Citation Nr: 1133927 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 99-06 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left hand disability. 2. Entitlement to service connection for a leg disorder. 3. Entitlement to service connection for chronic bronchitis. 4. Entitlement to service connection for a urinary disorder. 5. Entitlement to service connection for prostatitis. 6. Entitlement to service connection for a liver disorder. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1970 and from April 1971 to January 1983, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from June 1998 and January 2000 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing that was held at the RO in March 2000. A transcript of this hearing is associated with the claims folder. In February 2001, the Board remanded the claims for additional development. The Board notes that the appellant requested a hearing before a decision review officer (DRO) in connection with the current claims. The DRO hearing was scheduled and subsequently held in December 2006 at the Jackson RO. The appellant testified at that time and the hearing transcript is of record. In March 2008, the Veteran was notified that the Judge before whom he had testified in March 2000 was no longer employed by the Board. He was offered an additional opportunity to testify before the Board. In a statement received later that month, the Veteran requested an additional hearing to be held at the RO in Jackson, Mississippi. As such, the Board remanded the Veteran's claims in April 2008 for the Veteran to be scheduled for a hearing at his local RO. The Veteran was subsequently scheduled for a hearing in June 2008 and was provided notice of the hearing in May 2008. The Veteran, however, did not appear for the scheduled hearing. Accordingly, the Board will proceed with the adjudication of his claims. This case was again before the Board in September 2008 when it was remanded for further development. In addition to the above listed claims, in September 2008 the Board remanded claims of entitlement to service connection for a right ankle disability, a left ankle disability, a right knee disability, a left knee disability, and a right shoulder disability. In a rating decision dated in May 2011 service connection was granted for left ankle sprain, right ankle sprain, right knee patellofemoral syndrome, left knee patellofemoral syndrome, tendonitis of the right shoulder, degenerative arthritis of the right knee, and degenerative arthritis of the left knee. As this represents complete grants of the Veteran's claims of entitlement to service connection for a right ankle disability, a left ankle disability, a right knee disability, a left knee disability, and a right shoulder disability, these issues are no longer in appellate status and will not be discussed in this decision. The issues of entitlement to service connection for a leg disorder and entitlement to service connection for a liver disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current leg disorder that is related to service or to an incident of service origin, including his presumed herbicide exposure. 2. The preponderance of the evidence is against a finding that the Veteran's current lung disorder is related to service or to an incident of service origin, including his presumed herbicide exposure. 3. The preponderance of the evidence is against a finding that the Veteran has a current urinary disorder related to service or to an incident of service origin, including his presumed herbicide exposure. 4. The preponderance of the evidence is against a finding that the Veteran has a current prostatitis disorder related to service or to an incident of service origin, including his presumed herbicide exposure. CONCLUSIONS OF LAW 1. A leg disorder was not incurred in or aggravated by service, and service connection for a leg disorder may not be presumed based on the presumption for diseases presumptively due to in-service herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. A lung disorder was not incurred in or aggravated by service, and service connection for a lung disorder may not be presumed based on the presumption for diseases presumptively due to in-service herbicide exposure. 38 U.S.C.A. §§ 1103, 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.307, 3.309 (2010). 3. A urinary disorder was not incurred in or aggravated by service, and service connection for a urinary disorder may not be presumed based on the presumption for diseases presumptively due to in-service herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 4. Prostatitis was not incurred in or aggravated by service, and service connection for prostatitis may not be presumed based on the presumption for diseases presumptively due to in-service herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the Agency of Original Jurisdiction (AOJ). Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of letters sent to the appellant in August 2001, July 2002, November 2005, and February 2009 that addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate the claims, of the appellant's and VA's respective duties for obtaining evidence, and that a disability rating and an effective date for the award of benefits would be assigned if service connection was awarded. Although the notice letters were not sent before the initial AOJ decisions in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her or his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case dated in May 2011 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The Veteran submitted private treatment records from Memorial Hospital at Gulfport, Memorial Rehabilitation Services, Coastal Headache and Pain Management Center, Ocean Springs Surgical and Endoscopy Center, Gulf Coast Surgery Center, and Drs. H.D., B.B., M.W., and G.S. The appellant was afforded VA medical examinations in August 2010, January 2011, and February 2011. The case was previously remanded in September 2008 for additional records to be obtained and for the Veteran to be afforded an appropriate VA examination(s). The Board notes that additional VA treatment records were obtained and associated with the claims file and that the Veteran was afforded VA examinations in August 2010, January 2011, and February 2011 pursuant to the Board's remand. In addition, an attempt was made to obtain treatment records from Dr. J.J. However, it was noted in a Report of Contact dated in May 2011 that the Veteran reported that Dr. J.J. was no longer in practice and, therefore, the Veteran desired that adjudication of his claims proceed with the information of record. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's September 2008 remand. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, neither the appellant nor his representative has 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 to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, service connection may be established on a presumptive basis for a disability resulting from exposure to an herbicide agent such as Agent Orange. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. The Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). (Under 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309(e) Note 3.) The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA is prohibited from granting service connection for disability or death due to disease or injury attributable to the use of tobacco products during a Veteran's active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Although the Board has reviewed in detail the seven volumes of lay and medical evidence, the Board will focus on the evidence that addresses whether the conditions are related to service. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A. Leg Disorder The Veteran seeks entitlement to service connection for a leg disorder. The service treatment records reveal that in April 1974 the Veteran reported to sick call with complaints of pain in the right upper leg region. Physical examination resulted in an assessment of possible muscle spasm. In January 1975, he complained of numbness in his left upper thigh. In March 1975, the Veteran complained of back pain that radiated into his left hip and leg. On orthopedic consultation, the Veteran was assessed with a compression fracture of the L1 vertebra. The Veteran complained of numbness in the legs in October 1975 and of tenderness in the left leg in May 1979. Post-service medical records show numerous complaints of pain that radiates from the Veteran's low back into his lower extremities. In October 1997, the Veteran underwent hip treatment and in May 1998, the Veteran complained of pain radiating into the left leg from the back. In August 2000, the Veteran complained of low back pain with radiation to the left thigh. In January 2001, the Veteran complained of leg numbness and weakness with stumbling. In June 2006, the Veteran was noted to have good relief from leg pain with spinal injections. In July 2008, the Veteran was noted to have lumbago with radiculitis. In August 2008, the Veteran as noted to have lumbago with pain radiating to the extremities. The Veteran was again noted to have lumbago with associated leg pain in May 2009. In August 1986, the Veteran was afforded a VA examination. The examination revealed no leg disorder. In April 2010 the Veteran was afforded a VA Compensation and Pension (C&P) neurological examination. After examination the Veteran was diagnosed with low back pain with no definite sequelae of radiculopathy. The Veteran was afforded a VA C&P joints examination in August 2010. The examiner stated that the legs were defined as from the knee down but that the Veteran considered that the legs were the lower extremities. The examiner, therefore, examined from the inguinal ligaments down. After physical examination the examiner was unable to find any leg abnormality other than abnormalities regarding the joints. The examiner noted that he was unable to determine without resort to speculation whether the Veteran's leg pain was related to the Veteran's back disorder or to some other disorder. The examiner reasoned that if the Veteran had injured his hips in a parachute accident or automobile accident there would be X-ray evidence of the injury. The examiner noted that the Veteran's hip X-ray was normal. In addition, the clinical picture of the Veteran did not equate to a diagnosable condition that would relate to the Veteran's military service or an automobile accident. The examiner further indicated that there were no other lower extremities symptoms of the legs. The Board finds that entitlement to service connection for a leg disorder is not warranted. Initially the Board notes that a leg disorder is not a condition for which service connection may be established on a presumptive basis based upon exposure to herbicides in service. As such, the Board will consider whether the Veteran is entitled to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board acknowledges that the Veteran's service treatment records reveal complaints of leg pain. In addition, the Board acknowledges that the Veteran's post-service treatment records reveal that the Veteran has received consistent care for leg pain. The Veteran's post-service treatment notes consistently report that the Veteran has radiating pain from the back into the legs; however, after neurological examination in April 2010, the Veteran was noted to have no definite sequelae of radiculopathy. After examination in August 2010, the Veteran was noted to have no abnormalities of the lower extremities, other than the joints, and no other symptoms of the lower extremities. The examiner further indicated that it was not possible to determine whether the Veteran's leg pain was related to the Veteran's back disorder or to some other disorder without resorting to mere speculation. The examiner explained that the Veteran's hip X-ray was normal and that if the Veteran had injured his hips in a parachute accident or automobile accident there would be X-ray evidence of the injury. In addition, the examiner noted that the clinical picture did not equate to a diagnosable condition. As such, the Board finds that the examiner has adequately explained why an opinion could not be reached without resort to mere speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (before relying on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the review of the evidence). As the preponderance of the evidence is against a finding that the Veteran has a leg disorder independent of his back disorder and the preponderance of the evidence is against a finding that any leg disorder may be related to the Veteran's active service, entitlement to service connection for a leg disorder is denied. B. Chronic Bronchitis The Veteran contends that he developed a chronic bronchitis disorder during active service. He contends that he was treated for pneumonia in January 1970 and that he suffered from shortness of breath in service. The service medical records show that he was treated for respiratory infections, including bronchitis, on multiple occasions during each period of active service, including treatment in October 1969, September 1974, April 1977, and August 1982. The Veteran was also treated for a questionable upper respiratory infection in March 1976. Records dated in March 1977 demonstrate an impression of "chronic bronchitis, by history only." VA examination in August 1986 did not reveal any bronchitis. Post-service clinical records demonstrate that the Veteran was assessed with chronic bronchitis in March 1999. He was prescribed daily Combivent for treatment. Subsequent records show that the Veteran has been treated for acute bronchitis on multiple occasions. In October 1999, the Veteran's lungs were noted to be clear. The Veteran underwent a chest X-ray in Febraury 2000 that revealed no acute infiltrate. In September 2000, a chest X-ray again revealed no active infiltrate in the lungs. In a treatment note dated in May 2001 the Veteran was indicated to have a history of bronchitis. A chest X-ray dated in April 2002 indicated that the lungs were grossly normal and that there was no active segmental air space consolidation. In April 2002, the Veteran was afforded a VA C&P general medical examination. He reported that he has smoked one-half pack of cigarettes per day for 30 years. He complained of an occasional cough, not a daily/chronic cough. The cough was occasionally dry and at other times productive. He complained of shortness of breath and did not know how far he could walk. He used Combivent twice a day and reported that he had been told in the past that he had bronchitis. He thought he had had pneumonia and was unsure if he had had tuberculosis. The lungs were clear to auscultation and percussion without rales, rhonchi, or wheezes. There was no prolongation of the expiratory phase and there was no increase in his A/P diameter. In June 2003, the Veteran underwent a chest X-ray. The X-ray revealed no acute infiltrate. The X-ray also revealed moderate pulmonary vascular congestion. In February 2005, the Veteran was diagnosed with bronchitis and was treated with antibiotics. At a hearing before a DRO in December 2006 the Veteran indicated that he was told he had chronic bronchitis in service but that no treatment was provided. Active problems lists included in the Veteran's post-service treatment notes include bronchitis. In October 2008, the Veteran complained of persistent cough with congestion and tightness in the chest with an onset one and one half weeks prior. Examination revealed bilateral expiratory wheezes at the bases. The Veteran's condition was treated as a case of upper respiratory tract with antibiotics. In November 2008, the Veteran complained of a persistent cough with chest and nasal congestion, night sweats and chills. An X-ray was ordered to rule out infiltrate that would suggest pneumonic process versus bronchitis. In August 2010, the Veteran was afforded a VA C&P respiratory examination. He reported suffering from a persistent cough with on and off sputum production. The sputum was reported to be whitish and that he can cough up to one quarter of a cup per day. The Veteran denied hemoptysis and had not experienced anorexia, weakness, or lassitude. He becomes winded after walking 50 yards on a flat surface. He has not been diagnosed with asthma and has not reported for urgent care due to bronchospasm. He did not receive oxygen therapy. He has been diagnosed with obstructive sleep apnea and uses a CPAP mask. The Veteran had not been incapacitated due to a respiratory disorder over the prior 12 months. The Veteran reported an episode of pneumonia in Germany in either 1969 or 1970. The Veteran's respiratory medical profile includes flunisolide nasal spray, guaifenesin, and codeine liquid, and Cobivent. The Veteran reported that he used the inhaler almost daily. His service treatment records were noted to indicate an episode of a right lower lobe pneumonia in 1970. The records also indicate that the Veteran has been suffering from dyspnea, chest pain secondary to exertion, and smoking of two to three packs of cigarettes per day. The Veteran's heart was evaluated in service in regard to his complaints of chest pain. He was treated for upper respiratory infection or sinus congestion in service. The examiner found no service treatment records regarding complaints or pharmacologic therapy for persistent dyspnea or a chronic respiratory condition. Physical examination revealed an increase in A to P diameter. The bony ribcage was intact. There was no kyphosis limiting respiratory excursion. Inspiratory to expiratory ratio was within normal limits. The chest was resonant throughout and there were no inspiratory crackles or expiratory wheezes. A chest X-ray revealed bilateral emphysematous changes without significant cardiomegaly. Pulmonary function tests revealed moderate obstruction with gas trapping and diminished gas exchange consistent with a smoking history. The carboxyhemoglobin value was elevated due to tobacco abuse. The Veteran was diagnosed with obstructive lung disease, secondary to longstanding and continued tobacco abuse. The examiner stated that the Veteran meets the criteria for a clinical diagnosis of chronic obstructive pulmonary disease; however, the Veteran's condition was of the emphysematous type. The examiner opined that it was not likely that the Veteran developed a chronic lung disease during or as a result of his active service. The examiner reported that the Veteran's longstanding smoking was more than likely the cause of the Veteran's lung disorder, rather than the Veteran's exposure to herbicides in service. The examiner provided the rationale that the service treatment records do not indicate any significant lung disease but did indicate that the Veteran had a poor exercise tolerance due to a two to three pack a day dependence on cigarettes. The examiner noted that given the Veteran's 40 year history of tobacco abuse of up to three packs per day since the Veteran's single episode of pneumonia in 1970 it is more likely that the Veteran's contemporary chest X-ray demonstrating emphysema, pulmonary function tests demonstrating obstructive lung disease, and an arterial blood gas showing an elevated carboxyhemoglobin value, that the Veteran's chronic lung condition is due to cigarette abuse. The Board finds that entitlement to service connection for bronchitis is not warranted. Initially the Board notes that bronchitis is not a condition for which service connection may be established on a presumptive basis based upon exposure to herbicides in service. As such, the Board will consider whether the Veteran is entitled to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's service treatment records reveal complaint, diagnosis, and treatment for multiple upper respiratory infections and an impression of "chronic bronchitis, by history only." The Veteran's post-service treatment records reveal multiple treatments for bronchitis. However, after examination in August 2010, the Veteran was noted to be diagnosed with chronic obstructive pulmonary disease of the emphysemous type and to not be diagnosed with bronchitis. The examiner rendered the opinion that the Veteran's lung disorder was more than likely the caused by the Veteran's smoking and was not related to the Veteran's active service, including any exposure to herbicides in service. As discussed above, VA is prohibited from granting service connection for disability due to disease or injury attributable to the use of tobacco products during service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300(a). As such, although the Veteran was treated for respiratory infections in service and has been treated for respiratory infections and bronchitis since separation from service, as the preponderance of the competent and credible evidence indicates that the Veteran's current lung disorder is related to the Veteran's smoking and is less likely than not related to the Veteran's active service including any exposure to herbicides therein, entitlement to service connection for bronchitis is denied. C. Urinary Disorder The Veteran seeks entitlement to service connection for a urinary disorder. The Veteran's service treatment records reveal that the Veteran was treated for recurrent urinary tract infections and urethritis. Post-service medical records similarly demonstrate treatment for recurrent urinary tract infections and urethritis. In January 2000, the Veteran underwent an ultrasound examination. The examination revealed nonobstructing calculus at the mid collecting system of the left kidney. In February 2000, the Veteran was noted to have a normal urethra and a ureteral stent was placed on the left side. In April 2000, the Veteran was noted to have a normal urethra and the Veteran was noted to have undergone removal of renal calculus with stent implantation. The Veteran reported a burning sensation with frequent urination in February 2001. The Veteran complained of bladder urgency in June 2001. The Veteran underwent a kidney scan in April 2002. The scan revealed a normal kidney. In August 2005, the Veteran reported nocturia. He denied hesitancy, weak stream, hematuria, and renal colic. The Veteran complained of burning urination in September 2006. In October 2007, the Veteran was noted to have a history of urolithiasis. The Veteran reported off and on stream with some urinary burning. However, the Veteran denied weak stream, hesitancy, and hematuria. At a hearing before a DRO in December 2006 the Veteran indicated that he had burning urination while in service. The Veteran was afforded a VA C&P examination in August 2010. The Veteran reported urinary frequency. He denied lethargy, weakness, anorexia, or appreciable weight change. He reported urinating six times per day and four times in the evening. He experienced occasional hesitancy and intermittency but denied postvoid dribbling or frank incontinence. The Veteran did not wear a pad or diaper. He indicated that if he could not get to a bathroom he would often urinate on himself. The Veteran reported a surgical procedure to remove a stone from his kidney. He had no renal colic and had no history of congenital kidney disease or an episode of acute nephritis. The Veteran has not been hospitalized for a urinary condition over the prior year. He has never been diagnosed with a genitourinary neoplasm. He did not have a catheterize himself to urinate. The Veteran had never undergone a urethral or ureteral dilation or an external drainage procedure. He had not been advised on a specific diet for his genitorurinary condition. The Veteran has been followed by a urologist for benign prostatic hypertrophy (BPH) and his medications included Terazosin at night to diminish bladder outlet obstruction. The Veteran denied nonlocalized low back pain, dyruria, pyuria, or hematuria. The Veteran's service treatment records were noted to reveal a significant history of urethritis and prostatitis. He was noted to have had an episode of gonococcal urethritis in 1968 and to have complained of dysuria and dribbling in 1973, 1976, 1977, 1978, and 1979. The Veteran had a long history of urethritis manifest with hesitancy and postvoid dribbling. He has been prescribed Septra, Macrodantin, and tetracycline for the complaints. He was referred to a urologist in 1977. An IVP was performed that showed a nonpathologic distal narrowing of the urethral caliber. The diagnosis given was chronic prostatitis without stricture. The examiner noted that more recently the Veteran's genitourinary symptoms were secondary to nephrolithiasis. The Veteran had a ureter stent placed due to left renal colic when extracorporeal shock wave therapy failed to dislodge a stone. The Veteran was noted to eventually undergo a cystoscopic procedure to remove the stent and the report indicated that the Veteran had bilobar hypertrophy of the prostate. The Veteran's treatment records were noted to reveal an enlarged prostate in 2007. The Veteran has been reported to have variable responses to treating physicians in regard to alpha blocker therapy. The Veteran's PSA has never been elevated and he had never undergone a prostate biopsy. The examiner did not see recurrent episodes of urethritis or prostatitis over the decade prior to the examination. Physical examination revealed prostate uniformly enlarged without nodularity. There was pain on palpation of the prostate without bogginess. There was no urethral discharge. The renal function was intact with a BUN of 11 and a serum creatinine of 1.0 mg/dl. The glomerular filtration rate was an estimated 91 mL/min. The urinalysis was clear and there was no evidence of glucosuria, proteinuria, or positive leukocyte esterase/nitrite. Glucose and hemoglobin A1c testing was indicative of diabetes. The PSA was within normal limits and liver associated enzymes were within normal limits. The Veteran was diagnosed with BPH, secondary to age, symptomatic bladder outlet obstruction on tolerated alpha blocker therapy, without evidence of chronic kidney disease, post-renal kidney failure. The examiner noted that the Veteran met the criteria for a clinical diagnosis of a urinary disorder. The Veteran's urinary disorder was not separate from a diagnosis of prostate disorder. He suffers from BPH due to the normal aging process. He did not meet the criteria for a clinical diagnosis of chronic prostatitis. The examiner noted that the Veteran suffered from prostatitis in service but that he did not currently have prostatitis but rather an enlargement of the prostate with bladder outlet symptoms. The examiner rendered the opinion that it is not likely that the Veteran's prostatitis during service is related to his current prostate difficulties. The Board finds that entitlement to service connection for a urinary disorder is not warranted. Initially the Board notes that a urinary disorder is not a condition for which service connection may be established on a presumptive basis based upon exposure to herbicides in service. As such, the Board will consider whether the Veteran is entitled to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board acknowledges that the Veteran was treated for recurrent urinary tract infections and urethritis in service. In addition, the Board acknowledges that the Veteran has been treated for recurrent urinary tract infections and urethritis after separation from service. However, after examination in August 2010 the examiner noted that although the Veteran meets the criteria for a diagnosis of a urinary disorder, it not a separate disorder from the Veteran's prostate disorder, and that the Veteran's prostate disorder is due to the normal aging process and is not related to the Veteran's active service. As such, the preponderance of the evidence is against a finding that the Veteran's current urinary disorder is related to active service and, therefore, entitlement to service connection for a urinary disorder is denied. D. Prostatitis The Veteran seeks entitlement to service connection for prostatitis. The Veteran's service treatment records reveal numerous entries of treatment for prostatitis. Post-service records demonstrate treatment for prostatitis as early as August 1986. He was again diagnosed with prostatitis in March 1989. Subsequent records show complaints of and treatment for urinary burning, and nocturia and urgency associated a diagnosis of BPH, no additional diagnosis of prostatitis. In April 2000 the Veteran was noted to have a moderate degree of bilobar prostate hypertrophy, nonobstructing. In June 2001 the Veteran was noted to have a history of BPH and bladder urgency. The Veteran was noted to have BPH and nocturia in April 2002 The Veteran was scheduled for VA examination for prostatitis in April 2002. The examiner, however, addressed the Veteran's BPH rather than prostatitis. The examiner noted that the Veteran was followed for BPH by VA, and that he had been prescribed Terazosin for symptoms of frequency and burning with stress incontinence. In June 2005 the Veteran was noted to have a history of BPH treated with Terazosin. His subsequent treatment records reveal consistent diagnosis of BPH. At a hearing before a DRO in December 2006 the Veteran indicated that he had prostatitis while in service and that he has continued to have the condition since service. He reported that he was given four pills a night to shrink his prostate. As noted above, the Veteran was afforded a VA C&P genitourinary examination in August 2010. After examination the examiner noted that the Veteran's urinary disorder and prostate disorder were not separate disorder and that the Veteran suffered from BPH due to the normal aging process. The examiner noted that the Veteran did not meet the criteria for a clinical diagnosis of chronic prostatitis. The Veteran was reported to have suffered from prostatitis in service but that he did not currently have prostatitis but rather an enlargement of the prostate with bladder outlet symptoms. The examiner rendered the opinion that it is not likely that the Veteran's prostatitis during service is related to his current prostate difficulties. The Board finds that entitlement to service connection for prostatitis is not warranted. Initially the Board notes that prostatitis is not a condition for which service connection may be established on a presumptive basis based upon exposure to herbicides in service. As such, the Board will consider whether the Veteran is entitled to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board acknowledges that the Veteran was treated for prostatitis in service and that the Veteran's post-service treatment records reveal treatment for prostatitis. However, after examination in August 2010 the Veteran was noted to not have any current diagnosis of prostatitis and it was reported that he instead had an enlarged prostate, related to the natural aging process, with bladder outlet syndrome. The examiner rendered the opinion that the Veteran's current prostate difficulties were not likely related to the Veteran's in service prostatitis. As the preponderance of the evidence is against a finding that any current prostate disorder is related to the Veteran's in service prostatitis, entitlement to service connection for prostatitis is denied. In reaching the decisions above the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to service connection, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a leg disorder is denied. Service connection for chronic bronchitis is denied. Service connection for a urinary disorder is denied. Service connection for prostatitis is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran seeks entitlement to service connection for a left hand disability. In September 2008 the Board remanded the Veteran's claim of entitlement to service connection for a hand disability for additional records to be obtained, for the Veteran to be afforded an appropriate examination, and for the issue to be readjudicated in a supplemental statement of the case after completion of the development ordered. The Board notes that although additional records have been obtained and associated with the claims file and the Veteran was afforded an appropriate examination regarding his left hand in February 2011, the claim was not subsequently readjudicated in the supplemental statement of the case dated in May 2011. Thus, the claim must be remanded to the RO for appropriate adjudication. See 38 C.F.R. § 19.37 (2010); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to service connection for a liver disorder, including hepatitis C. The Veteran contends that his hepatitis C is related to his active service. The Veteran contends that liver problems were noted in April 1970 on his Report of Medical History. The Veteran's service treatment records are silent as to any reported drug use. Post-service records demonstrate that in October 1984, the Veteran reported an in-service history of hepatitis. Liver and spleen scans at that time were normal. A VA examination report, dated in August 1986, did not reveal a liver disorder. In November 1986, the Veteran was hospitalized for treatment of non-A non-B hepatitis. At the time of his hospitalization, he reported a history of occasional intravenous drug use, but denied a history of routine drug use. Records dated in February 2001 show that he reported that he began using intravenous drugs in service. In September 2001, he was diagnosed with hepatitis C. The Veteran's service personnel records indicate that his primary military occupational specialty was cook. His service treatment records are negative for a diagnosis of hepatitis. On VA examination in April 2001, the examiner noted that the Veteran was positive for hepatitis C, and that he had a long history of alcohol and drug abuse. Post-service treatment notes reveal that the Veteran reported abusing drugs in service including heroin, cocaine, opium, and marijuana. In April 2002 the Veteran was afforded a VA C&P general medical examination. The examiner noted that there were no complaints or evidence of any liver disease in the Veteran service treatment records. The Veteran was noted to be positive for Hepatitis C. At a hearing before a DRO in December 2006 the Veteran indicated that he was told he had some kind of liver problem in service but that he forgot the diagnosis. In January 2011 the Veteran was afforded a VA C&P hepatitis C examination. The Veteran reported that he used intravenous drugs in service. The Veteran denied blood transfusions and tattoos. He indicated that he was sexually active in service. After examination the Veteran was diagnosed with hepatitis C. The examiner noted that based upon the Veteran's diagnosis of non-A/non-B hepatitis in November 1986 and that this was the clinical name for what was later designated as hepatitis C, the onset of the Veteran's hepatitis C was in 1986. The examiner stated that the Veteran's use of illegal intravenous drugs in service "would be the most likely source of his hepatitis C." The examiner further noted that the Veteran currently had normal liver function and was not receiving any treatment. The Board notes that the Veteran is currently in receipt of service-connected benefits for posttraumatic stress disorder (PTSD). As the Veteran's hepatitis C has been associated with the Veteran's use of illegal intravenous drugs in service, the Board finds it necessary to obtain an opinion regarding whether the Veteran's use of illegal intravenous drugs in service was an attempt to self medicate for his symptoms of PTSD. Since the claims file is being returned it should be updated to include VA treatment records compiled since November 2010. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain VA medical records pertaining to the Veteran that are dated since November 2010. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Obtain an addendum to the January 2011 VA liver examination, or if necessary, obtain a new examination. The examiner should, based upon a review of the record, render an opinion as to the following questions: Is it at least as likely as not that the Veteran's use of illegal intravenous drugs in service represent self medication for symptoms of PTSD? A complete basis for any opinion expressed should be clear in the examination report. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report(s). If the requested examination(s) do(es) not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs