Citation Nr: 1316352 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 06-15 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right arm disability. 2. Entitlement to service connection for a chronic prostate disorder, to include the testicles. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to May 1967. The service personnel records indicate that he served on temporary duty in the Republic of Vietnam for 122 days during his time in active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, inter alia, denied the Veteran's claims of entitlement to service connection for bilateral sensorineural hearing loss, a right arm disability, and a prostate disorder. In January 2010, the Board denied the Veteran's claims. The Veteran subsequently filed a notice of appeal with the United States Court of Appeals for Veterans Claims (Court) with respect to the Board's January 2010 decision. In a December 2011 Memorandum Decision, the Court vacated the Board's denial of the issues of entitlement to service connection for bilateral sensorineural hearing loss, a right arm disability and prostatitis, and remanded these claims back to the Board for additional evidentiary development. In June 2012, the Board granted service connection for bilateral sensorineural hearing loss and remanded the right arm and prostate claims for additional evidentiary development. In March 2013, the Appeals Management Center (AMC) assigned a noncompensable evaluation for the Veteran's bilateral hearing loss. Therefore, because the Veteran was granted the full benefits he sought, and has not filed a notice of disagreement regarding his assigned effective dates or rating, his claim of entitlement to service connection for bilateral hearing loss is no longer on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues of entitlement to service connection for erectile dysfunction secondary to service-connected diabetes mellitus, entitlement to special monthly compensation based on aid and attendance of the Veteran's spouse, and whether new and material evidence has been submitted to reopen the claim for service connection for posttraumatic stress disorder, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACTS 1. A right arm disability was first manifested several years after the Veteran's active duty and is not causally or etiologically related to such service. 2. A chronic prostate disorder was first manifested several years after the Veteran's active duty and is not causally or etiologically related to such service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a right arm disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5013A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for an award of service connection for a chronic prostate disorder, to include the testicles, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5013A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A March 2004 pre-adjudication notice letter complied with VA's duty to notify the Veteran with regards to the service connection issues addressed herein. Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. There has been no notice of the types of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. Despite the inadequate notice provided to the Veteran, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the claims for service connection, no ratings or effective dates will be assigned. Thus, any questions as to notice pertaining to assignment of ratings or effective dates are rendered moot. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. The evidence includes VA examination reports, VA and private treatment records, lay statements, and Social Security Administration (SSA) records. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran underwent VA examinations in March 2005 and July 2012, with an independent medical opinion issued in March 2013; reports of these examinations are of record. In that connection, the Board notes that 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). As noted below, the Board finds that the March 2005 opinion, July 2012 genitourinary opinion, and March 2013 opinion obtained in this case are adequate, as they were predicated on consideration of all of the pertinent evidence of record, to include statements regarding the incident that allegedly led to the development of the Veteran's right arm disability and chronic prostate disorder, and document that the examiner conducted a full examination of the Veteran and review of the claims file and fully understood the questions posed by the AOJ. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claims on appeal has been met. See 38 C.F.R. § 3.159(c)(4). This appeal was remanded by the Board in June 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that an examination be conducted and an opinion provided. An examination was obtained in a July 2012. Although that examiner did not provide a nexus opinion, such was obtained in a subsequent March 2013 IMO. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In addition, the Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claims. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claims decided herein that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Service connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection can be granted for certain diseases, such as arthritis, if manifest to a compensable degree within one year of separation from active service. Such disease shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking service connection for a right arm disability and a chronic prostate disorder. He contends that he injured his arm during service due to a fall, and that he has had right arm problems since service. He also maintains that his current prostate problems are associated with the prostatitis he was treated for during service. The DD 214 shows that his military occupational specialty (MOS) was that of carpenter. The Veteran was treated for gonorrhea in July and October 1964. He underwent circumcision in October 1964. In April 1965, the Veteran was treated for penile discharge; he was diagnosed with a mild genitourinary tract infection and given antibiotics. In July 1965, the Veteran complained of left testicular pain. There was tenderness on palpation. He was treated for gonorrhea. The Veteran was treated for bilateral arm pain in August 1965 after falling 20 feet from a fire escape landing. Tenderness and moderate swelling of both wrists was noted. X-rays of both wrists were initially read as negative. However, the following day it was noted that the films showed nondisplaced fractures of the distal radius metaphysic and of the proximal radial neck. A long arm cast was applied. The cast was removed a few weeks later and a volar splint was applied. Some volar angulation was noted. X-rays taken through the plaster cast in September 1965 did not reveal the previously seen fracture of the distal right radius. The radiologist noted that "[t]he fracture was minute enough originally, that one would expect the plaster cast to obliterate the fracture line." Position and alignment were noted as excellent and the proximal end of the radius was not seen. In October 1965, the Veteran reported that his right testicle had dropped; a bacterial smear was noted, and he was given antibiotics. In January 1966, the Veteran complained of right testicle pain during intercourse. An examination was normal, although some tenderness and swelling was noted in the right epididymis. The diagnosis was gonorrocal epididymitis. Antibiotics and a scrotal support strap were prescribed. Upon follow-up later that month, it was noted that the swelling had gone down. The clinician noted that pulsation at the right inguinal ring was greater than the left, but indicated that this finding was not the cause of the Veteran's pain. The Veteran was subsequently referred to the urology clinic, at which time he reported pain in both testicles that was worse after intercourse. He reported an occasional feeling as if a testicle had dropped. He sometimes had an ice-cold sensation in the right testicle. He also complained of an occasional inability to sustain an erection, which he attributed to a back injury. An examination was normal. The doctor could not find no organic disease. A May 1966 examination revealed clinically normal upper extremities. On the accompanying medical history report, the Veteran checked the "no" box for a history of broken bones. However, next to that he wrote "ulna." The examination also contains a normal clinical evaluation of the genitourinary system. In July 1966, the Veteran continued to complain of left testicle pain. An examination was normal. No diagnosis was provided, but he was given antibiotics. In August 1966, he complained of dysuria. In September 1966, it was noted that his prostate was enlarged and tender. The diagnosis was prostatitis. He received a limited profile in December 1966. In January 1967, the Veteran complained that both testicles hurt. An examination revealed a tender and soft prostate. In March 1967, the appellant was treated for chronic prostatitis. It was noted that he was initially very slow in responding, but at the end of his treatment was doing very well. The diagnosis was chronic prostatitis. A March 1967 separation examination revealed clinically normal upper extremities; full range of motion of the right arm was noted. On the accompanying medial history report, the Veteran checked the "yes" box for a history of broken bones. The clinician noted that the Veteran had fractured his right radius, which was casted, and exhibited no complications or sequelae. The Veteran denied a history of a painful or "trick" shoulder or elbow. The clinician also noted that the Veteran suffered from episodes of pain in the right testicular region and was being followed by the urology clinic. The earliest indication of a prostate condition in the post-service treatment records is dated in May 2000, when the Veteran complained of bilateral testicular pain of four weeks' duration. A scrotal ultrasound showed bilateral hydroceles, right greater than left, and a left epididymal cyst. In July 2000, the Veteran reported that the left testicular pain had been going on for "quite some time," but had been constant for the last four weeks. Upon examination, there was significant marked tenderness in the head and the upper body of the left epididymis; the hydroceles were not significant. It was noted that the Veteran's past history was "noncontributory." The doctor prescribed antibiotics and explained to the Veteran that "infection of the epididymis is sometimes difficult to clear up." It was noted upon follow-up later that month that the Veteran was doing much better. There was much less tenderness. The doctor noted a small nodule on the top of the testicle, which he felt was "probably a calcified or an appendix testis or epididymis." A July 2004 VA treatment record shows that the Veteran was prescribed Doxazosin for "symptoms of prostatic obstruction and nocturia." The Veteran submitted to a general VA examination in March 2005. He related the 1965 fall. He was unable to recall the specifics of his injuries, but recalled that he fell on his right side. He reportedly experienced decreased strength at that time and over the years, noting that he was not able to work with a hammer. He reported "a little limitation" and experienced some wrist soreness after using his hands. Physical examination revealed normal right arm musculature a slightly enlarged prostate with no masses. Range of motion of the right arm was normal. The examiner reviewed the claims file. He found no abnormalities of the right arm. He indicated that he could not speculate about sequelae from the 1965 injury without records of the in-service injury as well as more specific complaints" The VA examiner also diagnosed benign prostatic hypertrophy. A December 2005 VA treatment record shows that the Veteran complained of aching joints. In April 2007, he complained of arm pain. An October 2007 VA treatment record shows that the Veteran complained of scrotal pain "on and off" for the past 2-3 weeks. He gave a history of the problem and reported that it had been treated with antibiotics. Induration and swelling of the right epididymis with exquisite tenderness was noted upon examination. The diagnosis was scrotal pain - probable acute epididimytis. Antibiotics were prescribed. In June 2009, the Veteran complained of increased thirst and frequent urination. He was subsequently diagnosed with diabetes. A December 2009 VA diabetes examination contains a normal evaluation of the upper extremities. A March 2011 VA treatment record also contains a normal evaluation of the upper extremities. The Veteran submitted to a September 2011 VA general medical examination. He mentioned the in-service fall, but there is no mention of the right arm injury in the report. He claimed that he could no longer work due in part to problems lifting his arms. An upper extremities evaluation was normal. As instructed by the June 2012 Remand Order, the Veteran underwent a VA prostate examination July 2012. The Veteran reported that he "has not had any more issues with infections" since service. A physical examination of the penis, testes, epididymis, and prostate was normal. The examiner reviewed the claims file and noted that the Veteran had been diagnosed with benign prostatic hypertrophy, but was not taking any medication for this condition. He diagnosed chronic prostatitis. He opined that this condition is less likely as not (less than 50 percent) related to the Veteran's active service. He acknowledged that the Veteran was treated for prostatitis during service, but noted that "[a]t this age the cause of this condition is infections and related to sexually transmitted diseases." He further noted that the Veteran was successfully treated for sexually transmitted diseases during service. The examiner also cited the lack of objective medical evidence for any ongoing prostatitis since his 1967 discharge. Finally, he noted that the causes of benign prostatic hypertrophy are aging and genetics. The Veteran also underwent a July 2012 VA wrist examination. He related the 1965 fall. He stated that since that time he has had pain "once in awhile" and limited range of motion. He denied being formally diagnosed or treated for residuals of this condition. Tenderness or pain was noted on palpation. Right wrist flexion and dorsiflexion were to 45 degrees with no pain. There was no additional range of motion after repetitive use testing. There was, however, less movement than normal, weakened movement, excess fatigability, pain on movement, and swelling. Strength testing was normal. X-rays revealed minimal degenerative change at the thumb CMC and radiocarpal joints. There was slight deformity of the base of the thumb distal phalanx with minimal degenerative change. The examiner opined that these findings "may be related to remote trauma." No acute fractures or dislocations were present. The examiner reviewed the STRs and noted that the Veteran had been treated with a cast for a few weeks and then returned to duty. He diagnosed right wrist arthritis. The examiner opined that the Veteran's current right arm/wrist condition "is more likely than not related to, or caused by, his time in the service." He noted that STRs showed that the Veteran had suffered a trauma to the distal right radius, next to the wrist. He reasoned that "this type of trauma right next to a joint is a major cause of degenerative arthritis later on" and that "[t]his is the case here." Apparently recognizing the inherent contradiction in the July 2012 VA wrist examination report, the RO obtained a nexus opinion from a different doctor in March 2013. She reviewed the physical claims file and the Virtual VA claims file and opined that it is less likely than not that the Veteran's claimed right arm disability was proximately due to or aggravated by his service. She noted that there was no in-service documentation alleging that his right arm injury affected his work as a carpenter. She also noted that there were no records of diagnoses or treatment for this condition prior to or after the March 2005 VA examination report. Furthermore, the examiner observed that the in-service fracture was nondisplaced and healed uneventfully. She concluded that the current clinical findings are as least as likely as not consistent with a normal aging process, noting that the Veteran was right hand dominant. Upon review of the evidence of record, the Board finds that there is no probative evidence medically relating any current right arm disability to military service. The Board acknowledges the Veteran's 1965 in-service treatment for a right arm fracture, to which he traces his current disability. However, upon examination at his March 1967 separation examination the Veteran was found to have clinically normal upper extremities. No further diagnosis of any right arm disability was made. In fact, the clinician noted that the right arm fracture had healed and resulted in no sequalae. Additionally, no arthritis was shown within a year of the Veteran's separation from active military service. See 38 C.F.R. §§ 3.307, 3.309. The Board concedes that the Veteran currently carries a diagnosis of arthritis. However, the Veteran did not complain about any problems with his right arm until 2005, nearly 40 years after his separation from service. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333(Fed. Cir. 2000). Furthermore, the Board looks to the statement by the VA examiner in March 2013, in which she opines that the Veteran's current right arm disability is unrelated to the in-service fall. The March 2013 VA examiner had full access to the Veteran's medical history and opined that his current diagnosis is not related to military service. The examiner considered the Veteran's report of right arm pain that began in service and continued to the present; however, based on a full review of the medical evidence and physical examination, the examiner still concluded that the Veteran's current disability is not related to service. As discussed above, the Board finds that the July 2012 VA examiner's opinion is inherently contradictory. Accordingly, the Board affords this opinion little probative weight. Furthermore, when considering the Veteran's contentions of having experienced right arm pain since service, the March 2013 VA examiner concluded that any in-service problem was unrelated to his current right arm disability. This evidence strongly suggests that the Veteran's statements regarding continued right arm problems since service are not credible. The Board also finds that the Veteran's in-service prostatitis is not related to the later development of benign prostatic hypertrophy or chronic prostatitis. The first indication of any post-service treatment for the Veteran's prostate was not until 2000, over 30 years after discharge. Notably, the Veteran has not asserted having a continuity of relevant symptoms since service. The July 2012 VA genitourinary examiner essentially found that the Veteran had infectious prostatitis during service as a result of gonorrhea, which resolved after treatment. The examiner based his opinion on a review of the claims file, the Veteran's subjective history, and a physical examination, and offered a rationale for his conclusions. Accordingly, the Board accords great probative weight to such opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds compelling the lack of any probative medical evidence linking a current chronic prostate disorder to service. Moreover, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir.2007). As noted above, the Board acknowledges that the Veteran was treated for a right arm injury and prostatitis during service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge, such as urinary frequency, testicular pain, and arm/wrist pain. See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, he is not competent to say that any such symptoms experienced in service were a result of or worsened by any incident in service or were of a chronic nature to which a specific current disability can be attributed. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a right arm disability is denied. Entitlement to service connection for a chronic prostate disorder, to include the testicles, is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs