Citation Nr: 0811532 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-08 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for osteomyelitis of teeth 23, 24 and 25. 2. Entitlement to service connection for a prostate disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and S.W. ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from December 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran was afforded a March 2008 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The veteran made a motion to advance his case on the docket, which was granted in a March 2008 ruling. The issue of a compensable evaluation for osteomyelitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A prostate condition was not manifested during the veteran's active service or for many years after separation from service, nor is a prostate condition otherwise related to such service. CONCLUSION OF LAW A prostate condition was not incurred in or aggravated during the veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the claim, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in August 2004 and March 2008. These letters effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claim. Additionally, the March 2008 letter provided notice of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the March 2008 letter was not timely received, the denial of the claim in the instant decision makes the timing error non-prejudicial. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records, VA treatment records, and private medical records are associated with the claims file. The veteran has not been afforded a VA examination in connection with his claim. In this circumstance, there is no duty on the part of VA to provide a medical examination, because as in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the appellant has been advised of the need to submit competent medical evidence indicating that he has the disorders in question, and further substantiating evidence suggestive of a linkage between his active service and the current disorders, if shown. The appellant has not done so, and no evidence thus supportive has otherwise been obtained. Here, as in Wells, the record in its whole, after due notification, advisement, and assistance to the appellant under the Veterans Claims Assistance Act (VCAA), does not contain competent evidence to suggest that the prostate condition is related to the veteran's military service. Given these matters of record, there is no competent evidence that "the disability or symptoms may be associated with the veteran's active military . . . service." 38 U.S.C.A § 5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002) (Holding that under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence, [including statements of the claimant]," and where, the claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge. Because there was evidence of record satisfying two of the requirements of the statute, i.e., competent evidence of a current disability and evidence indicating an association between the appellant's disability and his active service, but there was not of record, as relied upon in part by the Board in denying his claim, competent medical evidence addressing whether there is a nexus between his tinnitus and his active service, VA was to provide the claimant with a medical "nexus" examination). The veteran and his representative have not made the RO or the Board aware of any outstanding evidence that needs to be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Analysis The veteran alleges that his prostate condition is related to his active service. Having carefully considered the record, the Board finds that the preponderance of the evidence is against the claim, and the claim will be denied. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). At the March 2008 Travel Board hearing, the veteran's representative reported that the veteran was treated for prostatitis in February and March 1946. However, a review of the veteran's service medical records does not reflect prostatitis treatment during February and March 1946, nor at any other time during active service. In his March 2006 Substantive Appeal, the veteran asserts that his prostatitis condition resulted from exposure to gonorrhea during active service. Service medical records reflect that the veteran was treated for gonorrhea. Nevertheless, service medical records do not show that the veteran experienced prostatitis as result of gonorrhea. There is no record of medical treatment for prostatitis until 50 years after active service. Private medical records, dated July 1997, reflect that the veteran underwent a transurethral prostatectomy for prostatic hyperplasia and mild chronic prostatitis. There are no other medical records referring to treatments for a prostate condition. The veteran was advised of the need to submit medical evidence demonstrating a current disorder and a nexus between a current disorder and service by way of the August 2004 letter from the RO to him, but he has failed to do so. A claimant has a responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and the veteran was clearly advised in the letter of the need to submit medical evidence of a current disorder and a relationship between a current disorder and an injury, disease or event in service. While the veteran is clearly of the opinion that he has a prostate condition that is related to service, as a layperson, the veteran is not competent to offer an opinion that requires specialized training, such as the diagnosis or etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Competent medical evidence is required. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). In addition, the Board finds that there is not evidence of an in-service event, injury, or disease that may be linked to any prostate condition experienced by the veteran. The veteran's service medical records do not show any complaints or treatment for a prostate condition. Without evidence of an in-service event, injury, or disease, in addition to medical evidence suggesting an etiological relationship between the veteran's current prostate condition and his active service, the Board must deny the claim. 38 C.F.R. § 3.303. ORDER Service connection for a prostate condition is denied. REMAND Regarding the veteran's claim for an increased evaluation for osteomyelitis, the Board finds that additional notification is necessary before it may adjudicate the claim. The veteran's disorder is evaluated under 38 C.F.R. § 4.150, Diagnostic Code 9900. Under this provision, chronic osteomyelitis of the maxilla or mandible is evaluated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5000. Under this rating provision, inactive osteomyelitis, following repeated episodes, without evidence of active infection in the previous 5 years warrants a 10 percent evaluation. Note (2) provides in relevant part that to qualify for the 10 percent rating, 2 or more episodes following the initial infection are required. 38 C.F.R. § 4.71a, Diagnostic Code 5000 and Note (2). Although the veteran underwent a VA dental examination in November 2004, it is not clear whether the veteran's claims file was reviewed as part of the examination. Shipwash v. Brown, 8 Vet.App. 218, 222 (1995); Flash v. Brown, 8 Vet.App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). Further, although the RO found from the text of the examination report that there was no evidence of active osteomyelitis, it is not clear whether such inquiry was made by the examiner. Given that the veteran is in receipt of service connection for the disorder, and is competent to provide testimony as to pain, a VA examination specifically directed towards ascertaining the presence of the disorder must be conducted. The examiner must specifically address the alleged disorder; the examiner's silence is insufficient [to show the lack of symptomatology]. Wisch v. Brown, 8 Vet. App. 139, 140 (1995). The veteran should receive notice in compliance with the recent Court of Appeals for Veterans Claims (Court) decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court ruled that adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the veteran notice that: (1) he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, (2) should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, and (3) examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. 2. The RO/AMC will afford the veteran a VA dental examination to ascertain whether his service-connected osteomyelitis is active, preferably to be conducted by the examiner who conducted the November 2004 VA examination report. The claims folder and a copy of this remand will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. After review of the claims file, the examiner should report whether the veteran now has active osteomyelitis of teeth 23, 24, and 25. 3. After completion of the above, and any additional development of the evidence, the RO should review the record, to include all additional evidence, and readjudicate the claim. If any benefits sought remain denied, the veteran and his representative should be issued an appropriate supplemental statement of the case, and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs