Citation Nr: 1318585 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-50 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for prostatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971 as a cadet at the United State Air Force Academy. This case comes before the Board of Veteran's Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2009, the Veteran presented testimony before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the claims file. On his December 2009 VA Form 9, the Veteran requested a hearing before the Board at the RO. He was originally scheduled for such a hearing in July 2012, but he requested that this hearing be postponed. He was rescheduled for another hearing in November 2012, but he failed to appear for that proceeding. The Veteran has not presented a reason for his failure to appear, nor has he requested rescheduling of the hearing. Therefore, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In February 2013, the Veteran's representative submitted additional medical evidence directly to the Board. The representative waived initial RO consideration of the evidence in a May 2013 Informal Hearing Presentation. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has been shown to have current prostatitis that is related to his military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, prostatitis was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the decision below, the Board has granted the Veteran's claim for prostatitis, and therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Law and Analysis The Veteran has contended that he experienced symptoms of prostatitis in service and since that time. He noted that in-service treatment providers initially believed that they were dealing with a nonspecific urethritis, but noted that it was really acute prostatitis. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also 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 Board notes that 38 C.F.R. § 3.6(b)(4) provides that service as a cadet at the United States Air Force Academy is "active duty." A DD214 indicates that the Veteran was a cadet at the United States Air Force Academy from June 1969 to March 1971. Thus, he is considered to have had active duty service. At the outset, the Board notes that the Veteran's service treatment records are not available for review. The Board is aware that in such cases, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim for service connection for prostatitis has been undertaken with these heightened duties in mind. An October 1971 statement from private physician, Dr. K. (initials used to protect privacy) reflects that he first saw the Veteran in July 1971 with symptoms of restriction of urination and burning on urination with an onset approximately one week prior to treatment. It was also noted that similar symptoms were evident while he was at the Air Force Academy. The examiner indicated that he was under the impression that the treatment providers in service thought that they were dealing with a non-specific urethritis and paid very little attention to the prostate. Upon examination, Dr. K. noted that there was evidence of urethral discharge. The Veteran's prostate was boggy and slightly enlarged, and the expressed fluid from the prostate showed Grade IV pus. Dr. K. noted that the prostate continued to show pus, although it had considerably improved as of October 1971, but the gland still had a boggy character and the Veteran still had symptoms of urinary urgency as if the stream did not run properly. Treatment records from Dr. K. reflect that he discussed prostatitis with the Veteran in August 1971. There are also treatment records dated through 1997 documenting treatment for prostatitis. A November 1996 private treatment report reflects a diagnosis of prostatitis for the past 20 years. In a September 2008 statement, the Veteran's Air Force Academy roommate from 1970 to 1971, R.B., submitted a statement indicating that he remembered the Veteran's appointments to the infirmary for complaints relating to urologic issues. VA outpatient treatment records beginning in January 2009 document a history of prostatitis. In a March 2009 statement, the Veteran's treating physician, Dr. D., indicated that he first consulted with the Veteran in October 1996 and had treated him for the past several years. He indicated that he reviewed the Veteran's post-service treatment records. He noted that the Veteran currently had and was being treated for chronic prostatitis and obstructive urinary symptoms. He opined that this disability was more likely than not caused by or a result of service, including environmental factors during training and diet while in the service. He also expressed his belief that the Veteran was misdiagnosed in service with urethritis. He noted that no attention was paid to the prostate in service, although symptoms were evident and only worsened as a result. During the Veteran's October 2009 DRO hearing, he reported that he was seen for symptoms of burning and other urological complaints in service, which was originally thought to be urethritis. He believed that he had been misdiagnosed and noted that treatment providers after service determined that the appropriate diagnosis was prostatitis. He also stated that he saw a private treatment provider only a few months after his discharge. In addition, the Veteran described his current symptoms, including obstructed voiding and frequent urination. The above-cited evidence clearly establishes that the Veteran has a current diagnosis of prostatitis. It also shows that the Veteran has a long history of prostate-related complaints, including painful and obstructed urination, and that the Veteran was seen for treatment of prostatitis within months of his discharge from service. The Veteran has consistently asserted that he continued to have same symptoms since service to the present time. These reports are also consistent with the October 1971 medical report reflecting that the Veteran presented with symptoms of restricted and painful urination in July 1971 that were similar to similar to symptoms experienced in service. There is no reason to doubt the credibility of the Veteran's statements other than a lack of contemporaneous medical evidence documenting such complaints. The Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, the March 2009 statement from private physician Dr. D. indicates that he found it as likely as not that the Veteran's prostatitis is related to service. The Board notes that, while the physician indicated that he reviewed post-service treatment records, he did not specify which records he reviewed. Moreover, he did not have any service treatment records available for review. However, while the opinion appears to be based, at least in part, on the Veteran's own reported history of in-service onset of symptoms and misdiagnosis, in Coburn v. Nicholson, 19 Vet. App. 427 (2006), the Court pointed out that reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), (citing Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a medical opinion may not be discounted solely because the examiner did not review the claims file). In this case, as discussed above, the Veteran's reported onset of prostatitis-related symptoms is considered credible. Therefore, the Board finds that the opinion is probative. Significantly, this opinion of Dr. D. as to medical nexus is not contradicted by any other medical evidence or opinion. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current prostatitis is causally or etiologically related to his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for prostatitis is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for prostatitis is granted. REMAND As noted above, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. As indicated above, the record reflects that the Veteran's service treatment records have not been obtained, and a formal finding has been made as to their unavailability. In case where the claimant's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare, 1 Vet. App. at 365. The heightened duty to assist the claimant in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records and alternative sources of evidence to substantiate the claim. Dixon v. Derwinski, 3 Vet. App. 261 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). The Veteran has claimed that he was exposed to loud noises during service, including from jet engines, weapons demonstrations, and explosives during training exercise. He has asserted that he has experienced difficulty hearing and ringing in his ears since service. The Board notes that the Veteran is competent to attest to the occurrence of an in-service injury, to include in-service noise exposure, as well as to report observable symptomatology. 38 C.F.R. § 3.159(a)(2). In addition, the Veteran's Air Force Academy roommate submitted a statement indicating that he and the Veteran participated in a number of "acoustically challenging situations," including throwing grenades, throwing M-1 and M-16 rifles, and flying in jet aircrafts. In addition, post-service VA and private treatment records document diagnoses of bilateral sensorineural hearing loss and tinnitus and indicate that the Veteran has received hearing aids. During treatment, as well as during the Veteran's DRO hearing, he reported that he has experienced hearing difficulties and tinnitus in service. VA outpatient treatment records also document a reported onset of hearing loss in service in 1971 and onset of tinnitus in basic training following an explosion. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals, such as his hearing difficulties. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). Nevertheless, the Veteran has not been afforded a VA examination to determine the etiology of his claimed hearing loss and tinnitus. In light of the foregoing, the Board finds that a medical opinion is needed to resolve the claims for service connection on appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all VA and non-VA health care providers who have treated him for hearing loss and tinnitus. After procuring any necessary authorization from the Veteran for the release of identified records, the RO/AMC should obtain copies of all such records. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the claims folder. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service medical records, and statements. It should be noted that while the Veteran's service treatment records are unavailable. The examiner should also note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Veteran has contended that he had noise exposure in service. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current hearing loss and tinnitus are causally or etiologically related to his military service, including noise exposure. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to his hearing loss. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which results from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develops from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should undertake any other development it determines to be warranted. 4. The RO/AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and be afforded an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs