Citation Nr: 1316803 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-24 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a prostate disability (claimed as prostatitis and residuals thereof). 2. Entitlement to service connection for a bladder disability, to include as secondary to prostate disability. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran reportedly served on active duty from May 1978 to April 1981 and from May 1988 to August 1988. He also had additional service in the Reserves, to include a period of active service from October 14 to November 3, 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the RO in March 2010. A transcript was been associated with the claims folder. In the Veteran's July 2009 VA Form 9, Appeal to the Board, he requested a hearing before a Veterans Law Judge sitting at his local RO. In July 2011, the Veteran presented testimony at a videoconference hearing before a Veterans Law Judge who has since retired. A transcript of these proceedings has been associated with the Veteran's claims file. In March 2012, the Veteran was afforded the opportunity for new hearing, which he originally declined in April 2012. In June 2012, the Veteran's new representative filed a motion for new hearing. The Board granted the motion for a new Board hearing for good cause shown and, as such, remanded this matter in November 2012. In March 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the local regional office. A transcript of these proceedings has been associated with the Veteran's virtual claims file. After the hearing, additional evidence was submitted accompanied by a waiver of RO consideration. This evidence will be considered by the Board in reviewing the Veteran's claims. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. FINDINGS OF FACT 1. A prostate disability, to include chronic prostatitis and benign prostatic hypertrophy, has been shown to have had its onset in active service. 2. A bladder disability, to include painful bladder syndrome and chronic pelvic pain syndrome, has been shown to have had its onset in active service, including as a result of a prostate disability, to include chronic prostatitis and benign prostatic hypertrophy. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of the doubt, a prostate disability, to include chronic prostatitis and benign prostatic hypertrophy, was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). 2. Affording the Veteran the benefit of the doubt, a bladder disability, to include painful bladder syndrome and chronic pelvic pain syndrome, was incurred in or aggravated by active service, including as a result of a prostate disability, to include chronic prostatitis and benign prostatic hypertrophy. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the fully favorable disposition in this case, further consideration of the VCAA is not necessary. II. Service connection. Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also 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 no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant 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 evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for a prostate disability and a bladder condition due to his prostate disability. Specifically, the Veteran contends that he developed prostatitis on active reserve training in 1989 and that this condition caused his current prostate and bladder disabilities. In this regard, the Board notes that the Veteran had active reserve service from October 14, 1989 to November 3, 1989, during which he was hospitalized for low back pain. The hospitalization notes indicate that the Veteran experienced pain starting approximately two days before, during field exercises and after a long car ride. He was seen by orthopedic doctors and admitted for bedrest. On admission, he complained of some difficulty in voiding. During his course in the hospital, the Veteran continued with low back pain and a urine culture returned as greater than 10 to the 5th gram negative rods. Urology was consulted and he was started on intravenous Septra. The Veteran had a very quick and continuous resolution to the back pain. A prostatic examination revealed a mild enlarged left lobe. The Veteran returned to full active status within another 48 hours. His discharge diagnosis was prostatitis. Over the ensuing years (1992 forward), the Veteran's medical records indicate increasing problems with lower urinary tract symptoms, including frequency, urgency, hesitancy, decreased stream, nocturia, bladder and perineal pain. In order to determine whether the Veteran has a prostate or bladder condition related to his 1989 hospitalization, he was afforded a VA examination in May 2009. His medical history was noted, including the 1989 treatment reports. As a result of increasing symptoms, the Veteran was noted to have undergone surgery. In this regard, the Board notes that the Veteran underwent transrectal needle biopsies of the prostate, hydro distention of the bladder, and laser TUR prostate with bladder neck incision, revolix, in December 2007. He reported some continued symptoms after the surgery. After examination, the Veteran was diagnosed with benign prostatic hypertrophy, chronic pelvic pain syndrome, and chronic urinary retention. The examiner noted the diagnosis of prostatitis in 1989 while on active duty but stated that benign prostatic hypertrophy and prostatitis are two separate and distinct diagnoses with different etiologies and pathogenesis. Therefore, the examiner opined that it was less likely than not that the Veteran's benign prostatic hypertrophy was secondary to the same condition he was treated for during active service in 1989. The Veteran submitted a report of his private physician dated in September 2009 in connection with his claim. The Veteran's medical history was reviewed in this report, including the 1989 hospitalization and subsequent treatment for prostate and bladder symptoms. After examination, the Veteran was diagnosed with chronic prostatitis, interstitial cystitis, and retrograde ejaculation due to treatment of the above. The physician then provided an opinion regarding whether the Veteran's diagnosed conditions were related to the Veteran's military service. Specifically, the examiner stated that "[m]y medical opinions are based upon my examination, review of medical and/or service records, my education training and experience, and upon reasonable medical probability and reasonable medical certainty. It is my medical opinion that the injuries, impairments and disability set forth in my diagnosis and report were, as likely as not, due to and a consequence of this Veteran's service. If he had not had the prostate infection in the service, which is well documented in the military medical records, he would not have had the chronic prostatitis. The chronic prostatitis caused recurrent infection into the bladder causing injury to the bladder, injury to the lining of the bladder and subsequent interstitial cystitis. But for his service-connected prostate infections, he would not have needed the catheterizations and the surgeries. He would not have had the severe voiding and urgency problems." In January 2012, the Veteran was again afforded a VA examination in connection with his claim. The examination was conducted by the Chief, Urology Service at the Central Arkansas Veterans Administration Hospital in Little Rock, Arkansas. The examiner began by defining some the medical terms used to describe the conditions found in the Veteran's medical records, including urinary tract infection, painful bladder syndrome or chronic pelvic pain syndrome, acute and chronic prostatitis, and benign prostatic hypertrophy. The examiner indicated that he had reviewed all of the information provided in the Veteran's medical records. This was set forth in the report, beginning with the 1989 hospitalization and the various testing done and diagnoses rendered at the time, and continuing through his private treatment from 1992 forward. After this review, the examiner stated that, putting everything together, it was more likely than not that on admission to the hospital in 1989, the Veteran's acute back pain was secondary to a musculoskeletal event, i.e., strain, sprain, etc. The examiner based this opinion on the facts that the Veteran was afebrile on admission and had no voiding symptoms typically seen with an acute urinary tract infection or prostatitis, his back pain followed vigorous physical activity, his back pain was made worse with movement, and his admission urinalysis was reported to be normal, as was his prostate examination. The examiner next explained that the positive urine culture on October 31, 1989 could have been related to the catheterization the Veteran underwent on admission. The examiner also found that, while the Veteran's voiding symptoms could be related to prostate obstruction, which the examiner stated was treated appropriately culminating in surgery in December 2007, many of the Veteran symptoms were likely due to a variant of painful bladder syndrome/chronic pelvic pain syndrome. And the etiology of painful bladder syndrome was noted to be usually unknown, as well as difficult to treat. The examiner further opined that it was unlikely (less than 50%) that the Veteran's subsequent urinary tract symptoms due to prostate enlargement and painful bladder syndrome were related to the single urinary tract infection the Veteran had in 1989. This, the examiner explained, was based on the fact that the Veteran had one documented urinary tract infection his entire life which was treated rapidly and appropriately. The examiner stated that there was no objective evidence in the subsequent years that he had further prostate infections or urinary tract infections of any kind as documented by an abnormal prostate examination, abnormal biopsy or abnormal urinalysis. The examiner explained that there is no data that would support a single unit or episode of prostatitis being a subsequent participating factor for the development of either benign prostate enlargement or painful bladder syndrome. Finally, with respect to interstitial cystitis, the examiner indicated that, although the Veteran had symptoms consistent with painful bladder syndrome, no findings were described on his cystoscopies that would suggest interstitial cystitis as an etiology, and he indicated that there was no evidence that support a single urinary tract infection or episode of prostatitis being an etiological factor in a patient diagnosed with interstitial cystitis. Finally, the Veteran submitted an additional private report of his treating physician in support of his claim, dated in June 2012. The physician indicated that the Veteran had been a patient since approximately 2007 and that he had been treated for chronic prostatitis, urinary frequency, urge incontinence, chronic urinary retention, and benign prostatic hypertrophy. He indicated that incontinence, urinary frequency, and recurring prostatitis is often related to acute and chronic prostatitis. The Veteran was also noted to have chronic pelvic pain syndrome which the physician indicated usually begins with an episode of acute prostatitis. The physician indicated that, based on his prolonged treatment of the Veteran from February 2007 to the present, the Veteran's symptoms were as likely as not the result of the illness he suffered in October 1989. Affording the Veteran the benefit of the doubt, the Board finds that entitlement to service connection is warranted in this case for a prostate disability, to include chronic prostatitis and benign prostatic hypertrophy, and for a bladder disability, to include to include painful bladder syndrome and chronic pelvic pain syndrome, as a result of a prostate disability and residuals thereof. While the medical evidence contains conflicting findings, the Board finds that the weight of the evidence is at least in equipoise and therefore should weight in the Veteran's favor in this case. In this regard, the Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the opinions of the Veteran's private physicians who have examined him and treated him for his claimed conditions, should be afforded at least equal weight as the opinions of the VA examiners in this case. In summary, the Board concludes that the preponderance of the evidence is in favor of the claims and, as such, the claims are allowed. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a prostate disability, to include chronic prostatitis and benign prostatic hypertrophy, is granted. Service connection for a bladder disability, to include painful bladder syndrome and chronic pelvic pain syndrome, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs