Citation Nr: 1754133	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-14 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a liver condition, to include residuals of infectious hepatitis and hyperbilirubinemia.

2.  Entitlement to service connection for a liver condition, to include residuals of infectious hepatitis and hyperbilirubinemia.

3.  Entitlement to service connection for a prostate condition. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Riordan, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from September 1965 to August 1971, to include service in the Republic of Vietnam. 

The Veteran's appeal comes before the Board of Veteran's Appeals (Board) from June 2012 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 

The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2017.  A transcript of that hearing is of record.   


FINDINGS OF FACT

1.  Evidence associated with the claims file since February 1972 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a liver condition, to include residuals of infectious hepatitis and hyperbilirubinemia.

2.  The Veteran served in the Republic of Vietnam, and therefore was exposed to herbicide agents. 

3.  The preponderance of the evidence of record shows that the Veteran's liver condition is related to service.

4.  The Veteran's prostate condition did not manifest in service; any current prostate condition is not etiologically related to his active service.   


CONCLUSIONS OF LAW

1.  Evidence received since the February 1972 rating decision that denied service connection for a liver condition, to include residuals of infectious hepatitis and hyperbilirubinemia, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103 (2017).

2.  The Veteran's liver condition was incurred in service.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).

3.  The criteria for service connection for a prostate condition have not been met.  38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA's duty to notify was satisfied by April 2012, January 2013, and April 2015 letters.  38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Service treatment records are associated with the claims file.  All post-service treatment records identified by the Veteran have also been obtained by the VA.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C §§ 5103, 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the veteran.

New and Material Evidence 

In February 1972, the RO denied the Veteran's claim for service connection for a liver condition on the basis that a December 1971 examination indicated the Veteran did not have a current diagnosis of a liver condition.  He did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation.  See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  Accordingly, the February 1972 rating decision became final.  38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103.

The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b) (West 2014); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions).  However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence.  See 38 U.S.C. § 5108 (West 2014).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed."  Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply.  Duran v. Brown, 7 Vet. App. 216, 220 (1994).

At present, the Veteran has submitted numerous medical records and physician opinions to indicate he currently has a diagnosis of a liver condition.  Specifically,  at his May 2017 Board hearing, the Veteran submitted two physician opinions discussing his current liver condition and the high likelihood of its relation to his active service.  Presuming the credibility of this evidence, this evidence is new and material.  

Reopening of the Veteran's claim for service connection for a liver condition based on the receipt of new and material evidence is therefore warranted.  Shade v. Shinseki, 24 Vet. App. 110, 121 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening").

Service Connection for a Liver Condition

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

The Veteran claims entitlement to service connection for a liver condition.  Specifically, the Veteran asserts his liver condition is the result of Agent Orange exposure during his service in the Republic of Vietnam.  The Board acknowledges that the Veteran's VA and private treatment records indicate the Veteran has a current liver condition.  
  
At his May 2017 Board hearing, the Veteran submitted letters from two private treating physicians.  Each letter stated the Veteran has a current liver condition, which began after his exposure to Agent Orange, for which the he is seeking treatment.  Each letter further indicated it was more likely than not that the Veteran's current liver condition was caused by or incurred in his period of active service.  The letters specifically identified the Veteran's exposure to Agent Orange in the Republic of Vietnam as the most likely catalyst for the Veteran's current liver condition.  There is no probative evidence to the contrary.  

In light of the above discussed evidence, the Board finds the preponderance of the evidence of record is in favor of the Veteran's claim.  Accordingly, entitlement to service connection for a liver condition is warranted.  See 38 C.F.R. § 3.303. 

Service Connection for Prostate Condition

The Veteran has claimed entitlement to service connection for a prostate condition.  Specifically, the Veteran asserts his prostate condition is the result of Agent Orange exposure during service in the Republic of Vietnam.  A review of the Veteran's VA treatment records indicate the Veteran was diagnosed with elevated prostate-specific antigen (PSA) levels in 2009, an inflamed and enlarged prostate, increased urinary urgency, and benign prostate hypertrophy (BPH).  The Board acknowledges the Veteran has a current diagnosis of a prostate condition.  The Veteran tested negative for prostate cancer in June 2016 and November 2012. 

A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  See 38 U.S.C. § 1116(f) (West 2014); 38 C.F.R. § 3.307 (a)(6)(iii).  The Veteran's DD-214 and May 2017 testimony indicate the Veteran served in the Republic of Vietnam during the above stated period.  

VA regulations provide that the following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma.  38 C.F.R. § 3.309(e).  Notably, the Veteran's diagnoses of elvated PSA levels, inflamed prostate, increased urinary frequency, and BPH are not diseases covered by 38 C.F.R. § 3.309(e).  Acordingly, presumptive service connection for the Veteran's prostate disability is not warranted.   

Although service connection for a prostate condition may not be granted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042   (Fed. Cir. 1994).

The Veteran does not claim nor does the record indicate that he exhibited any symptoms of a prostate condition while in service.  The Veteran's August 1971 discharge physical notes that the Veteran did not have frequent or painful urination, rectal disease, or any form of tumor, growth, cyst, or cancer.  

When a disability is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service.  38 C.F.R. § 3.303(d).

In his May 2017 testimony, the Veteran stated he began experiencing symptoms of a prostate condition approximately "10, maybe 10, 15 years ago."   While not dispositive of the issue, the Board may consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

The probative evidence of record does not establish that the Veteran's current prostate condition is related to his active service.  The record is silent of any nexus statement from a medical physician relating the Veteran's prostate condition to his active service.  In May 2017, the Veteran testified that VA treatment providers informed him that his prostate condition was a natural result of his age, and that his own private medical providers have researched his prostate condition but have been unable to identify a connection to his active service or exposure to Agent Orange.   

The Veteran asserts through lay testimony that his current prostate condition is related to his active duty service.  While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., increased urinary urgency or frequency; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011).  

With regard to the specific issue in this case, whether his current prostate condition is related to his active duty service, falls outside the realm of knowledge of the Veteran in this case.  See Jandreau, 492 F .3d at 1377 n.4.  Determining the etiology of the Veteran's prostate condition requires medical inquiry into internal biological and anatomical processes.  Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have the expertise, training or skills needed to make such a determination.  Although competent to describe his symptoms, he is not competent to determine the cause of his current disability.  As a result, the probative value of his lay assertions is low.  

Finally, there is no other competent, credible, and probative medical or lay evidence or opinion of record to support the Veteran's assertion that his currently diagnosed prostate condition is etiologically related to his active service.  

The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran's prostate condition.  The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted.


ORDER

New and material evidence having been received, the claim for service connection for a liver condition, to include residuals of infectious hepatitis and hyperbilirubinemia is reopened.

 Entitlement to service connection for a liver condition, to include residuals of infectious hepatitis and hyperbilirubinemia is granted. 

Entitlement to service connection for a prostate condition is denied. 



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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