Citation Nr: 1760261
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-07 394A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1. Entitlement to service connection for benign prostatic hypertrophy.

2. Entitlement to an effective date, earlier than December 10, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD).

REPRESENTATION

Kenneth LaVan, Esq.

ATTORNEY FOR THE BOARD

K. M. Georgiev, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1968 to July 1970.

This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating decision of the Decatur, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran failed to appear to his May 2017 Board hearing. The Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(d).

The Veteran’s representative requested to withdraw from representation in May 2015, without giving good cause. The appeal was certified to the Board in December 2014. As the request was made after certification, without providing good cause, the request is denied. See 38 C.F.R. § 20.608.

FINDINGS OF FACT

1. In July 2008, the Board denied the service connection claim for PTSD, and the Veteran did not appeal the decision.

2. The RO received a new claim of service connection for PTSD signed December 9, 2010.

3. In an August 2011 rating decision, the RO granted entitlement to service connection for PTSD with a 100 percent rating effective December 10, 2010.

4. The preponderance of the evidence is against finding that the Veteran has a prostate disability that is etiologically related to a disease, injury, or event which occurred in service.

CONCLUSIONS OF LAW

1. The criteria for an effective date of July 13, 2010, but no earlier, for the grant of service connection for PTSD, have been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.400 (2017).

2. The criteria for service connection for a prostate disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA’s Duties to Notify and Assist

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). See January 2011 VCAA letter complies with the requirements.

The Board also concludes VA’s duty to assist has been satisfied. The Veteran’s service treatment records (STR) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). In this case, the Board concludes that a VA examination is not necessary for the prostate disability claim on appeal. As will be discussed in greater detail below, the Board believes that there is no competent evidence suggesting an association between the Veteran’s benign prostatic hypertrophy and his active service. There is likewise no competent evidence of continuity of symptomatology from service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with the claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria for Service Connection

Pertinent VA law and regulations provide that 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 (2012); 38 C.F.R. § 3.303 (2017). Generally, this requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d).

Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.
38 U.S.C. § 5107(b) (2012).

Service Connection for Prostate Disability

The Veteran’s VA treatment records from 2004 to 2014 note longstanding prostatic hypertrophy, benign. However, there is no evidence, including lay statements, suggesting a link between the prostate condition and service. The first sign of any diagnosis as to the prostate is decades post-service.

The Veteran has not submitted statements indicating any theory of entitlement as to the prostate disorder. To the extent that the Veteran attributes the prostate condition to active service, the Board notes that lay people are generally not competent to diagnose the cause of an illness or establish a causal connection. The Veteran has not been shown to be competent, by experience or training, to provide medical conclusions, especially as to complex medical diagnoses and opinions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).

As the Veteran has service in Vietnam, to the extent that the Veteran contends that his prostate condition is attributed to Agent Orange, the Board notes that while prostate cancer is a presumptive disease associated with exposure to certain herbicide agents as listed in 38 C.F.R. § 3.309 (e), there is no indication that the Veteran has diagnosis of prostate cancer. Every indication is that the Veteran’s prostate condition is benign. There is otherwise no competent medical evidence of record attributing the Veteran’s prostatic hypertrophy, benign, to herbicides.

The evidence of record does not show that the claimed prostatic hypertrophy, benign was incurred in or caused by military service. As such, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Therefore, service connection for prostatic hypertrophy, benign is denied.

Earlier Effective Date for PTSD

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts but shall not be earlier than the date of the change in the law. 38 U.S.C. § 5110 (g); 38 C.F.R. §§ 3.400 (p), 3.114(a).

Exceptions to the rule that allow for retroactive payments provide that if the claim is reviewed on the initiative of VA or by request of the veteran within one year from the effective date of the law or VA issue, the proper effective date is the same date the change of law went into effect. 38 C.F.R. § 3.114 (a)(1).

In a July 2008 decision, the Board denied service connection for PTSD. The basis for the denial was that the Veteran’s stressors were not corroborated. The Veteran did not appeal the decision.

The regulations regarding service connection for PTSD were changed effective July 13, 2010. This provision was a revision to the PTSD regulations that allowed for relaxed stressor verification underlying a PTSD diagnosis. Specifically, such regulations provided for a stressor based on fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f)(3).

In a claim signed December 9, 2010, the Veteran submitted a new claim for PTSD.

A February 2011 VA examination found the Veteran’s PTSD likely related to fear of hostile military or terrorist activity. An August 2011 rating decision granted service connection for PTSD, at 100 percent, effective December 10, 2010.

By March 2014 statement, the Veteran’s representative stated that the Veteran’s effective date should be July 13, 2010, the date the evidentiary standard for establishing in-service stressors was relaxed.

After reviewing the evidence of record, the Board finds an effective date of July 13, 2010, but no earlier, for service connection of PTSD is warranted. Again, the regulations regarding service connection for PTSD were changed effective July 13, 2010. This provision was a revision to the PTSD regulations that allowed for relaxed stressor verification underlying a PTSD diagnosis. The Court has held that this amendment is “liberalizing.” Ervin v. Shinseki, 24 Vet. App. 318, 319-20 (2011). The RO based the Veteran’s grant of service connection for PTSD on this regulation. Therefore, according to 38 C.F.R. § 3.114 (a)(1), the Veteran’s PTSD effective date should be July 13, 2010, (the effective date of the liberalizing law) because the Veteran’s December 9, 2010 PTSD claim was received within one year from the liberalizing law’s effective date.

Benefits may be authorized from the effective date of the liberalizing law, and thus, an effective date earlier than July 13, 2010, is not warranted here. 38 C.F.R. § 3.114 (a)(1). Further, the Veteran does not appear to be requesting an earlier effective date prior to July 13, 2010, based on his representative’s statements. As such, the Board considers this grant a full grant of benefits requested.

In sum, an effective date of July 13, 2010 is warranted. While the Board considers this a full grant based on the representative’s statements, the Board notes as well that a preponderance of the evidence is against an earlier effective date than July 13, 2010 because the claim was previously finally denied by the Board, there was no claim filed prior to December 9, 2010, and the liberalizing provisions prohibit a date earlier than the liberalizing law. Thus, the benefit-of-the-doubt doctrine does not apply and an even earlier effective date than July 13, 2010 is not warranted.

ORDER

An effective date of July 13, 2010, but no earlier, for the award of service connection for PTSD is granted, subject to the applicable regulations concerning the payment of monetary benefits.

Service connection for benign prostatic hypertrophy is denied.

____________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s