Citation Nr: 1316877 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-17 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a genitourinary disability (diagnosed as chronic recurrent prostatitis and interstitial cystitis), claimed as secondary to service-connected disabilities, or as the residual of exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1970 to August 1972, including service in the Republic of Vietnam from September 29, 1971 to August 18, 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2001 and January 2008 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Although the RO indicated the claim stemmed only from the January 2008 rating decision, the Board notes that the records received within one year of the prior May 2001 rating decision included VA treatment records reflecting a current prostate disability. The applicable regulation provides that new and material evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). In such situations, the rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); see also Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007) (holding that, pursuant to 38 C.F.R. § 3.156(b), an RO decision only becomes final after the appeal period has run with any interim submissions before finality being considered part of the original claim). Here, the VA treatment records reflected that the Veteran had a current prostate disability, which was the reason the claim was denied in May 2001. See May 2001 rating decision (medical examination was normal with no evidence of prostate condition); see Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). As such, the May 2001 rating decision did not become final, and the claim on appeal stems from the May 2001 and January 2008 rating decisions. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); King v. Shinseki, 23 Vet. App. 464, 467 (2010) (discussing the application of 38 C.F.R. § 3.156(b)). The Board has recharacterized the issue to reflect this fact. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim for service connection for prostate disability, claimed as secondary to service-connected disabilities, or as the residual of exposure to Agent Orange, so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). With regard to the issue of service connection for a genitourinary disability, in order to establish service connection for a claimed disorder, generally, there must be (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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to a current disability, it is uncontroverted that the Veteran has been diagnosed with chronic recurrent prostatitis and interstitial cystitis. Concerning the question of in-service disease or injury, the injury or event here contended is exposure to herbicides in Vietnam. The Veteran's DD-214 showed that he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal and had Vietnam service. Based upon information obtained from the Veteran's service records, such exposure to herbicides during active service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2012) (a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent). With respect to the question of medical nexus, because the Veteran's prostate disability is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e) (2012), medical nexus may not be presumed as a matter of law. While prostate cancer is listed as a presumptive disease associated with herbicide exposure, other prostate disabilities, such as prostatitis or an enlarged prostate, are not so listed. See 38 C.F.R. §§ 3.307(6), 3.309(e). Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's claim on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In May 2011, the Veteran, through his representative, submitted medical treatise evidence reflecting that patients with interstitial cystitis are often misdiagnosed with a variety of other conditions, including prostatitis. The treatise evidence also reflects that stress and anxiety are exacerbating factors in the development of interstitial cystitis and other chronic pelvic pain conditions, which includes chronic prostatitis. The Board finds that such evidence submitted by the Veteran raises the issue of service connection for a genitourinary disability as secondary to service-connected posttraumatic stress disorder (PTSD). The Veteran is service connected for PTSD and is currently assigned a 30 percent disability rating. The Board notes that the Court has held that separate theories in support of a claim for a particular disability are to be adjudicated as one claim. Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2008) (citing Bingham v. Principi, 421 F.3d. 1346, 1349 (Fed. Cir. 2005)). However, the RO has not addressed the theory of service connection for a genitourinary disability as secondary to service-connected PTSD, to include providing notice of what evidence and information is needed to substantiate this theory of the claim. See 38 U.S.C.A. § 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.310 (2012). Therefore, the RO should consider the secondary theories for service connection after completing the development noted below. This case presents certain medical questions that cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern the relationship, if any, between the Veteran's genitourinary disability and his military service, in particular the presumed exposure to herbicides during service in Vietnam, and the relationship between the Veteran's genitourinary disability and service-connected PTSD. These questions should be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The Board finds that there are medical questions presented by this case that are not currently addressed by the evidence of record. No VA or private medical report is of record with an etiology opinion specifically addressing the question of relationship of current genitourinary problems to the established in-service herbicide exposure or other service incident, or current genitourinary problems to the service-connected PTSD. In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Under the circumstances, the Board finds that additional development is warranted in this case. The Board finds that a medical opinion from an appropriate examiner, informed by consideration of the specific details of the Veteran's case, would be of great assistance in facilitating proper appellate review of this issue. Accordingly, the case is REMANDED for the following action: 1. The RO must review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA with respect to the claim for service connection for a genitourinary disability, to include as secondary to service-connected PTSD. The RO must (a) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim for secondary service connection; (b) inform the claimant about the information and evidence that VA will seek to provide; and (c) inform the claimant about the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. 2. After any additional evidence has been obtained and added to the record, the RO/AMC should schedule the Veteran for a VA genitourinary examination to determine the nature and etiology of the Veteran's current genitourinary disability(ies). The examiner should consider the relevant information in the claims file to provide an opinion as to the onset date and etiology of the Veteran's genitourinary disabilities. The examiner should provide the following opinions: (a) Is the Veteran suffering from any genitourinary disability(s)? If so, please identifyany and all such genitourinary disabilities. (b) For any and all of the genitourinary disability(s) identified, is it as likely as not (50 percent or greater probability) that any such disability(s) is/are causally related to his military service, including in-service exposure to herbicides in Vietnam, or to some other incident of service? Why or why not? (c) If the answer to the above question (b) is negative, is it as likely as not (50 percent or greater probability) that each of the identified genitourinary disability(s) is/are caused or aggravated by stress resulting from the Veteran's service-connected PTSD (as in the possibility that interstitial cystitis may be caused by stress)? Why or why not? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. The examiner is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A complete rationale should be provided for the opinions given. If the requested medical opinions cannot be given, the examiner should state the reason(s) why. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).