Citation Nr: 1301146 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 08-06 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a prostate disorder. 2. Entitlement to service connection for a heart disorder manifested by an irregular heartbeat. ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 2004. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. These claims were remanded by the Board in September 2009 and August 2011 so that additional development of the evidence could be conducted. The Board finds, as concerning the service connection claim for a prostate disorder, that there was substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds, however, that concerning the claim seeking service connection for a heart disorder manifested by an irregular heartbeat, there was not substantial compliance, and, as a result, another remand is unfortunately necessary. Id. A claim seeking service connection for a low back disorder which was addressed in the Board's August 2011 remand was granted by the RO in an August 2012 rating decision. As such, this claim is no longer before the Board for appellate consideration. The issue of entitlement to service connection for a heart disorder manifested by an irregular heartbeat 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 There is no competent or credible evidence of a nexus between the post service diagnosis of a prostate disorder (variously diagnosed as benign prostate hypertrophy and prostatitis) and service, and evidence of continuity of symptomatology is not shown. CONCLUSION OF LAW A prostate disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As for the claim seeking service connection for a prostate disorder, which is here being denied, in a May 2006 letter the RO notified the Veteran of the information and evidence to substantiate his service connection claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The letter advised the Veteran to submit or identify any additional information that he felt would support his claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also included the following enclosures: "How You Can Help and How VA Can Help You," and "What the Evidence Must Show - Service connected compensation." The letter also included timely Dingess notice. For the reasons discussed above, therefore, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to the VA notice. There is no evidence of any failure on the part of VA to further comply with the duty to notify that reasonably affects the outcome of this case. The duty to assist the appellant has also been satisfied in this case. The service treatment records and all available post-service medical records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claim. The Board further observes that the Veteran was afforded a VA "DBQ" (Disability Benefits Questionnaire) examination in November 2011. The supplied medical opinion was predicated on a review of the claims file and all pertinent evidence of record. The supplied medical opinion, which followed the Veteran having been examined, also is shown to have provided adequate medical information/opinions needed to adjudicate the affected claim. Also, the opinions included detailed consideration and discussion of the Veteran's service treatment records, as well as post service medical findings. For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Contentions The Veteran contends that he suffers from a prostate disorder as a result of his active military service. See March 2006 VA Form 21-526. As part of a VA Form 21-4138, dated in July 2006, while the Veteran claimed to have been treated for prostatitis throughout his military career, he added that he had not been treated for this condition since his April 2004 retirement. Laws and Regulations Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Although the Veteran asserts that his current prostate disorder is related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Factual Background The service treatment records include an October 1976 general therapy clinic treatment note. The Veteran at that time was seen for urethral discharge for a period of one week. Urinary tract infection and rectal mass were both ruled out. A December 1976 primary care clinic note reveals that the Veteran was treated for complaints of urethral discharge; questionable prostatitis was diagnosed. An October 1999 outpatient record shows a diagnosis of prostatitis. A March 2006 Federal outpatient treatment record does not include a prostate-related condition among those listed as previously diagnosed disorders. Similarly, Federal outpatient treatment records, dated in 2007 (June, July, August, and December) and in February 2008, do not include benign prostatic hypertrophy among the problems listed. Other Federal outpatient treatment records, dated in August 2008 and 2009 (January, June and October) however, all show benign prostatic hypertrophy among the problems listed. Pursuant to the Board's August 2011 remand, the Veteran was scheduled for a VA examination to ascertain the etiology of any current prostate disorder. The report of this "DBQ" (Disability Benefits Questionnaire) examination, dated in November 2011, shows that the examiner observed that the Veteran was seen in service several times for episodes of urethral discharge, and that a 1977 treatment note indicated that the Veteran appeared to have prostatitis. It was added that he was treated at that time and his symptoms resolved. The examiner also observed that from 2008 onward the Veteran was seen to have urinary symptoms without urethral discharge; these symptoms were noted to be consistent with urinary obstruction. Post service treatment for benign prostatic hypertrophy with appropriate medication was also mentioned. The examiner also found that the Veteran had not been treated post service for his prostatitis, which was treated during the first part of his active duty (1977). The examiner opined that the Veteran's claimed prostate disorder was less likely than not incurred in or caused by either an in-service injury, event, or illness. As rationale for this opinion, the examiner noted that the Veteran's in-service prostatitis was due to bacterial infections of the male reproductive tract, and this was treated and resolved. The current diagnosis of benign prostatic hypertrophy, added the examiner, was a separate entity not related to infection of the prostate and was treated with an entirely different approach and category of medicine. The two entities were noted to be entirely unrelated, as well as separated in time by nearly three decades. Analysis As above discussed, a November 2011 negative medical opinion has been supplied by a VA examiner concerning the Veteran's claimed prostate disorder. An opinion including positive nexus findings has not been associated with the evidence of record. Alternatively, as noted, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. The Veteran in July 2006 informed VA that he had not been treated for prostatitis since his April 2004 service separation. The evidence also shows that he was first treated for a prostate disorder following his service separation in June 2008. This first shown treatment is more than four years after his service separation. The Veteran's affirmative denial of post service treatment in July 2006 suggests an absence of symptoms referable to a prostate-related disorder. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan, Washington, 19 Vet. App. at 368-69. The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Although the Veteran asserts that his current benign prostatic hypertrophy is related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu. He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. Layno. Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker, Cartwright. The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the record is devoid of objective evidence of any prostate-related symptomatology until more than four years after service. As such, the Board finds that any assertions by the Veteran as to possible etiology of his benign prostatic hypertrophy to be less than competent. In this case, the Veteran clearly has a current prostate-related disorder, namely, benign prostatic hypertrophy. See November 2011 VA DBQ examination report. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. As above noted, the VA DBQ examiner in November 2011 opined that it was "less likely than not" that the Veteran had a prostate disorder, to include benign prostatic hypertrophy, which was caused by his military service. The Board notes that the Veteran has submitted no opinion to the contrary. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, as mentioned, the medical evidence does not show treatment or diagnosis of prostate-related problems until several years after service. Thus, the record is absent of evidence of continuity of symptomatology, and medical evidence of a nexus between service and the currently-diagnosed benign prostatic hypertrophy. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for a prostate disorder is denied. REMAND As noted above, the Board most recently remanded the Veteran's claim seeking service connection for a heart disorder manifested by an irregular heartbeat in August 2011. At that time the Board noted that the Veteran claimed to suffer from a heart disorder resulting in an irregular heartbeat. During the development of the instant claim, the Veteran was noted to have been provided a VA fee-basis examination in July 2006, during which he was provided stress test. The examiner noted that testing at the time was normal (chest X-ray was normal, and exercise stress electrocardiography testing also showed normal findings), and no diagnosis of a heart disorder was offered. However, the examiner also noted the Veteran reported that both EKG and Holter monitor had previously confirmed a diagnosis of arrhythmia, and the Board notes that various abnormal EKG test results are included in the Veteran's service treatment records. Concerning the Veteran's claimed irregular heartbeat disorder claim, the examiner commented that a diagnosis was not possible because he had not been provided access to the abnormal EKG and/or Holtor monitor data. However, noted the Board in August 2011, it appeared that the VA examiner in July 2006 was not provided the Veteran's service treatment records for review. Review of the Veteran's service medical records includes findings of EKG (electrocardiogram) test reports, dated in June 1990, May 1996, and December 2003. The findings showed sinus bradycardia (June 1990); sinus bradycardia, left axis deviation, and consider early repolarization (May 1996); and sinus bradycardia (December 2003). The Board in August 2011 instructed VA to schedule the Veteran for a VA examination to ascertain the nature and etiology of any current heart disorder. In part, the instructions added that "All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished." The examiner was also asked to provide an opinion as to whether it was "more likely than not," less likely as not," or "as likely as not" that any current disorder of the heart is "etiologically related to the Veteran's active military service, to include in-service abnormal test results." The Veteran was afforded a VA DBQ examination in November 2011. Review of the examination report shows that the examiner noted that, in 2003, the Veteran had been diagnosed with left axis deviation shown on EKG testing. The examiner commented that abnormal EKG has been diagnosed on different occasions over several years for early repolarization based on ST-T wave abnormalities and left axis deviation without a definite diagnosis or cardiac event. The examiner additionally commented that the Veteran had an irregular heartbeat diagnosed while in the military, and that Holtor monitoring had not showed any specific abnormalities. He added that VA had ordered stress testing to be performed in 2007. Review of the claims file shows that this testing appears to have been conducted in 2006 (see July 2006 QTC report). The November 2011 examination report also included the following language: For VA purposes, exams for all heart conditions require a determination of whether or not cardiac hypertrophy or dilation is present. The suggested order of testing for cardiac hypertrophy/dilatation is EKG, then chest x-ray (PA and lateral), then echocardiogram. An echocardiogram to determine heart size is only necessary if the other two tests are negative. The examiner further noted that upon examination cardiac hypertrophy was present, documented on EKG testing. These findings showed left axis deviation described with ST-T wave abnormalities. Chest X-ray findings, also from November 2011, were reported to be normal. The examiner commented that an abnormal EKG was also diagnosed while the Veteran in serving on active duty, and that no definitive diagnosis has been made. The examiner checked the box which indicated "The claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." As rationale for this supplied opinion, he commented that the Veteran has an EKG abnormality of mild left axis deviation present on current EKG that was first identified and diagnosed in service. The VA staff physician who provided the November 2011 opinion also supplied another opinion, by means of an addendum report, in October 2012. The addendum report was to supply a "definitive diagnosis." The physician observed that review of the record showed an incidental finding on non specific EKG changes during a pre operative screening for a cyst removal in 2003. A cardiology consult in 2004 noted that the then current EKG was not changed from the 1986 EKG. The physician also noted that the Veteran at that time denied significant chest pain consistent with ischemia. He also denied dyspnea on exertion or shortness of breath and had no trouble running. No history of syncope was reported. The examiner concluded by stating that There is no current history, symptoms, diagnosis or treatment of a cardiac condition. In review of the record, the EKG findings alone do not constitute a cardiac condition. If a diagnosis later emerges and is related to the veteran's EKG findings while in service, it would be beneficial to review the record again. Therefore, EKG findings alone do not constitute a diagnosis. There is no diagnosed cardiac condition at this time. While the November 2011 VA examiner, as part of the later-supplied October 2012 addendum report essentially found that there was no "current history, symptoms, diagnosis or treatment of a cardiac condition," the Board is mindful of the language found as part of the November 2011 examination report, namely For VA purposes, exams for all heart conditions require a determination of whether or not cardiac hypertrophy or dilatation is present. The suggested order of testing for cardiac hypertrophy/dilatation is EKG, then chest x-ray (PA and lateral), then echocardiogram. An echocardiogram to determine heart size is only necessary if the other two tests are negative. In this case, while chest X-ray findings from November 2011 were reported to be normal, the EKG findings were abnormal. Echocardiogram testing was not accomplished in the course of the November 2011 examination. Regarding this, the Board observes that the August 2011 remand instructions included the following language: "All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished." Without such echocardiogram test findings being of record, the Board is of the opinion that additional testing needs be accomplished, so that it can be definitively determined whether or not the Veteran in fact currently has a diagnosed cardiac disorder. To this, the Court of Appeals for Veteran Claims (Court) has held that once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). As such, the Veteran must be provided a new VA examination to determine whether he currently suffers from a heart disorder and, if so, whether such disorder is etiologically related to his active service. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should schedule the Veteran for a VA examination to ascertain the nature and etiology of any current heart disorder. The claims file, including this REMAND, must be made available to the examiner for review, and the examination report should reflect that such review was accomplished. All appropriate tests and studies should be conducted (to include EKG, chest X-ray and echocardiogram), and any consultations deemed necessary should be accomplished. The examiner should indicate whether the Veteran has any current disorder of the heart, and provide a diagnosis. The examiner should also provide an opinion as to whether it is at least as likely as not that any currently diagnosed disorder of the heart is etiologically related to the Veteran's active military service, to include in-service abnormal test results. Any opinions expressed by the examiner must be accompanied by a complete rationale. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions provided would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. To help avoid future remand, the RO/AMC must ensure that the required action has been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall. 3. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the required actions, and after conducting any additional development necessary based on the information obtained, the RO/AMC should readjudicate the Veteran's claim concerning entitlement to service connection. If the benefit sought on appeal remains denied, the Veteran should be issued a supplemental statement of the case (SSOC) and given an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required on his part until he is notified. The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs