Citation Nr: 1331499 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-00 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for prostate disability, to include prostatitis and benign prostatic hypertrophy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserves, with active duty service from September 1979 to December 1979, December 1990 to August 1991, December 1995 to August 1996, and January 2003 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefits sought on appeal. In that rating decision, the RO declined to reopen a previously denied claim for service connection for prostatitis. A video conference hearing was held in October 2009 with the Veteran in Little Rock, Arkansas, before the undersigned Acting Veterans Law Judge, sitting in Washington, D.C. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A transcript of the hearing testimony is in the claims file. The appeal was remanded in January 2010. In July 2012 the Board reopened the claim of entitlement to service connection for a prostate disability and remanded the matter for additional development. That development has been completed. The issue of entitlement to service connection for a bilateral foot condition has been raised by the record, specifically in the Veteran's April 2010 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that another remand is needed prior to adjudication of the Veteran's claim. Pursuant to the Board's July 2012 remand directives, the Veteran underwent a VA examination in July 2012. In that examination report, the VA examiner concluded that the Veteran did not have a current diagnosis of prostatitis and that his previous episode was acute and temporary in nature and had resolved. The examiner found that the Veteran had a current diagnosis of benign prostate hypertrophy, which was originally diagnosed by a private physician, Dr. J.S.G., in 2002, after the Veteran's third period of service and prior to his enlistment into his fourth and final period of service. The VA examiner opined that it was less likely than not that the Veteran's benign prostate hypertrophy was related to his military since it was due to normal aging process. The VA examiner further opined that it was less likely than not that his benign prostate hypertrophy was aggravated by military service as the enlargement reflected the "aging process." The VA examiner also considered the Veteran's numerous complaints of urinary frequency shown in 2003 medical records, shortly after his separation from his fourth period of service, and since then. The VA examiner opined that although benign prostate hypertrophy can cause increased frequency of urinary, it was more likely that his urinary frequency complaints were due to his diagnosed diabetes mellitus or due to the medication to treat his hypertension. However, the examiner then stated that "since the [benign prostate hypertrophy, diabetes mellitus and hypertension] are not related to military service, it is likely they or their symptoms, side-effects or treatments are aggravations related to military service." Although this final statement may be simply a typographical error, the examiner's opinion unclear with respect to whether pre-existing benign prostate hypertrophy was aggravated by the Veteran's fourth period of service. In this regard, the Board notes that when no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness, the burden then falls on VA to show clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. See VAOPGCPREC 3-03. Here, indeed, the available private treatment records from Dr. J.S.G. show that the Veteran was assessed with mildly enlarged prostate in January 2002 and later 2002 treatment records reflect a diagnosis of mild benign prostate hypertrophy. However, while the July 2012 VA examination report continued to reflect findings of mild enlargement of the prostate, the VA examiner's medical conclusion that the Veteran's benign prostate hypertrophy was not likely aggravated by service does not use the correct terminology - clear and unmistakable - as required for an opinion regarding pre-existing conditions. On remand, an addendum statement should be obtained from the July 2012 VA examiner on whether there is clear and unmistakable evidence that the Veteran's pre-existing benign prostate hypertrophy was not aggravated by his fourth period of service beyond the natural progress of the disease. In doing so, the VA examiner should comment on why the Veteran's complaints of increased urinary frequency shown shortly after his separation from his last period of service and since then do not reflect an increase in his benign prostate hypertrophy beyond the natural progression of the disease. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran's claims folder to be reviewed by the VA examiner who conducted the July 2012 examination, or an appropriate specialist, if the July 2012 VA examiner is no longer available, in order to obtain a medical opinion on the Veteran's benign prostate hypertrophy. The claims file should be made available to the examiner, and the examiner should indicate that the claims file was reviewed in the examination report. The examiner should address the following questions: (a) Do the findings contained in the 2002 private treatment records of mildly enlarged prostate demonstrate clear and unmistakable evidence that that the Veteran had benign prostate hypertrophy at the time of his re-activation in January 2003? (b) If the examiner concludes that there is clear and unmistakable evidence that the Veteran had benign prostate hypertrophy at the time of his re-activation in January 2003, the examiner should then determine whether there is clear and unmistakable evidence that such a pre-existing benign prostate hypertrophy was not aggravated by service (i.e., did not undergo an increase in severity, beyond natural progression). In doing so, the VA examiner should comment on why the Veteran's complaints of increased urinary frequency shown in 2003, shortly after his separation from his last period of service, and since then do not reflect an increase in his benign prostate hypertrophy beyond the natural progression of the disease. In answering the above questions, the examiner should be aware that the regulation defines "clear and unmistakable evidence" as obvious or manifest evidence. 38 C.F.R. § 3.304(b). "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. (c) If the examiner determines that there is not clear and unmistakable evidence that the Veteran had benign prostate hypertrophy at the time of his re-activation, then the examiner should determine whether it is at least as likely as not (50 percent probability or more) that his current benign prostate hypertrophy was incurred in or is otherwise related to his fourth period of service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner should review the claims file and provide a rationale as to any opinions expressed. If the examiner is unable to provide any of the requested opinions, then he should state so and why. 2. After ensuring that the requested actions have been completed to the extent possible, the RO/AMC should then review the Veteran's claim for entitlement to service connection for prostate disorder. If the claim is denied, issue a supplemental statement of the case to the Veteran and her representative, and provide 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). _________________________________________________ J. K. BARONE Acting 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) (2013).