Citation Nr: 1305136 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 00-13 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a chronic genitourinary disability (claimed as a urinary tract or prostate disorder). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1974 to February 1978. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2003 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). During the course of the appeal the case was transferred to the RO in Milwaukee, Wisconsin. In November 2005, a Board hearing was held before the undersigned in Washington D. C. A transcript of the hearing is associated with the Veteran's claims file. The case was before the Board in March 2006, at which time the issue was remanded, and in December 2010, at which time the issue of service connection for urinary or prostate disorders was denied. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a November 2011 Order, following a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board's December 2010 decision regarding the denial of service connection for urinary or prostate disorders and remand the matter so that the Board could obtain an additional examination. In May 2012, the issue was again remanded so that additional medical records could be obtained and a VA examination be conducted. This was accomplished and the case has been returned for further appellate consideration. FINDINGS OF FACT 1. The Veteran manifested acute symptoms of urinary dysfunction and possible prostatitis during service, which are not shown to be related to the Veteran's current genitourinary symptoms. 2. The Veteran did not continuously manifest symptoms of a chronic genitourinary disability in the years immediately after service. 3. Adenocarcinoma of the prostate was first manifested by elevated PSA levels in 2009. 4. A chronic genitourinary disability is not shown to have been caused by any in-service event, including exposure to contaminated water at Camp Lejeune, North Carolina. CONCLUSION OF LAW A chronic genitourinary disability was neither incurred in nor aggravated by service nor may adenocarcinoma of the prostate be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. November 2002, April 2007 and December 2010 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The December 2010 letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured, or have been certified as being unavailable. The Veteran has also been afforded VA medical examinations in connection with the claim, most recently in July 2012. 38 C.F.R. § 3.159(c) (4) (2012). The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran's representative has challenged the adequacy of the most recent examination, the Board does not find the arguments to be compelling so that another examination needs to be obtained. The Veteran's representative argues that the examiner who conducted the July 2012 VA examination does not consider the Veteran's reported history of having had prostate complaints since service, but the examiner stated that the Veteran's claims folder and medical records had been reviewed. Moreover, as will be described, the Board does not find that the Veteran's history of continuous symptoms since service is credible. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cancer, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Service Connection for a Genitourinary Disability The Veteran contends that service connection should be established for a chronic genitourinary disability, which he has claimed as a urinary tract or a prostate disorder. It is pointed out that he was treated for urinary disability during service and was assessed with prostatitis while he was on active duty. In testimony before the undersigned at the Board hearing in November 2005, the Veteran noted that he had been treated for urinary problems while on active duty and stated that he was treated after service beginning in 1990. In, addition, it is contended that the Veteran's genitourinary disability is the result of chemical exposure he received while stationed at Camp Lejeune, North Carolina. Review of the Veteran's STRs shows that during service in 1974 and 1975 the Veteran was treated for complaints of urinary disorders. In October 1975 it was noted that he had had a history of nocturia five to six times per night with difficulty sleeping. He had no pain, but he had had a urinary tract infection in October 1974 and an episode of urethritis in February 1975. Examination was grossly normal, but the prostate was 1+ enlarged, but extremely tender. The impression was questionable prostatism or prostatitis. On examination for separation from service, examination of the genitourinary system and prostate was normal. The Veteran's service records confirm that, while on active duty, he was stationed for a time at Camp Lejeune, North Carolina. Post-service medical evidence includes VA outpatient treatment records dated in October 2002 and June 2003 when the Veteran was treated for complaints of urinary frequency. In June 2003, the Veteran reported that he continued to complain of nocturia and frequency and was seen in the clinic in April 2002 and placed on the medication Hytrin. The examiner reviewed the Veteran's history of complaints during service in 1974 and stated that it was possible that the Veteran had had recurrent prostatitis or chronic prostatitis, with the initial episode in 1974 being under-treated. An examination was conducted by VA in June 2004. At that time the examiner was asked to render an opinion regarding whether the Veteran's chronic recurrent prostatitis or urinary condition had begun while in service. The Veteran reported that 28 years earlier, while in service, he had increased frequency of urination. He reported having had some intermittent burning, incomplete emptying, and occasional urge incontinence four to five times per month. The assessment was that, while the Veteran had had complaints of chronic prostatitis, urinalysis and PSA testing showed no evidence of prostatitis. The symptoms were, however, consistent with prostatitis. The examiner opined that the Veteran's prostatitis was not caused by service in the military. The examiner explained that there was nothing in the medical literature to connect the Veteran's current prostatitis with military service years earlier. Pursuant to the March 2006 remand by the Board, an examination was conducted by VA in January 2009. At that time, it was reported that the Veteran had been treated twice for venereal urethritis in 1975, during service. Also in service in 1977 he had undergone a circumcision because of recurrent foreskin infections. His separation physical did not indicate any genitourinary problems. He stated that he had had frequency of urination ever since service. He stated that in more recent years, he had experienced urgency. In addition, the Veteran stated that he had nocturia three times per night, incomplete emptying, and a slow stream. The examiner reviewed the Veteran's medical records and found no treatment for lower urinary tract problems except that at one time the Veteran had been prescribed the medication Flomax. A recent VA rectal examination had revealed a small prostate. BUN and creatinine levels, estimated glomerular filtration rate, and urinalyses were unremarkable. The impressions were venereal urethritis times two during military service, resolved; infection of the foreskin during active military service, post circumcision, resolved; and prostatism, accounting for current urinary tract symptomatology, unrelated to venereal urethritis or infected foreskin during active military service. The record contains a significant amount of literature regarding water contamination at Camp Lejeune, North Carolina by chemical solvents. Of note are articles by the National Academy of Sciences that assess the potential health effects of contaminated water supply. The reports include the results of studies performed during 2003 and 2008 that were interpreted as showing that there was inadequate or insufficient evidence to determine whether an association existed between chronic exposure to the chemical trichloroethylene, with which the drinking water at Camp Lejeune was contaminated, and prostate cancer. An examination was conducted by VA in May 2010. At that time it was reported that the Veteran continued to have diminution of urinary stream, nocturia four times per night, and frequency during the day. His PSA levels had become elevated, being borderline in October 2008 and elevated in October 2009. He had been seen in consultation at the VA urology clinic when a firm lump of the right sulcus near the apex was noted. He was to undergo biopsy in several weeks. The examiner noted that the report of contaminated water at Camp Lejeune had been reviewed and that there was no confirming evidence of a relationship of toxins noted in the water and benign prostatic hypertrophy noted. The impression was that it was unlikely that contaminated water supply had contributed to the Veteran's benign prostatic hypertrophy and that there was a question regarding possible prostatic carcinoma. VA outpatient treatment records show that the Veteran was treated for urinary frequency in February 2009 and that he began having notable elevations in his PSA levels during 2009. In May 2010, he diagnosed by biopsy with prostate adenocarcinoma. An examination was conducted by VA in July 2012 for an opinion regarding whether the Veteran's current genitourinary diagnoses were manifestations of, or medically related to, obstructive voiding problems and possible prostatism and/or prostatitis clinically noted in service. After review of the claims folder, the examiner stated that the Veteran's claimed condition was less likely than not incurred in or caused by in-service injury, events or illness. The rationale given was that, although there were in-service medical notes of obstructive voiding symptoms that were possibly related to prostatism and/or prostatitis in 1975, the symptoms occurred in the context of recently sexually transmitted gonococcal urethritis, which was often associated with an infectious prostatitis. The examiner noted that, in October 1975, the prostate was very tender on examination and that other organisms that were not detectable at that time, and not susceptible to the Veteran's prior penicillin treatment, were likely present and could account for the Veteran's prolonged symptomatology. In more recent years, the Veteran's symptoms were predominately related to age related enlargement of the prostate and, most recently, adenocarcinoma of the prostate and its treatment. The examiner concluded with the observation that there had been no known recurrent sexually transmitted disease or chronic prostatitis. The Board finds that the Veteran had episodes of a genitourinary disability in service in the form of urinary difficulties and probable prostatitis that are not shown to be related to the later development of prostatitis or carcinoma of the prostate. The two medical opinions that have been obtained by VA regarding the possibility of a direct link are negative as to a relationship between the current disability and the symptoms demonstrated during service. The opinions are basically to the effect that the Veteran had infectious prostatitis in service as a result of gonococcal urethritis, which resolved after treatment. The Veteran has given a history of prostatitis symptoms over the years since service. His testimony before the undersigned in 2005 was that his current symptoms had begun in approximately 1990, 12 years after his discharge from active duty. The Board finds that the Veteran's recollections concerning the onset of pertinent symptoms are not reliable or credible, as they are so divergent in identifying an onset date or continuity of symptoms. None of his recollections many years after the fact are more reliable than any others. As such, it is found that the evidence does not show that the in-service symptoms are related to the current disability. In addition, there is no basis to find that the Veteran's current symptoms of prostate cancer are related to exposure to contaminated water to which the Veteran was exposed while he was stationed at Camp Lejeune, North Carolina. The medical literature of record does not establish that there is a relationship, but indicates that there is insufficient evidence for such a determination to be made. The medical opinion obtained in May 2010 is also negative regarding a relationship between prostatitis and contaminated water. As the evidence does not provide a basis for the establishment of service connection, the claim must be denied. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a genitourinary disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a chronic genitourinary disability (claimed as a urinary tract or prostate disorder) is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs