Citation Nr: 1306789 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-11 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE 1. Entitlement to service connection for a chronic low back disability. 2. Entitlement to service connection for a chronic prostate disorder, to include benign prostatic hypertrophy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to December 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic low back disability and a chronic prostate disorder. In September 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development, including to obtain outstanding pertinent medical records and to schedule the Veteran for a VA orthopedic examination in order to obtain a nexus opinion. Following this development, the claims of entitlement to service connection for a chronic low back disability and a chronic prostate disorder were readjudicated and denied in a January 2013 rating decision/supplemental statement of the case. The case was returned to the Board in January 2013 and the Veteran now continues his appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. A chronic low back disability was not documented in service, degenerative joint disease of the lumbosacral spine was not diagnosed within one year of service discharge, and the competent and credible evidence fails to establish an etiological relationship between the Veteran's current low back disability and active service. 2. A chronic prostate disorder, to include benign prostatic hypertrophy, did not have its onset during active military service. CONCLUSIONS OF LAW 1. A chronic low back disability, to include degenerative joint and disc disease of the lumbosacral spine, was not incurred, nor is it presumed to have been incurred in active duty. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A chronic prostate disorder, to include benign prostatic hypertrophy, was not incurred in active duty. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duties to notify and to assist. The Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the issues on appeal, generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The claims of entitlement to service connection for a chronic low back disability and a chronic prostate disorder decided herein were filed in July 2009. A VCAA notice letter addressing the applicability of the VCAA to this claim and of VA's obligations to the appellant in developing the claim was dispatched later in July 2009, which fully satisfied the above-described mandates. Furthermore, there is no timing of notice defect as the July 2009 letter preceded the initial adjudication of the claims in the October 2009 RO rating decision now on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the claimant of its duty to assist in obtaining records and supportive evidence. In its September 2010 remand, the Board instructed the RO/AMC to attempt to obtain VA records, including from the Fargo, North Dakota, VA Medical Center, for the period from 1958 to the present, and any outstanding private medical records relating to the Veteran's treatment for prostate and low back symptoms, and to provide him with a VA medical examination of his spine for purposes of obtaining a medical nexus opinion. In this regard, the Board observes that the claimant's service treatment records and relevant private and VA medical records for the period from 1994 to 2012 have been obtained and associated with the claims file. VA provided the Veteran with a VA examination in September 2009, from which a diagnostic nexus opinion addressing the prostate disorder claim at issue was obtained. An addendum to this opinion was obtained in August 2010. The physician who conducted the September 2009 examination and provided both the September 2009 nexus opinion and the August 2010 addendum had the opportunity to review the Veteran's claims file and his nexus opinion addressing the relationship between the Veteran's military service and the claimed prostate disability at issue is supported by an objective rationale based on the physician's review of the Veteran's pertinent clinical history. VA has also provided the Veteran with a VA examination in October 2012, from which a diagnostic nexus opinion addressing the low back disability claim at issue was obtained. The clinician who conducted this examination and provided the nexus opinion had the opportunity to review the Veteran's claims file and his nexus opinion addressing the relationship between the Veteran's military service and the claimed low back disability at issue is supported by an objective rationale based on the clinician's review of the Veteran's pertinent clinical history. Furthermore, absent a challenge to the expertise of an examiner, which the appellant has not presented, the Board may assume the competence of VA examiners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding that where a veteran does not challenge a VA medical expert's competence or qualifications, VA need not affirmatively establish that expert's competency). Thus, the Board finds no defect in the aforementioned examinations of record and the nexus opinions obtained therefrom and they are deemed to be adequate for purposes of adjudicating the VA compensation claims decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Pursuant to the Board's Remand, the RO/AMC conducted a search for VA records, including from the Fargo, North Dakota, VA Medical Center, for the period from 1958 to the present, relating to the Veteran's alleged treatment for his prostate and back symptoms. That search produced no records showing such treatment despite the RO/AMC's good faith attempt and a VA memorandum making a Formal Finding of Unavailability in this regard was written and associated with the claims file in December 2012. Additional good faith attempts were also conducted to obtain any outstanding private medical records pertinent to the Veteran's claims and to the extent that any such records were obtained, these have been duly associated with the evidence. Thusly, in view of the evidentiary development undertaken, the Board concludes that the RO/AMC has substantially complied with the September 2012 remand instructions and that an additional remand for corrective action is unnecessary. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his service connection claims decided herein, and thus no additional assistance or notification is required. The claimant has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection laws and regulations. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any documentation of treatment for complaints of back pain or genitourinary symptoms during active duty will permit service connection for a chronic low back disability or prostate disorder, first shown as a clear-cut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as arthritis (to include degenerative joint or disc disease), manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303 , 3.304, 3.307 and 3.309(a). Service connection for arthritis may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). (a.) Entitlement to service connection for a chronic low back disability. As relevant, the Veteran's service treatment records show that his spine and musculoskeletal system were clinically normal on enlistment examination in January 1955. No reference was made in the records for the entirety of his active service of any treatment for low back complaints or problems. The report of his December 1958 separation medical examination shows normal spine and musculoskeletal system. The Veteran was discharged from active duty the same month. The Veteran filed his claim for VA compensation for a chronic low back disability in July 2009. He alleges that he received treatment for low back complaints during service in 1957 at a naval medical dispensary while serving aboard ship and stationed at port in San Diego, California. He claims that he has had continuity of low back symptomatology from that time forward. In a December 2009 statement, his spouse reported that they were married in 1960 and that since that time he would complain frequently of back pain, with chiropractic treatment for his back symptoms in the 1980s. The earliest documented notation of back complaints presented in the post-service medical records associated with the Veteran's claims file is a 2005 private treatment report reflecting that the Veteran had been administered an epidural injection to his lower back relieve pain associated with spinal stenosis. While he provided a history of chronic low back pain, he made no reference to his active service or the duration of his back problems. Thereafter, private and VA medical records dated 2006 to 2012 reflect relevant orthopedic diagnoses that included the aforementioned spinal stenosis as well as degenerative joint disease, degenerative disc disease, and disc bulging affecting his lumbosacral spine. The Board notes that this juncture that the Veteran has alleged post-service treatment from private medical sources for his back pain as early as the 1980s, as well as VA treatment in the late 1950s for the same. As previously stated, an attempt in good faith was undertaken by the RO/AMC to obtain these alleged outstanding records, which was ultimately unsuccessful. The report of an October 2012 VA orthopedic examination shows that the examining clinician had thoroughly reviewed the Veteran's entire claims file. The examiner noted that the Veteran was unable to identify a precipitating event in his history that caused his low back disability and found no documentation showing any such precipitating injury. Following a physical examination, the examining clinician diagnosed the Veteran as having back strain of his thoracolumbar spine. He then opined that it was less likely than not (less than a 50 percent probability) that the Veteran's chronic thoracolumbar spine disability was incurred in or caused by the claimed in-service injury, event, or illness. The rationale presented was that in consideration that there are no records of low back injury on active duty, and in consideration of the fact that his physical examination at release from active duty was completely silent for any defects or disabilities relating to his spine and musculoskeletal system, the clinician's opinion was that the Veteran's claimed chronic low back disability was less likely than not incurred in or caused by military service. The Board has considered the totality of the evidence and finds that the weight of the objective clinical evidence is against the Veteran's claim for service connection for a chronic low back disability. As previously noted, his service medical records show normal spine on clinical examination at entry and on separation from active duty, and absolutely no treatment for any low back complaints during his entire period of naval service. Following his discharge from the armed forces in December 1958, the available post-service medical records do not show documented indications of treatment for low back pain until 2005. According to the Veteran's own account, he did not seek medical treatment for his low back pain until the 1980s. The Board has considered the Veteran's statements and those of his spouse regarding onset of low back pain in or shortly after service with continuity of symptoms thereafter. In the absence of objective medical records establishing onset in service or continuity of symptomatology, a lay statement attesting to such may be sufficient in itself to establish a nexus with service if the statement is both credible and within the competence of the person presenting the statement to make. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certainly, the Veteran is competent to describe his own subjectively perceived symptoms, such as back pain, and their time of onset. However, his statements that he experienced onset and continuity of chronic low back pain since service are not credible. The Veteran's account is contradicted by the documented medical record, which shows no such history of treatment for low back pain in service or for many years thereafter. To the contrary, the service treatment records document that the Veteran was seen on multiple occasions sought treatment for complaints related to acne, gonorrhea, and skin rash. This shows that he was not adverse to seeking out medical treatment. Had he had been experiencing low back pain in-service as he alleges, one would think he would have sought out care. The Board similarly notes that private treatment records dated from 1995 to 2002 make no mention of a chronic low back problem but do indentify several other health problems. Again, it stands to reason that there would have been some mention of a low back disorder, especially if it had been an ongoing problem for nearly 50 years. Therefore, the Board finds the Veteran's account of onset of low back pain in service and the account of the Veteran and his spouse regarding continuity of low back symptoms since service to be non-credible for purposes of establishing a nexus between his chronic low back disability and his period of active duty. Having determined that the Veteran's alleged clinical history regarding onset and continuity of low back pain since service is not credible, to the extent that he asserts on his own authority, based on his own personal knowledge of the particulars of his individual case, that his chronic low back disability is related to service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of internal medicine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose). The Veteran's statements in this regard are thus entitled to no probative weight. The Board has reviewed the objective medical evidence and finds that it does not establish a link between the Veteran's chronic low back disability and his period of military service. The October 2012 VA medical examination presents a nexus opinion predicated on the examiner's review of the Veteran's clinical history, which confers great probative weight upon his medical determinations. His opinion states, in essence, that the absence of objective documentation during service of a precipitating low back injury and the fact that the Veteran's spine was examined and found normal on separation from active duty weighs heavily against linking his current thoracolumbar diagnoses with his military service. Thusly, the VA clinician concluded that it is less likely as not that the Veteran's current thoracolumbar spine condition is related to his period of active duty. The Board furthermore finds that there is no objective medical evidence demonstrating that degenerative joint and disc disease associated with the Veteran's current low back disability had their onset to a compensable degree within one year of his discharge from active service. In view of the foregoing discussion, the Board concludes that an award of VA compensation is not warranted for the Veteran's chronic low back disability, to include degenerative disc and joint disease of the lumbosacral spine. The clinical evidence establishes that this orthopedic disability did not originate in service or have its onset within one year after service, and is not otherwise related to service. His claim of entitlement to service connection for a chronic low back disability must therefore be denied. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (b.) Entitlement to service connection for a chronic prostate disorder, to include benign prostatic hypertrophy. The Veteran's service medical records show that his prostate gland and genitourinary system were normal on enlistment examination in January 1955. Thereafter, the records reflect that he was treated with antibiotic therapy on several occasions for acute urethritis (some episodes associated with a gonococcus infection (gonorrhea)) in June 1955, November 1955, January 1957, and February 1957. Notwithstanding this history, his prostate and genitourinary system were examined and found normal on separation from active naval service in December 1958. Over 50 years following his discharge from the armed services, the Veteran filed his claim for service connection for a chronic prostate disorder in July 2009. Post-service VA and private medical records show documentation of treatment for prostatitis and prostatism beginning in 1994, with continued ongoing treatment for prostate symptoms and a diagnosis of benign prostatic hypertrophy in November 2004. Although the Veteran's family history is positive for benign prostatic hypertrophy and prostate cancer, tests for prostate cancer conducted as recently as 2012 are negative for carcinoma. The Veteran now contends that his treatment in service for urethritis was, in fact, at least on one occasion for a prostate disorder that was misdiagnosed as urethritis. He reports continuity of painful prostate symptoms since this treatment in service for urethritis to the present day and maintains that there is an etiological relationship between the urethritis in service and his current diagnosis of benign prostatic hypertrophy. His spouse has also stated in a December 2009 witness statement that the Veteran had problems with his prostate for as long as she could remember since their marriage commenced in 1960. The report of a September 2009 VA genitourinary examination shows that following his review of the Veteran's claims file and examination of the Veteran, a VA physician presented a diagnosis of status post gonococcal and non-gonococcal urethritis treated in active service with no subsequent post-service recurrence. In an August 2010 addendum, the VA physician stated that it was his opinion that the Veteran's episodes of urethritis in service were correctly diagnosed based on laboratory test results performed in association with these treatments. The physician affirmed that there records presented no documentation of a co-existing prostatitis in service with the urethritis diagnosed. Although the physician conceded that the absence of such documentation did not necessarily mean that the Veteran could not have also had prostatitis in service, the physician furthermore stated that he could find no medical authority to support the Veteran's assertion that his current benign prostatic hypertrophy could be related to his alleged prostatitis in service, assuming that prostatitis had occurred in service. Therefore, it is less likely as not that any assumed prostatitis in service could have ultimately resulted in benign prostatic hypertrophy. The Board has considered the foregoing evidence and finds that the weight of the clinical evidence is against the Veteran's claim for service connection for a chronic prostate disorder. There is a complete absence of any abnormal findings relating to his prostate and genitourinary system on enlistment and separation examination. As previously discussed, a VA physician has presented an opinion that completely disassociates the Veteran's documented treatment for urethritis in service with his current benign prostatic hypertrophy. The opinion even goes so far as to find that even assuming that the Veteran had prostatitis in service, the current medical authorities do not demonstrate an etiological relationship between prostatitis and benign prostatic hypertrophy. Consideration has also been given to the Veteran's statements and those of his spouse regarding onset of prostate symptoms in or shortly after service with continuity of symptoms thereafter. However, in a very recent decision the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Neither prostatitis, urethritis, nor prostatic hypertrophy are diseases/disorders that are identified under 3.309(a). A continuity of symptomatology is simply not applicable in the present case. Moreover, while he is competent to describe his own subjectively perceived symptoms, such as genitourinary pain, and their time of onset, the Veteran's statements that he experienced onset and continuity of a chronic prostate disorder since service are not credible. The Veteran's account in this regard is contradicted by the documented medical record, which shows no such history of treatment for prostate issues in service or for many years thereafter. Treatment notes dated in 1995 make no reference to his active service. Rather, in the 1995 note, the Veteran gave a history of genitourinary system for only the "past week or so." Had he truly been experiencing chronic genitourinary system problems since service, the Board believes it would have been in the Veteran's best interest, from a treatment standpoint, to mention the same. Therefore, the Veteran's account of onset of genitourinary pain in service and the account of the Veteran and his spouse regarding continuity of genitourinary symptoms since service are not found to be credible for purposes of establishing a nexus between his claimed chronic prostate disorder and his period of active duty. Having determined that the Veteran's alleged clinical history regarding onset and continuity of genitourinary system since service is not credible (not to mention inapplicable), to the extent that he asserts on his own authority, based on his own personal knowledge of the particulars of his individual case, that his chronic prostate disorder (presently diagnosed as benign prostatic hypertrophy) is related to service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of internal medicine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose prostate disorders or diseases as these are not manifested by external but rather internal signs requiring expertise in proctology and urology to diagnose). The Veteran's statements in this regard are thus entitled to no probative weight. In view of the foregoing discussion, the Board concludes that an award of VA compensation is not warranted for a chronic prostate disorder, to include benign prostatic hypertrophy. The appeal in this regard must therefore be denied. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic low back disability is denied. Service connection for a chronic prostate disorder, to include benign prostatic hypertrophy, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs