Citation Nr: 1303206 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-38 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for benign hypertrophy of the prostate. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to an initial compensable rating for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 and March 1972 and from June 1991 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied entitlement to service connection for a bilateral knee disability, a right shoulder disability, and benign hypertrophy of the prostate, and granted service connection for bilateral pes planus, with a noncompensable rating assigned, effective June 30, 2006. Although the June 2007 rating decision covered 14 separate issues, the Veteran limited his appeal to the four listed above in an October 2008 VA Form 9. The Board notes that the Veteran originally filed a claim for service connection for "prostate problems" and loss of use of a creative organ. In the June 2007 rating decision, the RO recharacterized the claimed "prostate problems" as a claim for service connection for erectile dysfunction and benign hypertrophy of the prostate based on the relevant, current diagnoses. The Board notes that service connection for erectile dysfunction and entitlement to compensation based on loss of use of a creative organ were among the issues the Veteran did not appeal. Therefore, they will not be considered herein. The issue of service connection for a bilateral knee disability, service connection for a right shoulder disability, and entitlement to an initial compensable rating for bilateral pes planus 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. FINDING OF FACT Benign hypertrophy of the prostate did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSION OF LAW Benign hypertrophy of the prostate was not incurred or aggravated in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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). In a letter issued in August 2006, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the August 1006 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. All relevant and available records, including VA and private treatment records, have been associated with the physical claims file or in Virtual VA. Although the Veteran had identified treatment with Dr. J.H., an August 2006 response from the physician stated that he was not a patient of that physician. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to these claims despite being advised in the August 2006 letter that he should submit such information. The Board concludes that VA has discharged its duty to assist the Veteran in obtaining relevant evidence on his behalf. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not been afforded a VA examination or medical opinion in response to his claim for service connection for benign hypertrophy of the prostate, but no such examination or opinion is required. While a current disability has been demonstrated, there is no evidence of any symptoms or related treatment during service or for almost 15 years after discharge. The Veteran has not reported, nor is there any evidence of a continuity of symptomatology or a nexus between the disability and service. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection-Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Benign Hypertrophy of the Prostate VA treatment records beginning in October 2006 demonstrate an active disability of benign hypertrophy of the prostate, although there is no indication of relevant treatment provided. Therefore, the first element of service connection-a current disability-has been established. The evidence, however, does not demonstrate the incurrence of benign hypertrophy of the prostate during service or that his current disability is etiologically related to service. Service treatment records are negative for any treatment, symptoms, or diagnoses related to the disability. The Veteran has not reported any treatment or diagnosis of benign hypertrophy of the prostate during service. The claims file contains private and VA treatment records from the years between service and the first indication of the disability, including treatment related to the prostate. For example, the Veteran was diagnosed with acute prostatitis in February 1993, which resolved. In November 1998, the Veteran reported treatment for impotence 10 years prior. However, the Veteran did not and has not reported, and the record does not demonstrate, any contemporaneous evidence of the disability until the October 2006 VA treatment record. Moreover, the Veteran has not reported a continuity of symptomatology or any specific contentions regarding how his current benign hypertrophy of the prostate is related to service. The Veteran has claimed that benign prostatic hypertrophy may be related to his exposure to herbicides in service. The Veteran served in the Republic of Viet Nam during his initial period of active duty and is presumed to have been exposed to herbicides. See 38 C.F.R. § 3.307 (2012). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (2012). These diseases do not include benign prostatic hypertrophy. The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for other disabilities. The National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of any other disabilities. See Notice, 75 Fed. Reg. 32540 (2010). The Veteran has provided no competent evidence reflecting that benign prostatic hypertrophy is related to inservice herbicide exposure. The Veteran first claimed entitlement to service connection for "prostate problems" in June 2006, almost 15 years after discharge. The first evidence of benign hypertrophy of the prostate was in the October 2006 VA treatment record. As noted above, the RO recharacterized the issue to include benign hypertrophy of the prostate based on the prostate-related diagnoses of record. Given the lack of medical evidence in support of the claim and the absence of consistent reports of in-service incurrence or continuity, the evidence is against a finding of a an in-service injury or nexus between the Veteran's current benign hypertrophy of the prostate and service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). As there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for benign hypertrophy of the prostate is denied. REMAND The Veteran has not been provided with a VA examination regarding his bilateral knee claim. The record demonstrates current bilateral knee osteoarthritis, in-service complaints of knee pain, and the Veteran's contentions that the two are linked. Therefore, the Board finds that he must be provided with an examination in order to obtain an opinion regarding the etiology of his current right knee disabilities. In addition, the Veteran received a VA examination regarding his right shoulder claim in March 2007. The examiner concluded that he would be unable to opine that the present shoulder disability was the direct or proximate result of the one episode of shoulder strain described in the records without resorting to speculation. However, the examiner did not provide a rationale of this opinion. In this regard, if an examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's right eye pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Therefore, a new VA examination is required in order to obtain an etiology opinion. Finally, the Veteran received his first VA foot examination in March 2007, whether the examiner stated that any additional limitations of function during a flare-up could not be determine without resort to speculation. Then, in a December 2011 VA DBQ pes planus examination, the examiner indicated that there was accentuated pain on use. However, the examiner did not provide any further information regarding this opinion, which is not necessarily supported by the evidence currently of record. Moreover, the examiner stated that the Veteran's symptoms were not relieved by the use of arch supports. However, he did not indicate whether this was occurring in one or both feet as requested. The Board finds that further explanation for this opinion or finding, including the Veteran's reports or other medical evidence supporting such a finding is required. The Board requests that this opportunity is taken to obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, provide the Veteran with a VA orthopedic examination with a qualified physician to determine whether any current bilateral knee or right shoulder disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is requested to list all current bilateral knee and right shoulder disabilities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current knee or right shoulder disability had onset in service or is otherwise related to a disease or injury in service. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. Once all available evidence has been obtained and associated with the claims file, the Veteran should be scheduled for a VA examination to determine the current severity of his bilateral pes planus. The examiner should review the claims file and note such review in the examination report or in an addendum. The examiner should report all current findings related to bilateral pes planus and provide an opinion as to the current severity of the disability. The examiner should specifically note whether there is objective evidence of marked or pronounced deformities, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances on one or both feet. The examiner should provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so. The examiner should provide an opinion as to whether bilateral pes planus would prevent the Veteran from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should provide a rationale for this opinion. 4. The agency of original jurisdiction (AOJ) should review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand. 5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The Veteran 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 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 2002 & Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs