Citation Nr: 22012118 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-24 642 DATE: March 2, 2022 ORDER Entitlement to service connection for prostate hypertrophy, to include as secondary to service-connected transitional cell carcinoma (claimed as bladder cancer) with calculus, is denied. FINDING OF FACT The persuasive evidence is against finding that the Veteran's prostate hypertrophy was due to or aggravated by his service-connected transitional cell carcinoma. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate hypertrophy, to include as secondary to service-connected transitional cell carcinoma with calculus, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to September 1968. This matter was most recently before the Board in November 2021, where it was remanded for additional development. The Board determined that the Veteran should be afforded an addendum opinion as to whether his prostate hypertrophy is secondary to his service- connected bladder cancer. Such development has been completed and the matter returned to the Board for appellate consideration. The Board finds that the VA examiner provided an adequate rationale for the conclusion reached, and satisfies the Board's prior remand directives. Entitlement to service connection for prostate hypertrophy, to include as secondary to service-connected transitional cell carcinoma (claimed as bladder cancer) with calculus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic disabilities (including arthritis) may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a specified time after service (which is one year for arthritis). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A disease diagnosed after discharge may still be service connected if the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In certain instances, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Compare 38 C.F.R. § 3.159(a)(1) versus (a)(2). Service connection is also warranted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection there must be evidence: (1) of a current disability (for which secondary service connection is sought); (2) of an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, _ F4th_, 2021 U.S. App. LEXIS 37307, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The Board notes that the Veteran's entitlement to service connection for prostate cancer was severed effective March 1, 2021 in accordance with 38 C.F.R. § 3.105(d). Therefore, the Board's adjudication will consider only entitlement to secondary service connection. See 38 C.F.R. § 3.310. Turning to the evidence, the Veteran reported symptoms of urinary frequency, approximately 5 to 6 times per day. See May 2015 and October 2015 Private Treatment Records. In a May 2016 private treatment record, the Veteran's treating physician noted that his Bacillus Calmette-Guerin (BCG) induction went well and that there were "no new issues." See also February 2016, March 2016, and September 2016 Private Treatment Records. Review of the Veteran's medication used for BCG treatment was "BCG (Tice Strain) 50 mg vial 1 kit Intravesically" and no noted complications were reported. Additionally, there were no noted adverse effects to the listed medications in his medical records. In a November 2016 follow-up for benign prostatic hyperplasia (BPH) treatment and bladder cancer, the Veteran reported having trouble urinating. The Veteran's February 2017 BCG treatments were "well-tolerated and without complications." See also March 2017, August 2017, September 2017, and October 2017 Private Treatment Records. In a December 2017 cystoscopy, the procedure was "well-tolerated and without complications." According to his April and March 2018 private treatment records, the Veteran was seen for BCG treatments, which were "tolerated without any complications." In a June 2018 private treatment record, the Veteran's office cystoscopy showed a small erythematous lesion and his urine was sent to cytology. His cytopathology report for voided urine revealed "atypical urothelial cells of uncertain significance." Additionally, his Urine FISH analysis findings were negative. In a July 2021 VA medical opinion, the examiner opined that the Veteran's prostate hypertrophy is less likely than not proximately due to or the result of the Veteran's service connected transitional cell carcinoma. The examiner reasoned the following: The conditions of prostate hypertrophy and transitional cell carcinoma (claimed as bladder cancer) with calculus, left ureter, status post, are not medically related. The prostate hypertrophy is a separate entity entirely from the transitional cell carcinoma (claimed as bladder cancer) with calculus, left ureter, status post, and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. In an August 2021 addendum opinion, the examiner opined that it is less likely than not the Veteran's benign prostatic hypertrophy was aggravated by service-connected bladder cancer. The examiner stated there was no evidence in his medical records to support aggravation due to medical treatment, procedures, therapy, and/or medications for service-connected bladder cancer. While the examiner conceded that "urinary frequency, urgency and burning with urination are potential side effects of BCG treatment, there is no medical literature supporting that this treatment or the presence of ureteral calculus with ureteral lithotomy physiologically/anatomically aggravates or worsens benign prostatic hypertrophy beyond its natural progression." In a December 2021 addendum opinion, the examiner opined that it is less likely than not the Veteran's benign prostatic hypertrophy was aggravated by service-connected bladder cancer. The examiner reasoned the following: Bladder cancer is not an established primary etiology of benign prostatic hypertrophy in the medical literature. The condition represents an exceedingly common condition which often occurs without a specific predisposing etiology. In a December 2021 addendum opinion, the examiner opined that it is less likely than not the Veteran's prostate hypertrophy was aggravated by service-connected bladder cancer. The examiner reasoned that the Veteran's symptoms to include, nocturia two times per night and daytime urination frequency every two to three hours, falls within the projected natural progression of the condition and does not represent aggravation "beyond its natural progression." Upon review of the foregoing evidence, the Board finds that the persuasive evidence of record is against a finding that the Veteran's prostate hypertrophy was proximately due to and/or aggravated by his service-connected transitional cell carcinoma, to include any additional functional impairment, such as bladder cancer treatments and medications used for his service-connected transitional cell carcinoma. In making this determination, the Board gives more probative weight to the combined July 2021, August 2021, and December 2021 VA opinions. The Board finds that taken together, these opinions are persuasive, as they rely on expert knowledge, medical literature, and the Veteran's medical history. In addition, they are consistent with the private medical records that do not report any complications associated with BCG treatments, BPH treatments, and cystoscopies. Lastly, there is no probative and competent medical opinion contrary to the VA opinions' conclusions. The Board acknowledges that in the November 2021 remand, the opinions that were asked to the medical examiner slightly differed in wording from the May 2021 remand directives. However, the Board finds that any error in not using the exact language of the May 2021 remand directive is not prejudicial to the Veteran and that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 168 (1998). In both the May 2021 and November 2021 remand directives, the examiner was asked to address the secondary opinion based on aggravation. For the reasons discussed above, the VA opinions have shown that there is no incremental increase in his prostate hypertrophy disability, regardless of its permanence, due to the service-connected transitional cell carcinoma. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The Board recognizes the Veteran's belief that his prostate hypertrophy is secondary to service-connected transitional cell carcinoma. While competent to report the Veteran's symptoms, the Veteran, as a lay person, is not competent to opine as to the etiology of the Veteran's prostate hypertrophy. The issue is medically complex, requiring medical training and knowledge of anatomical relationships and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Therefore, the Board affords such statements minimal probative value, which are greatly outweighed by the VA examiners who provided an opinion based upon review of the claims folder in light of their medical training and expertise. The Board further notes that the Veteran is no longer service-connected for transitional cell carcinoma effective March 1, 2021. Thus, there is no longer an underlying disability to support secondary service connection. Based on the competent and probative evidence of record, the Veteran's prostate hypertrophy was neither caused nor aggravated by (to include any additional functional impairment) his service-connected transitional cell carcinoma. Therefore, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, the persuasive evidence is strongly against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.