasm. It might represent adhesion of the prostate to the external aspect of the bladder wall. Therefore, at this time, it was less likely than not that the Veteran had prostate cancer. The Board notes that although the examiner referred to the CT scan of the pelvis as being conducted in 2018, it is clear from the section of the report in which the results were documented that the examiner understood that the CT scan was from April 2016. The Board also notes that while the examiner stated under the medical history that the TURP was conducted in May 2016 rather than the June 2016 date noted in the records, this error is harmless as it is only approximately one month prior to the actual date of the surgery. This opinion is highly probative as the examiner provided a complete rationale that reflects a consideration of the Veteran's relevant medical history and current clinical findings. The Board further finds that this opinion determining that there was no neoplasm in relation to the bladder wall clarifies that the irregular soft tissue on the bladder wall discussed in the April 2016 records was not representative of bladder cancer. In addition, there is no other record showing a diagnosis of prostate or bladder cancer to contradict the examiner's conclusion. Moreover, the record reflects that the Veteran is not contending that he has cancer related to his claim. After the representative's March 22, 2016 statement that referenced the possibility of cancer, the Veteran indicated in a July 2016 statement that although he previously had been informed that he had possible cancer and was undergoing testing when he filed his service connection claim in March 2016, subsequent results from testing showed no signs of cancer. The July 2016 statement instead reflects that the Veteran was contending that he had an enlarged prostate that was related to his herbicide agent exposure. The Veteran later stated again in his November 2016 VA Form 9 that he had an enlarged prostate, but no cancer had been detected. The Board notes that the Veteran's diagnosed benign prostatic hypertrophy is not one of the listed diseases that is presumptively associated with exposure to herbicide agents. However, service connection for the disorder may still be established as directly related to the established herbicide agent exposure. Regarding this diagnosis, the examination report included the Board's December 2018 remand instruction to opine as to whether any diagnosed disorder other than prostate cancer had its onset in or is otherwise related to service, to include the Veteran's in-service exposure to herbicide agents; and the report indicates that the examiner provided a negative nexus opinion in response to this directive. The examiner explained that the disorder was a benign condition, and it had not been linked to Agent Orange exposure. In fact, dioxin generally limited the growth of the prostate gland, which was the reverse of the effect that was seen with benign prostatic hypertrophy. Therefore, given the current evidence, it was less likely than not that the Veteran's prostate condition was related to service. To the extent that the rationale did not specifically address whether the disorder had its onset in service or is related to an event apart from herbicide agent exposure, the examiner did note under the Veteran's medical history section of the report that the disorder was diagnosed approximately four years prior the November 2019 VA examination. In addition, neither the Veteran nor the record has suggested that his benign prostatic hypertrophy manifested during active service or is related to any in-service event, disease, or injury apart from the theory of herbicide agent exposure raised by the Veteran. The Board additionally finds that the examiner's conclusion provides probative value when it is considered as a whole and in the context of the record as it addresses the medical issues in this case and was based on an analysis of the evidence and current medical understanding. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion); see also Acevedo v. Shinseki, 25 Vet. App. 289, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). Although the Board acknowledges the Veteran contention that his prostate disorder is directly related to his exposure to herbicide agents, the Board finds that the Veteran is not competent as a layperson to determine the etiology of his prostate disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The etiology of his current prostate disorder falls outside the realm of common knowledge of a layperson as it involves a complex medical question that is not capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation for this issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As such, the Veteran's statements on this matter lack probative value. In light of the above discussion, the Board finds that the weight of the evidence is against finding that the Veteran's current prostate disorder manifested during active service or is otherwise related to active service, to include his exposure to herbicide agents. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable based on these facts. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, service connection is not warranted for a prostate disorder (also claimed as enlarged prostate with irregular tissue on bladder wall), to include as due to exposure to herbicide agents during service. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.