Citation Nr: 1327200 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-05 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for residuals of inguinal hernia, to include as secondary to a low back disorder. 3. Entitlement to service connection for residuals of prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from February 1946 until July 1947 and from September 1947 to July 1950. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2010 rating decision of the VA Regional Office (RO) in San Diego, California that, among other things, denied entitlement to service connection for a low back disorder, inguinal hernia, and prostate cancer. Following review of the record, the issue of entitlement to service connection for residuals of prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. 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). FINDINGS OF FACT 1. A low back disorder was not shown in service, lumbar arthritis was not compensably disabling within one year of discharge from active duty, and is unrelated to service. 2. An inguinal hernia was not shown in service or for years after discharge from active duty, an inguinal hernia is unrelated to service, and is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in or aggravated by service, and lumbar arthritis may not be presumed to have been so incurred. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5107 (West 2002 & Supp. 2012): 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. (2012). 2. Inguinal hernias were not incurred in or aggravated by service, and are not proximately due to or aggravated by a service-connected disability. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he has chronic low back pain that is the result of injury in service. He maintains that as a company mail clerk in 1949, he lifted two duffel bags full of mail and badly strained his back. He states that he was treated in the general hospital in Bremerhaven, Germany, for a wrenched back and spinal damage. He relates that as time went on, his back became weaker and he began to have problems with hernias. He reports undergoing surgery for his first hernia in 1959. The appellant reports that after his third double hernia repair at a VA hospital, his doctors told him that the problem was related to his damaged and weak back. The Veteran contends that during service, he was hospitalized and treated for prostatitis that was in actuality a back disorder. He avers that, as such, service connection is warranted for a low back disorder and residuals of inguinal hernia. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims of entitlement to service connection for a low back disorder and inguinal hernia. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in March 2010 of the information and evidence needed to substantiate and complete the claims to include notice what he needed to do, what VA would do, and how effective dates and ratings are assigned in the event service connection is established. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim and affording a VA examination. In February 2011, the Veteran requested a Board hearing, and one was scheduled in June 2013 but he failed to report. No reason is documented for his failure to appear. The Board finds no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims of entitlement service connection for a low back disorder and inguinal hernia are ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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 or aggravated by service. 38 C.F.R. § 3.303. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain diseases, such arthritis may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. Id. Applicable law provides that a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is service connectable.) Factual Background. The Veteran's service treatment records do not contain any complaints or findings referable to an inguinal hernia or a low back disorder. When examined in June 1947 and July 1950 on discharge from active duty, the bones, joints and muscles revealed no significant abnormality. No pertinent defects were recorded. Post service, the Veteran filed a claim of entitlement to service connection for a back injury by aggravation for which he stated he had been treated in Germany in 1948. A VA hospital discharge summary dated in August 1967 reflects that the appellant underwent bilateral inguinal herniorraphies. He had a history of a recurrent right inguinal hernia and left inguinal hernia of three years' duration. The appellant's medical history was remarkable for a right inguinal hernia repair in 1960 and a recurrence of such one year later. It was also reported that clinical history was positive for chronic low back pain. The Veteran was reported to have stated that he was 'born with one joint missing' in his back. VA outpatient records show that March 1992 lumbar X-rays showed interval progression of degenerative disc disease with disc space narrowing at multiple levels. The narrowing was reported to have increased since a prior lateral spine study in November 1985. The March 1992 study also revealed persistent Grade I spondylolisthesis of L5 on S1 secondary to spondylolysis of the pars intra-articularis at L5. In April 1995, the Veteran was noted to have had bilateral hernia repairs in 1959, 1970 and 1991. The records also indicated that he had chronic low back pain. A claim of entitlement to service connection for low back and hernia disorders was received in January 2010. VA outpatient records dating from 1992 through 2010 reflect that the appellant was treated for complaints and disorders including worsening chronic low back pain that he had had 'all my life' in September 2008. In January 2010, the appellant indicated that while in the Army, he was a mail clerk and felt that he strained his back carrying mail bags. He said that pain affected the upper and lower back and radiated intermittently down the back of both legs. A September 2010 letter from G. Naco, M.D., a VA physician, stated that the Veteran had been his patient in the VA San Diego Healthcare System since July 2009, and was primarily followed for debilitating thoracic and lumbar spine pain. Dr. Naco wrote because of the appellant's report that he was hospitalized for back pain at age 20 after carrying some heavy mailbags. He noted that the Veteran stated that his medical records indicated that he had been diagnosed with prostatitis. Dr. Naco related that in his opinion, it was uncommon for a young person to be hospitalized for prostatitis, and that it was possible and more likely that a younger person might have a debilitating back problem, leading to radiculopathy. Dr. Naco added that a pinched nerve due to inflammation in the lumbar spine might lead to urinary incontinence temporarily, and that it should be considered that there might have been a misdiagnosis or misdocumentation at that time. The Veteran was afforded a VA examination in December 2010. The appellant provided history to the effect that while in service in 1949, he injured his back carrying heavy mailbags, and was seen by a military doctor for back pain who diagnosed prostatitis for which he was hospitalized. The examiner indicated that the claims folder was reviewed and provided a chronology of the pertinent evidence dating from service. Following examination, the examiner stated that she had carefully read and reviewed the appellant's medical records, and that he had been treated for prostatitis with penicillin and sulfa in 1949. The examiner found no documentation of back pain or back injury on her review of the service treatment records. She opined that the Veteran had not been misdiagnosed in service in 1949, and reiterated that he was hospitalized for prostatitis and not back injury, back pain, or back strain. The examiner stated that although Dr. Naco had written that the appellant must have been misdiagnosed or misdocumented on his hospital admission for prostatitis, he did not have the benefit of the Veteran's service treatment records when he wrote the letter. Subsequently received was a September 2000 X-ray report of the lumbosacral spine from the Scripps Memorial Hospital that was interpreted as showing mild, grade I retrolisthesis of L3 on L4 with mild degenerative disc disease at those levels and mild anterior osteophytes at the L2-3 level, as well as at the L3-4 level, with associated vacuum discs. Legal Analysis Service connection for a low back disorder. The Board has carefully reviewed the evidence but finds that the preponderance of the most probative evidence is against granting service connection for a low back disorder. Hence, the benefit sought on appeal is not warranted. Although the evidence indicates that the Veteran appears to admit to a pre-existing back disorder, his service entrance examination reports are negative for any musculoskeletal defect, and hence, he is entitled to the presumption of soundness at enlistment. 38 U.S.C.A. § 1111. The Veteran contends that he injured his back carrying mailbags and received treatment for such during active duty. However, service treatment records are completely silent for any back complaints or findings, to include at both service separation examinations in 1947 and 1950. As well, there is no documentation showing treatment for any low back symptoms immediately after discharge from active duty. The evidence shows that the first indication of any low back disorder is reported in 1967 when a claim was received. This is approximately 17 years after discharge from active duty. The evidence reflects a diagnosis of degenerative disc disease and related back conditions in 1995. In view of such, entitlement to presumptive service connection for a disorder such as lumbar arthritis, is not in order as neither arthritis nor an organic disease of the lumbar nervous system was compensably disabling within a year following the appellant's separation from active duty. 38 C.F.R. §§ 3.307, 3.309. The most probative evidence in the record does not show other than that a back disorder developed many years after discharge from active duty. The Board recognizes that lay assertions may serve to establish a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (2007); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Veteran's statements as to injury and continuing symptoms since service constitute competent evidence. However, the Board must determine whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Similarly, the Board can weigh the absence of contemporaneous medical evidence against the lay evidence of record. Additionally, the amount of time that has elapsed between military service and the first post-service evidence of complaint or treatment may be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In considering the lay and clinical history as reported above, the evidence shows no documentation of an in-service injury and no evidence of treatment for the back or a hernia in service. Rather, the service department records reflect normal findings. Nothing in the post service clinical records suggests low back disorder deriving from service except for the Veteran's own statements to this effect. Despite the appellant's assertions that he continued to have low back symptoms after service, there is no reliable post service showing of any continuity of in-service low back symptomatology. See 38 C.F.R. § 3.303. The Veteran asserts that treatment and hospitalization for prostatitis in service was actually the result of an in-service back injury and strain. In this regard, the appellant enlisted the assistance of his treating VA physician, Dr. Naco who found that prostatitis in a young man was anomalous, and that the appellant might well have been misdocumented or misdiagnosed in service such that he might actually have had back problem instead. The Board observes, however, that the Veteran was clearly treated for prostatitis during active duty and no back symptoms were recorded at that time. As corroborated by the VA examiner in December 2012 who reviewed the claims folder, including the service treatment records, the claimant was treated for prostatitis with penicillin and sulfa. He was neither treated, nor did he report symptoms of a back injury, back pain, or a back strain at that time. The 2012 VA examiner unequivocally stated that the Veteran had not been misdiagnosed in service in 1949, and that Dr. Naco did not have the benefit of the Veteran's service treatment records when he wrote his letter. The Board finds that Dr. Naco clearly appears to have premised his opinion on the Veteran's own account of the onset of back pain that is not credible, and not corroborated by the objective record. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet.App. 458, 461 (1993). As such, Dr. Naco's conjecture and opinion are not reliable or persuasive and lack probative value. In this instance, the 2012 VA examiner's opinion is assigned greater probative value. This opinion, based on rationale as reported above is reliable and constitutes negative evidence against the claim. As such, the Board concludes that there is no reliable and probative evidence that a low back disorder is related to service or to any incident therein. Thus the preponderance of the evidence is against the claim and entitlement to service connection for a low back disorder is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990). Service connection for inguinal hernia. Service treatment records are negative for complaints related to a lifting injury and inguinal hernia, to include on service separation examinations in 1947 and 1950. There is no documentation showing treatment for an inguinal hernia immediately after discharge from active duty. Rather, the evidence shows that the first indication of an inguinal hernia dates from August 1967. At that time the appellant was hospitalized for bilateral herniorrhaphy, and he reported a history of a recurrent process on the right dating back to 1960. The Veteran reports hernia treatment dating from 1959. However, even this is almost a decade after discharge from active duty, and a medically sound basis has not been presented attributing the disability to service. Therefore, the defect in the Veteran's claim in this regard is lack of probative evidence of a nexus to service. As such service connection for inguinal hernia must be denied as directly related to service. The Veteran primarily asserts that inguinal hernia is causally related to a back problem of service onset. He maintains that his VA physician told him after his third hernia repair that his progressively weakening back led to the development of hernia. As held above, service connection is not warranted for a low back disorder. Indeed, service connection is not in effect for any disability. As such, it is unnecessary to discuss whether inguinal hernia might be secondary to a service-connected disorder. Therefore, service connection for inguinal hernia secondary to a service-connected disorder, or on the basis of aggravation by a service-connected disability must be denied. 38 C.F.R. § 3.310. The preponderance of the evidence is against the claim. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for inguinal hernia is denied. REMAND The Board finds that further development is warranted with respect to the claim of entitlement to service connection for residuals of prostate cancer. The service treatment records reflect that he was hospitalized between February and March 1949 for chronic severe non-venereal prostatitis of three months duration, the cause of which was reported to be undetermined. Post service, VA clinical records dated in February 1995 indicate that the appellant underwent a transurethral resection of the prostate in 1989 for a history of obstructive uropathy. Adenocarcinoma of the prostate was diagnosed in April 1995 for which he underwent a perineal radical prostatectomy the following month. Under the VCAA, VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). The threshold for securing an examination under the VCAA is low. Id. With these tenets in mind and upon further review of the record, the Board finds that a remand for an opinion is necessary to render a fully informed appellate decision as to whether there is any relationship between in-service chronic prostatitis and post service prostate cancer. See Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Accordingly, this case is REMANDED for the following actions: 1. Schedule the Veteran for an examination by a VA urologist. The claims file and access to Virtual VA clinical records must be made available to the urologist for review prior to examination. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. The clinical findings should be reported in detail. After a thorough review of the evidence, the urologist must opine, with supporting rationale, as to whether it is at least as likely as not (50 percent probability or better) there is a relationship between chronic prostatitis in service and the postservice development of prostate cancer. The examination report must include thorough rationale for the opinion and conclusions reached. In formulating the medical opinion, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, rather that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 2. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). 3. After the development requested, the RO should review any examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 4. After undertaking any further development deemed appropriate, readjudicate the remaining issue on appeal. If the benefit is not granted, provide the appellant and his representative a supplemental statement of the case 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs