BVA9502309 DOCKET NO. 93-03 588 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a disability of the prostate. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from February 1952 to February 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1992, rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in October 1992. The statement of the case was sent to the veteran in November 1992. The substantive appeal was received in January 1993. In July 1993, this case was remanded by letter for a personal hearing before a member of the Board. The personal hearing before a member of the Board was conducted in November 1993. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he was initially treated for a prostate problem during service. He asserts that it is not his fault that his service medical records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC) facility. He asserts that those destroyed records would show treatment for his prostate problems in service. He further contends that he currently suffers from a disability of the prostate. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a disability of the prostate. FINDING OF FACT A review of all of the evidence of record does not establish that the veteran has a disability of the prostate of service origin. CONCLUSION OF LAW The veteran's current disability of the prostate was not incurred in or aggravated in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially notes that in March 1989, the NPRC initially indicated that the veteran's service medical records had been destroyed in the 1973 fire at that facility. The NPRC conducted several more searches in May 1989, January 1990, and in March 1990 in order to reconstruct the veteran's service records. Although the searches by the NPRC yielded a few morning reports and daily sick reports of the veteran for complaints during service, those reports merely reflect treatment, they do not reveal the nature of that treatment. The applicable laws and regulations state that a veteran is entitled to service connection for disability resulting from a disease or injury incurred in or aggravated in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). In his application for compensation dated in February 1989, the veteran indicated that he was treated for a kidney disorder during service. In a subsequent September 1989 personal hearing at the RO, he related that he had either kidney or prostate problems during service, but he was unsure of the exact medical nature of his symptoms which included penile discharge, pain, and frequent urination. The Board notes that the issue of entitlement to service connection for a kidney disorder was the subject of a November 1990 Board decision which denied entitlement to service connection. The veteran is not currently seeking entitlement to service connection for a kidney disorder, rather, he currently believes that a disability of the prostate began in service and any symptoms he experienced during service were attributable to that disorder. As previously noted, the veteran's service medical records do not document the nature of the veteran's complaints or the type of treatment rendered in service. The Board notes that even assuming that the veteran was treated for a disability of the prostate in service, the veteran's records subsequent to discharge would have to show that the veteran's current prostate problems are related to those in service. With chronic disease shown as such in service, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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 Board observes that it is completely unclear, what, if any, disability of the prostate existed during service. Although the veteran has asserted that his symptoms of penile discharge, pain, and frequent urination may have been symptoms of a prostate disorder, he has not been shown to be capable of making medical conclusions. Therefore, his statement is not probative. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Further, there is no medical documentation from service to substantiate his statements. Since neither manifestations sufficient to identify any disease that may have been present in service nor observations sufficient to establish chronicity during service, have been presented, the Board finds that the veteran did not have a chronic disease of the prostate during service. Therefore, per the above-cited regulations, continuity of symptomatology must be shown in order to establish service connection. The VA has attempted to verify the veteran's claim by obtaining all of his medical records following service. Although the veteran asserted that he was treated continuously since discharge, a review of these records reveals that the earliest date of any treatment for a disability of the prostate is 1965. Specifically, a statement submitted by Dr. William G. McCuen indicated that he treated the veteran on several occasions between 1965 and 1970 for prostatism. The Board observes , therefore, that the record reflects that the veteran was not treated for any disability of the prostate for over 10 years after discharge. In addition, the Board has reviewed numerous private medical records submitted by Dr. Lewis Jones, Jr. and Lawrence K. Hill, M.D., as well as VA records including 1989 VA outpatient treatment records and an April 1989 VA examination. The aforementioned records document a disability of the prostate since 1988, but do not relate that any current disability of the prostate is related to service or any incident in service in any way. Therefore, although these records are probative as to the nature and extent of the veteran's current disability of the prostate, they have no bearing on whether a disability of the prostate was initially incurred in service and/or whether any disability of the prostate that the veteran may have had in service resulted in his current disability. In summary, a review of the veteran's available service records show that he received treatment during service, however, it is unclear what type of disability he was treated for. He asserts that he was in fact treated for a disability of the prostate and then subsequently suffered from continuous problems involving the prostate gland since discharge. The records following service include a statement of a private physician who stated that he treated the veteran since 1965 for prostate problems. This is the earliest record of treatment since separation although the veteran had been discharged from service for over 10 years prior to the treatment. Therefore, due to the lack of treatment immediately following service and for over 10 years after service, the Board finds that continuity of symptomatology has not been established in support of the veteran's claim as set forth under 38 C.F.R. § 3.303(b) (1993). Likewise, there is no current medical documentation which substantiates that the veteran's current disability of the prostate is related to service in any way. As noted, the veteran's unsupported assertions that his current disability is related to service is not probative in that there is not supporting medical evidence and the veteran has not been shown to be capable of making medical conclusions. Espiritu. The Board has considered the credibility and probative value of the veteran's assertions and the evidence of record and has given full consideration to the benefit of doubt doctrine under 38 U.S.C.A. § 5107 (b) (West 1991), particularly since the veteran's service medical records were destroyed. O'Hare v. Derwinski, 1 Vet.App. 365 (1991). However, the Board finds that the weight of the evidence in this case is against the veteran's claim. The Board concludes that the veteran's allegations are not persuasive in light of the lack of supporting medical evidence, particularly in light of the lack of continuity of treatment for a disability of the prostate following service and the lack of any medical evidence establishing a relationship between any current disability and service. In addition, the Board also concludes that the benefit of the doubt doctrine is not applicable since there is not an approximate balance of positive and negative evidence, rather, the negative evidence clearly outweighs the positive evidence in this claim. Accordingly, based on the foregoing, the Board finds that the evidence of record does not establish that the veteran has a disability of the prostate of service origin. Therefore, the Board concludes the veteran's current disability of the prostate was not incurred in or aggravated in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). ORDER The appeal is denied. EUGENE A. O'NEILL 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. 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.