Citation Nr: 1316591 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 12-31 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a prostate disorder, to include pyuria and prostatitis. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 1955 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The Veteran had requested review by a Decision Review Officer (DRO) in November 2012 and inquired as to whether such review had been conducted in February 2013 letter. In response to the Veteran's inquiry, the Board notes that a review by a DRO was conducted at the agency of original jurisdiction (AOJ) and resulted in the issuance of the September 2012 statement of the case (SOC). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A prostate disorder, to include pyuria and prostatitis, is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW A prostate disorder, to include pyuria and prostatitis, was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Relevant to the claim adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a June 2010 letter, sent prior to the initial August 2010 rating decision, advised the Veteran of the evidence and information necessary to substantiate his claim for service connection, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records, VA outpatient treatment records, various private treatment records, and an August 2012 VA examination report have been obtained and considered. Additionally, the Veteran was afforded a VA examination in order to adjudicate his service connection claim. In this regard, the Board notes that the August 2012 VA examiner offered an etiological opinion as to the claimed disorder and based his conclusions on interviews with the Veteran, a review of the record, and full examinations. Moreover, such opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinion proffered by the VA examiner is sufficient to assist VA in deciding the instant claim. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Inasmuch as the Veteran does not have a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current prostate disorder is caused by his in-service treatment for posterior urethritis. Specifically, he refers to the May 1956 findings that his prostate was soft and boggy in support of his claim. A July 1955 service entrance examination was negative for any relevant abnormalities and the Veteran denied frequent or painful urination in an accompanying Report of Medical History (RMH). In May 1956, the Veteran reported recurrent pyuria and minimal hematuria, that he had been treated with terraymcin with improvement over the past month, and that his reoccurrence had been mild. Physical examination was noted to be essentially normal except for a soft and boggy prostate with normal secretion. An impression of posterior urethritis was made. The Veteran complained of urethral discharge for three days and a GC Smear (Gram strain for Neisseria gonorrhoeae) was positive; penicillin was prescribed. A July 1957 service discharge examination was negative for any relevant abnormalities. Service personnel records were negative for complaints, treatments or diagnoses related to a prostate disorder. VA examinations conducted in February 2000 and May 2002 were negative for complaints, treatments or diagnoses related to a prostate disorder. A December 2008 private treatment note contained a diagnosis of an urinary tract infection and questionable prostatitis. In a June 2010 statement, the Veteran's friend wrote that she had known the Veteran for over five years and that they have had intercourse numerous times. She experienced a burning sensation after each session. In a June 2010 statement, the Veteran wrote that he experienced the same symptoms in December 2008 as he had in 1956. He believed that his in-service posterior urethritis had "never left him." An August 2012 VA examination report reflected the Veteran's reports of the onset of his symptoms, namely painful urination, in December 2008. Physical examination found the Veteran's prostate to be normal. Following a review of the Veteran's claims file, a diagnosis of chronic prostatitis was made. The examiner noted that the Veteran had been diagnosed with posterior urethritis in 1956 and chronic prostatitis in 2010. The examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's chronic prostatitis was incurred in or caused by the claimed in-service injury, event or illness as there is no pathophysiologic relationship between such a condition and the in-service posterior urethritis. As an initial matter, the Board finds that the Veteran has a current diagnosis of a prostate disorder, namely chronic prostatitis. While he has also claimed service connection for pyuria, such has not been diagnosed at any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim). With respect to the Veteran's diagnosed prostatitis, the probative evidence of record fails to demonstrate that such prostate disorder is related to his service. In this regard, the Board places great probative weight on the August 2012 VA examiner's opinion that the Veteran's chronic prostatitis was less likely than not related to his in-service posterior urethritis as there was no pathophysiologic relationship between such disorders. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Accordingly, as the probative evidence of records demonstrates that the current chronic prostatitis is not related to service, service connection is not warranted. The Board notes that the Veteran has contended on his own behalf that his current chronic prostatitis is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's chronic prostatitis and any instance of his service, to include his posterior urethritis, to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, the diagnosis and determination of etiology of chronic prostatitis requires the interpretation of results found on physical examination and knowledge of the genitourinary system. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his in-service posterior urethritis and his current chronic prostatitis. In contrast, the August 2012 VA examiner took into consideration all the relevant facts in providing an opinion, to include the in-service diagnosis and treatment of posterior urethritis as well as the current nature of the Veteran's chronic prostatitis. Therefore, the Board accords greater probative weight to the VA examiner's opinion. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a prostate disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a prostate disorder, to include pyuria and prostatitis, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs