Citation Nr: 1237248 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-38 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a prostate disorder, to include prostatitis and benign prostatic hyperplasia. REPRESENTATION Appellant represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating determination of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. The Veteran testified before the undersigned in October 2010. A transcript of the hearing is of record. In a March 2011 decision, the Board dismissed other issues then on appeal and remanded this matter for further development. Given the evidence of record showing that the Veteran also has been diagnosed with benign prostatic hyperplasia (BPH), an enlarged prostate, the Board has broadened the issue pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2012, the Veteran, through his representative, submitted additional medical evidence to the Board. Although it was not accompanied by a waiver of initial review by the RO, as the evidence is either duplicative or cumulative of evidence previously considered, neither a solicitation of a waiver of RO review of the evidence nor a remand for the issuance of a supplemental statement of the case (SSOC) is needed. Moreover, as the appeal is being granted, there is no prejudice to the Veteran. FINDING OF FACT The Veteran's prostatitis and BPH are causally related to active service. CONCLUSION OF LAW The criteria for service connection for prostatitis and BPH have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act Before addressing the merits of the issue of entitlement to service connection for a prostate disorder, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2012). In light of the Board's favorable determination, no further discussion of VCAA compliance is needed at this time. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. Id. Service connection may be also granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran asserts that he was treated for prostatitis in service and has experienced a continuity of prostate symptomatology since then. The Veteran's service treatment records confirm that he was consistently diagnosed with prostatitis on multiple occasions from July 1973 to June 1974. In July 1973, after months of genitourinary complaints, including burning on urination, he was diagnosed with probable chronic prostatitis. He was subsequently given diagnoses of chronic and recurrent prostatitis. Examinations in August 1973 and May 1974 also showed an enlarged prostate. However, his September 1974 Report of Medical Examination at separation from service indicated that his genitourinary system was normal. The accompanying Report of Medical History was not completed. During a July 2008 VA examination, the Veteran reported that he had been treated for episodes of prostatitis with antibiotics since 1973 while in service. Examination showed that the prostate was not enlarged or tender. The examiner indicated that physical examination did not demonstrate prostatitis and that no objective evidence of record showed continued prostatitis. The examiner then stated that he could not determine the etiology of the Veteran's prostatitis "without resorting to mere speculation." Subsequently, the Veteran submitted private medical treatment records diagnosing prostatitis and related disorders. A February 2007 treatment note diagnosed him with acute prostatitis, while a June 2008 treatment note diagnosed him with nocturia. A September 2009 treatment note diagnosed him with a urinary tract infection, while a March 2010 treatment note diagnosed him with BPH. Given the above, and noting that the Veteran is competent to state that he has experienced symptoms of burning and irritation on urination, the Board requested another VA examination. A September 2011 VA examination report reflects the Veteran's report of being diagnosed with prostatitis during service and being treated intermittently since then. He also reported problems with a weak stream, burning on urination, urinary frequency, and nocturia. The examiner noted that the Veteran had been treated for non-specific urethritis (NSU) and prostatitis in service and treated for prostatitis in February 2007, at which time he was also diagnosed with BPH. After examination, the examiner provided the pertinent diagnosis of BPH. The examiner noted that there was no objective evidence of prostatitis on examination. The examiner then stated that he could not determine the etiology of the Veteran's prostatitis "without resort to mere speculation." The examiner stated that he could not opine with any degree of certainty that the Veteran's current condition is the same condition reported in the 1970s. The examiner commented that a review of the medical literature shows that factors such as aging, BPH, and irritative voiding are common in many men usually beginning at age 40+ and may have similar reported symptoms to NSU and prostatitis. Although not before the Board at the time of the prior remand, or before the above examiner, the record reflects that the Veteran, through his representative, submitted a letter from his private treating physician in November 2010. In the October 2010 letter, Dr. C. stated that he had reviewed the Veteran's service treatment records, as well as his own treatment records, and opined that the Veteran's BPH and prostatitis are just as likely as not due to chronic prostatitis diagnosed while in service. Dr. C. reiterated his opinion in a February 2012 letter. Rationale was not provided in either instance. In another February 2012 letter, Dr. T., one of the Veteran's other treating physicians, opined that the Veteran's prostatitis started in service. No rationale was offered. Given the above favorable medical opinions, and the speculative nature of the previous opinions, the Veteran was afforded another VA examination in April 2012. He again reported the onset of prostatitis in service and continuing problems since. The examiner noted the above opinions. The examiner cited an April 2000 VA treatment note showing that the Veteran had been treated in September 1999 for complaints of dysuria for the past two years, that he had been treated for the dysuria by a private physician two years earlier, and that he had been prescribed medication but was not better. The examiner also cited a July 2001 VA urology note showing a long history of irritation in the urethra and a past diagnosis of NSU. Following physical examination, the examiner provided a diagnosis of resolved prostatitis, noting that there was no objective evidence of prostatitis on examination. The examiner then opined that the Veteran's claimed prostatitis is not due to the prostatitis in service. The examiner explained that the Veteran has not had prostatitis on the three most recent examinations, including the September 2011 VA examination, a February 2012 VA urology clinic examination, and the current examination. The examiner observed that the only documentation of prostatitis is a February 2007 report of examination by a private physician and the private physicians have not provided any rationale for their opinions. The examiner noted that the Veteran's separation examination was normal, there are no medical records regarding the Veteran's genitourinary system from 1974 to 2000, and the Veteran did not list this condition on his initial claim. Lastly, the examiner stated that there is no objective evidence of the onset of chronic prostatitis in service. First, post-service VA and private treatment records reflect findings of a current disorder diagnosed as prostatitis and BPH. Shedden element (1) is therefore met. Shedden element (2) is also satisfied as to this claim. Service treatment records reflect that the Veteran was treated for prostatitis during active service and examinations at that time showed an enlarged prostate, indicating BPH. A finding of a nexus between the Veteran's current prostatitis and BPH and the in-service treatment for prostatitis and findings indicating BPH is still needed to satisfy Shedden element (3) in this claim. As indicated above, the Board finds that the Veteran is competent to state that he has experienced symptoms of prostatitis, including burning and irritation, since service. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, although the record does not contain any medical evidence dated prior to 2000 documenting such complaints, the Board finds credible the Veteran's assertions of continuity of symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, there are conflicting medical opinions on whether there is a causal connection between the Veteran's current prostatitis and BPH and the prostatitis and findings indicating BPH in service. Initially, as the July 2008 and September 2011 VA examiners were unable to determine the etiology of the Veteran's prostate disorder without resorting to mere speculation, the reports of those examinations have little probative value. See Tirpak v. Derwinski, 2 Vet. app. 609, 611 (1992). Weighing against the Veteran's claim is an opinion of the VA physician who conducted the April 2012 VA examination. Although the examiner provided a detailed rationale for her negative opinion, it appears that she failed to consider the Veteran's statements of continuity of symptomatology since service, which have been found competent and credible. Instead, it appears that she relied almost exclusively on the absence of medical documentation after service, to include the finding that recurrence of the Veteran's prostate had not been shown. She emphasized that the only post-service documentation of prostatitis was in 2007. However, as indicated above, Dr. C. reported ongoing treatment for prostatitis and records received from Dr. T. show treatment for chronic prostatitis between February and May 2012. Considering that the negative finding focused on the absence of post-service symptomatology, but that the record does in fact document multiple visits for prostatitis and diagnoses of chronic prostatitis, the examiner's opinion is lessened. Weighing in favor of the Veteran's claim is an October 2010 opinion from Dr. C., his private treating physician, who reiterated his opinion in a February 2012 letter. However, Dr. C. did not provide a clearly discernible rationale for his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. C. did note that he had reviewed the Veteran's service treatment records, which in this case well document the Veteran's treatment for chronic prostatitis and findings indicating BPH. Also, presumably, Dr. C. has taken into consideration the Veteran's statements of continuity of symptomatology since service, which have been found competent and credible. Also in favor of the Veteran's claim is a February 2012 opinion from Dr. T. However, Dr. T. provided absolutely no rationale for his opinion. See id. In any event, the Board finds that the evidence is, at a minimum, at least in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Resolving doubt in the Veteran's favor, the Board finds that his prostatitis and BPH are causally related to active service. Accordingly, service connection for prostatitis and BPH is warranted. ORDER Service connection for prostatitis and BPH is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs