Citation Nr: 1313419	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  10-29 566	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for recurrent urinary tract infections (UTIs) associated with benign prostatic hypertrophy (BPH).


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to May 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by which the RO, in pertinent part, denied entitlement to service connection for recurrent UTIs.  In September 2012, the Board bifurcated the issue of entitlement to service connection for recurrent UTIs, denied service connection for recurrent UTIs as a result of herbicide exposure, and remanded the issue of entitlement to service connection for recurrent UTIs associated with BPH.  Herein, therefore, the Board will address the matter of service connection for recurrent UTIs associated with BPH.

In February 2011, the Veteran testified at a Board hearing before the undersigned.  The hearing was held at the RO.  A transcript of the hearing has been associated with the claims file.


FINDING OF FACT

Prostatitis or other events in service did not cause BPH and associated UTIs; the Veteran's BPH with associated UTIs is related to the aging process.


CONCLUSION OF LAW

UTIs associated with BPH were not incurred in or a result of active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA) 

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ); the AOJ in this instance is the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (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.  Notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of these five elements.  Id. at 486; Quartuccio, 16 Vet. App. at 187. 

Here, prior to the initial rating decision in this matter, letters dated in February and April 2008 informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence.  Therefore, the Board concludes that the duty to notify has been satisfied.  Id.  

The VCAA further provides that VA has a duty to assist the veteran in the development of the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  Id. 

The Board concludes that the duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained to the extent possible.  The Veteran has indicated in February 2008 and June 2010 statements, as well as in his testimony at the February 2011 Board hearing, that records no longer exist for private treatment identified by the Veteran at other facilities.  Accordingly, there is no duty to obtain those records.  The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim.  Therefore, the Board concludes that the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf.  See generally 38 C.F.R. § 3.159(c). 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Here, the Board notes that the VA medical opinion obtained in October 2012 is adequate because it is based on a comprehensive review of all of the pertinent evidence of record, which includes the Veteran's statements and hearing testimony, and because it is fully substantiated.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); see also Barr, supra.  

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra.

Standard of Review 

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Law 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; 38 C.F.R. § 3.303(a).  Service connection may 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). 

The condition at issue herein is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b), which provides for service connection based on continuity of symptomatology, does not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

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).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Discussion

The Veteran contends that he suffers from BPH with associated UTIs that is related to service.  

On entry into service and upon service separation, the Veteran's genitourinary system was found to be normal.  In March 1969, however, dysuria secondary to prostatitis was diagnosed.  The service treatment records also indicate some treatment for kidney problems that appear to have resolved, as the genitourinary system was found normal on separation.

Treatment records dated many years after discharge indicate current urinary problems.  These reflect urinary stream difficulties and a mildly enlarged prostate that was likely BPH.  A history of prostate enlargement was noted in private medical records dated in July 2004.

On VA examination in July 2008, the Veteran reported stress incontinence.  The examiner did not opine regarding any relationship between UTIs and BPH and service.  Instead, the examiner commented only regarding the lack of current acute glomerulonephritis or associated abnormalities.

In an October 2012 VA medical opinioin, the examiner indicated that pursuant to a review of the record, the Veteran's claimed disability was unrelated to service.  The examiner explained that the Veteran's in-service prostatitis was treated with antibiotics and that the treatment was apparently successful, as the genitourinary system was normal on service separation.  The examiner noted that BPH was diagnosed by a private physician in August 2011.  The examiner indicated that there was no causal connection between one episode of prostatitis in service and BPH and that BPH was due to the natural aging process in older men.

The Board notes that the Veteran's representations regarding the origins of UTIs, BPH, or residuals of an acute episode of prostatitis do not constitute probative evidence upon which the Board may rely because the workings of the genitourinary system are beyond the common knowledge of the layperson.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The only competent and probative evidence on the issue at hand is that of the October 2012 VA examiner who opined that BPH and associated symptomatology was unrelated to any event in service to include a single resolved episode of prostatitis therein.  Based on this evidence, the Board cannot conclude that there is a nexus between recurrent UTIs associated with BPH and service; indeed, the Veteran's BPH has been linked to the natural aging process.  Because there is no causal connection between the claimed recurrent UTIs associated with BPH and service, service connection for the claimed disability must be denied.  38 C.F.R. § 3.303(d).

The entirety of the evidence that is both competent and probative weighs against the claim.  In such situations, the benefit of the doubt rule is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra.


ORDER

Service connection for UTIs associated with BPH is denied.



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs