BVA9503612 DOCKET NO. 92-24 940 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE 1. Entitlement to service connection for chronic prostatitis. 2. Entitlement to service connection for cancer of the prostate as secondary to chronic prostatitis. REPRESENTATION Appellant represented by: A. Glenn Vasser, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Wayne A. Tonkins, Associate Counsel INTRODUCTION The veteran had active service from December 1940 to June 1945. The veteran was originally denied service connection for chronic prostatitis in a November 1984 rating decision from the Little Rock, Arkansas Regional Office (hereinafter RO). In March 1986 the Board of Veterans' Appeals (hereinafter "the Board") remanded the veteran's claim to the RO to obtain additional medical records. In April 1987 the Board remanded the claim to the RO again to obtain medical treatment reports dated from 1965 through 1970. In December 1987 the Board denied the veteran's claim for service connection for chronic prostatitis. The RO's June 1988 rating decision confirmed the previous denial and did not reopen the claim based upon the veteran's failure to submit new and material evidence. In August 1991 new and material evidence was received and the claim was reopened. After a de novo review, the RO confirmed the previous denial in its September 1991 rating decision. The veteran raised the issue of renal carcinoma secondary to his chronic prostatitis in his December 1991 notice of disagreement. In a decision dated in September 1994, the Board remanded this case to the RO to formally consider the issue of service connection for carcinoma of the prostate which the veteran contended could not be disassociated from prostatitis. The RO considered the issue of service connection for cancer of the prostate on a direct and secondary basis. In its September 1994 rating decision the RO determined that carcinoma of the prostate was not shown in service or within one year of separation from service. The RO further determined that based upon medical opinion, there was no correlation between carcinoma of the prostate and prostatitis, thus, the claim was denied. A supplemental statement of the case was issued in September 1994. An appeal of the denial of the veteran's claims was received at the Board in November 1994. As contentions advanced by and on behalf of the veteran are limited to a claim that carcinoma of the prostate developed secondary to prostatitis, the issue on appeal will be limited accordingly. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that service connection is warranted for chronic prostatitis as this disorder was incurred during active military service. He further contends that he was diagnosed and treated for chronic prostatitis in service which persisted until 1988 when the prostate was surgically removed. He also contends that he continues to suffer disability as a result of the chronic prostatitis. The veteran asserts service connection is warranted for carcinoma of the prostate as secondary to chronic prostatitis. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that the veterans claim to service connect prostatitis is not well grounded. It is also the decision of the board that the preponderance of the evidence is against the claim for service connection for cancer of the prostate. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Chronic prostatitis is documented during service, although the veterans prostate was surgically removed in 1988. 3. A claim to service connect prostatitis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 4. An etiological relationship between the veteran's carcinoma of the prostate and his chronic prostatitis has not been established. CONCLUSIONS OF LAW 1. The claim for service connection for prostatitis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Cancer of the prostate was not proximately due to or the result of the veteran's chronic prostatitis. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so , whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that all relevant facts have been properly developed. Accordingly, an additional remand in order to allow for development of the record is not necessary. I. Chronic prostatitis The veteran advances that he incurred chronic prostatitis during active military service. Service connection may be granted for a chronic disability arising from disease or injury incurred in or aggravated by wartime military service. 38 U.S.C.A. § § 1110 (West 1991). For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). The veteran's service medical records were destroyed in the 1979 fire at the VA record storage facility in Saint Louis, Missouri. A report from the Office of the Surgeon General showed the veteran was hospitalized in March 1945 and diagnosed as suffering from chronic prostatitis. The Army & Navy General Hospital, Hot Springs, Arkansas record of hospitalization showed the veteran was diagnosed and treated for prostatitis, chronic, moderate in March 1950. Treatment notes from Dr. Jack Grindle showed treatment of the veteran for prostate problems from August 1965 to August 1984. A letter from Glenn G. Hairston, M.D., dated in August 1984, contained a statement that he faintly recalled doing a prostate message on the veteran on an unspecified date. A letter from Martin L. Forcht, Jr. M.D., dated in September 1984, contained a statement that he treated the veteran for prostate disease in September 1973, October 1973, January 1977, November 1977 and in December 1977. A VA examination report dated in October 1984 indicated an enlarged prostate and recorded a diagnosis of prostatic abnormality. Information in the claims file reflects the veteran's prostate was surgically removed in 1988. In the absence of what could reasonably be characterized as a currently existing, clinically verifiable chronic disability of the prostate there is no plausible basis for granting this claim. Rabideau v. Derwinski 2 Vet.App.141 (1992). Accordingly, the appeal is dismissed. With regard to contentions advanced that service connection should be granted for prostatitis prior to 1988, procedures relating to finality of prior decisions, as well as dates of claims, would not permit of such a result although, strictly speaking, this matter is not before the Board at this time. II. Cancer of the prostate The veteran advances on appeal that service connection is warranted for prostate cancer. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted for a disability which is proximately due to or the result of a service connected disease or injury. Further, where a veteran served ninety (90) days or more during a period of war and carcinoma of the prostate becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A § § 1101, 1112,1113, (West 1991); 38 C.F.R. § § 3.307, 3.309 (1993). In September 1994, the Board remanded this case to the RO to consider the issue of service connection for cancer of the prostate, which was accomplished on a direct and on a secondary basis. It is not contended otherwise, however, than that carcinoma developed secondary to prostatitis, and the decision in this case will proceed accordingly. VA and private treatment records convey that the veteran's first diagnosis of prostate cancer occurred in March 1988 during an examination at a VA medical facility. He also underwent a prostatectomy in March 1988. For purposes of assessing the prospects for the existence of an etiological relationship between prostatitis, and carcinoma of the prostate, it is conceded that prostatitis was present on a "chronic" basis during service, and that "continuity of symptomatology" was evident thereafter (until 1988). The transcript of a personal hearing conducted in June 1992 contained evidence in the form of oral testimony under oath that cancer of the prostate was first discovered in March 1988, and that he also had his prostate surgically removed in March 1988. The veteran was asked during the hearing if anyone told him that his cancer was connected with his chronic prostatitis. He replied that he had not been to anybody but the VA and that they do not tell you anything. A VA medical examination conducted in July 1992 indicated the veteran gave a history of chronic prostatitis during military service. The examining physician stated, after a review of the veteran's medical history, that he did not see any correlation between the veteran's chronic prostatitis and carcinoma of the prostate. The evidence is not in equipoise concerning the matter of whether carcinoma is shown to be secondary to prostatitis. Lay testimony and assertions would not suffice for this purpose. Espirtu v. Derwinski 2 Vet.App. 492 (1992). Accordingly, service connection for cancer of the prostate secondary to the veteran's service connected chronic prostatitis is denied. ORDER 1. Service connection for chronic prostatitis is dismissed. 2. Service connection for cancer of the prostate secondary to the veteran's service connected chronic prostatitis is denied. JEFF MARTIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.