Citation Nr: 1008092 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 08-23 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for benign prostatic hyperplasia (BPH). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from April to November 1978 and again from October 2003 to April 2005. He also served in the Arkansas Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). In April 2009, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. FINDINGS OF FACT 1. The Veteran had BPH prior to entering his second period of active duty and it did not permanently increase in severity beyond the natural progression of the disease during the second period of active service. 2. Any post-service diagnosis of BPH is not attributable to service. CONCLUSIONS OF LAW 1. BPH clearly and unmistakably preexisted the Veteran's second period of active duty and was not aggravated by such service, and the presumption of soundness at entry is rebutted. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2009). 2. BPH was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that he fell during service and injured his prostate. He also stated that he was a cook in service and that he did a lot of heavy and moving while on active duty and sustained injury to the prostate as a result. Finally, it is maintained, in the alternative, that the preexisting BPH was aggravated by his second period of active duty. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3- 2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre- existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the pre-existing disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the pre-existing disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Although VA's General Counsel has determined that the definition of "aggravation" used in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination. The word "aggravate" is defined as "to make worse." Webster's II New College Dictionary (1999). If the Board finds that there is clear and unmistakable evidence that the Veteran's BPH preexisted service, the Board must then determine whether there is clear and unmistakable evidence that the preexisting BPH was not "made worse" or aggravated in service such that the presumption of soundness has been rebutted. In this case, the medical evidence shows that in July and August 2001, the Veteran was found to have an enlarged prostate during a physical while on inactive duty for the Army National Guard. He was instructed to see his private physician for evaluation. In August 2001, he was seen by his private physician for a check up and to see about getting some medication for his condition. He reported nocturia 4 to 5 times per night , some occasional intermittency and hesitancy and quite a bit of dribbling at the end. He was prescribed Flomax. Two months later in October 2001, he was seen for a follow-up. The Veteran indicated that he took Flomax if her remembered and it tended to work fairly well. His nocturia and intermittency was much decreased. He was instructed by his physician to continue to use Flomax daily. In March 2002, an Annual Medical Certificate was completed for the National Guard. The certificate indicated, in pertinent part, that the Veteran had been diagnosed one year earlier with BPH. He was prescribed medication that he had not started and he was having symptoms of urinary hesitancy. The examiner advised the Veteran that he needed to commence his medication and that he would need to have the medication for active duty training and other training activity. He was found to be fit for duty. In July 2002, the Veteran's private physician submitted a medical statement indicating that he was treating him for BPH. He stated that the condition was fairly asymptomatic and that it was okay for the Veteran to participate in the National Guard. In October 2003, the Veteran was noted to have BPH and a recent urinary tract infection. He was treated and found deployable. In November 2003, prior to his deployment, the Veteran was seen for his enlarged prostate. It was noted that he had incomplete voiding, hesitancy, and occasional dsyuria. He had discontinued taking his Flomax. The assessment was BPH without prostatitis. He was instructed to start Flomax and obtain a refill before deployment. A medical assessment performed during the Veteran's deployment indicated that the Veteran rated his heath as the same or better. After service, the Veteran underwent a VA examination in May 2006. It was noted that he was diagnosed with BPH in 2002 while in the Army National Guard. He was placed on medication (Flomax) which markedly improved his symptoms at that time. The only symptoms noted at the time of the examination were nocturia on average 2 times per night. He denied bladder outlet obstructive symptoms, hematuria, stones, incontinence, weight loss, flank pain, need for a Foley, bladder pain, bladder outlet obstructive symptoms, frequency, hesitancy, edema, or need for a sanitary pad. His symptoms were basically the same as those he had pre-Iraq tour of duty. In April 2009, the Veteran testified at a videoconference hearing before the undersigned Acting VLJ. He testified that he was a cook in service and that he did a lot of heavy lifting and moving. He also related that he fell and hurt his prostate while on active duty. The Veteran was diagnosed with BPH prior to active service, while on inactive duty in the National Guard. He was treated by a private physician who prescribed Flomax. His private physician found him fit to serve in the National Guard, and he was also found fit to be deployed to Iraq. BPH clearly and unmistakably preexisted service at least two years. Since the presumption of soundness has been rebutted, VA must now determine if there is clear and unmistakable evidence that the Veteran's BPH was not aggravated or made worse in service. The evidence shows that the Veteran's BPH started prior to service and was prescribed Flomax. When the Veteran was initially treated with Flomax, he had nocturia five times per night. Throughout his period of service, he was prescribed Flomax and used it only periodically although it was prescribed for daily use. His symptoms were similar and showed no worsening. On his medical assessment, he indicated that his health was the same or got better during his deployment. His most recent VA examination in 2006 showed he was still prescribed Flomax, and his nocturia was on average two times per night. He had no increased symptoms and the VA examiner indicated that his symptoms were basically the same as they were pre-Iraq tour of duty. Since there is no evidence of any worsening of symptoms, there can be no aggravation of disability. Therefore, there is no clear and unmistakable evidence that the Veteran's BPH worsened in service, and service connection based on aggravation is not warranted. Additionally, the Veteran testified that he fell in service and injured his prostate and that the heavy moving and lifting performed in service caused his BPH. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Although the Veteran is able to indicate that he had pains lifting or moving or after a fall, he can not determine that this was the etiology of his BPH, especially since the condition was diagnosed and treated prior to active service. As to aggravation, temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre- service disability underwent an increase in severity during service. Hunt, 1 Vet. App. at 292, 296 (1991); see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Although the Veteran has currently diagnosed BPH, the most probative evidence of record does not establish that BPH was incurred or aggravated in service, and no nexus has been established between a current BPH disability and the Veteran's military service. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran has BPH etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2006 that fully addressed all notice elements and was sent prior to he initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in April 2007, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In determining whether a medical examination should be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO obtained service treatment records. Next, VA treatment records were submitted on behalf of the claim. Moreover, he underwent a VA examination in May 2006. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for BPH is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs