Citation Nr: 1640686 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 10-08 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for prostate disability, including as secondary to service-connected disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant (Veteran) represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which is the Agency of Original Jurisdiction (AOJ) in this matter. In October 2012 and April 2016, the Board remanded this matter for additional development. The case is again before the Board for appellate review. In August 2016, the Veteran filed formal claims for increased ratings for neck, lower back, and left shoulder disabilities, and for service connection for traumatic brain injury (TBI). The issues have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The record in this matter consists solely of electronic claims files and has been reviewed. Relevant evidence has been included in the record since the Supplemental Statement of the Case (SOC) dated in May 2016, and has been considered pursuant to the May and August 2016 waivers of initial AOJ review of the evidence. In the decision below, the Board will address the service connection claim for prostate disability. The claim for a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's prostate disability was first manifested many years after service and has not been medically related to his service; nor is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for prostate disability have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A. 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the rating decision on appeal by way of a March 2009 letter to the Veteran. The letter informed the Veteran of his duty and VA's duty for obtaining evidence, and met the notification requirements set out for service connection, and for effective dates and disability ratings. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent post-service treatment records, and in providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue decided here has been obtained. VA has obtained the Veteran's STRs and private and VA treatment records relevant to his claim. VA provided the Veteran with VA compensation examinations for his claim. Moreover, VA afforded the Veteran the opportunity to give testimony for the Board's review, which he declined. The Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. The Claim for Service Connection The Veteran claims that he incurred prostate disability during service, and developed the disorder as the result of service-connected lower back disability. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). To establish direct service connection, 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis under 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this matter, the record demonstrates that the Veteran has prostate disability. This is documented in private and VA medical evidence noting, as recent as an April 2016 VA report, benign prostatic hyperplasia (BPH). The evidence also establishes that the Veteran experienced genitourinary problems during service. The STRs note that the Veteran was treated in February 1966 for balanitis, and in June 1966 for gonococcal urethritis. The preponderance of the evidence indicates, however, that the Veteran did not incur prostate disability during service, and did not develop BPH due to lower back disability. The evidence indicates that the Veteran did not develop a chronic prostate disability until years after discharge from service. The earliest medical evidence of prostate disability following service is dated in the mid 1990s, almost 30 years after discharge from active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Indeed, while a May 1970 VA examination report notes pyuria, it notes a finding of a normal prostate on examination. Further, in a June 1994 private medical record addressing back and leg complaints, a physician notes the Veteran's reference to his prostate, but states that, "he recently saw his urologist who indicated his problem was not from the prostate." Importantly, the private medical evidence dated in the mid 1990s notes the Veteran's report that he had been treated for prostate disability since 1980 (over 10 years after discharge from service). However, during an April 1995 AOJ hearing in support of a service connection claim for back disability, the Veteran testified that he had experienced adverse back symptoms for years, and had been erroneously advised that prostate disability caused the lower back discomfort. The medical nexus evidence also counters the Veteran's claim. The record contains two medical opinions addressing this issue, both from VA. The first opinion, based on a February 2015 VA compensation examination, found that BPH was likely not incurred in service, and was likely not related to service-connected back disability. As noted by the Board in April 2016, however, the opinion was incomplete and therefore not sufficient to decide the case. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA provides a VA examination or opinion, it must ensure that the examination or opinion is adequate). The Board requested that an addendum opinion be issued. In response, the February 2015 VA examiner issued an addendum opinion in April 2016. In this opinion, the examiner once again found BPH likely unrelated to service. In support, the examiner referenced the Veteran's service treatment records which showed treatment for balanitis in February 1966 and gonococcal urethritis in June 1966. The examiner stated that balanitis is an inflammation of the foreskin of the penis, which would not affect the prostate. Further, the examiner stated that gonococcal urethritis is a urethral infection that would not cause the current BPH. The examiner explained that BPH is a common condition related to the aging process, and that the Veteran's urinary complaints are actually secondary to BPH, rather than the other way around. With regard to secondary service connection, the examiner found it unlikely that back disability would relate to BPH. In support, the examiner indicated that there was no evidence that the Veteran's back disability had caused any associated neurological disability that would affect the ability to urinate. Further, the examiner indicated an absence of aggravation here inasmuch as she found no evidence of a "lower back condition that has affected his prostate or bladder." The Board finds the February 2015 VA examiner's findings, as noted in the April 2016 addendum report, persuasive on the issues before the Board. Although the examiner was incomplete in her first report and opinion, the addendum opinion clarified this matter sufficiently. Further, the examiner indicated a review of the claims file, an interview of the Veteran, an examination of the Veteran, and, as detailed earlier, explained her findings. As this opinion is based on the evidence of record and is explained, the opinion is of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In assessing the Veteran's service connection claim, the Board has considered his lay assertions that he has received treatment for prostate problems since the 1970s, and that the disorder has been adversely affected by his lower back disability. The Veteran as a layperson is competent to attest to what he observes or senses, such as urinary problems. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). But the Veteran is not competent to provide evidence regarding the etiology of his current BPH, which is an internal disorder beyond his capacity for lay observation. Its etiology and development cannot be determined through observation or by sensation such as feeling. As such, the Veteran is not a competent witness to render a medical opinion linking his BPH either to service or to service-connected disability. He does not have the training and expertise to do so. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On the essentially medical questions before the Board, the medical evidence is more credible, and therefore of greater evidentiary value. And this evidence indicates that the Veteran's BPH does not relate to active service, or to service-connected disability. As such, the evidence preponderates against the Veteran's claim with regard to each theory of entitlement asserted. 38 C.F.R. §§ 3.102, 3.303, 3.310. As the preponderance of the evidence is against the Veteran's claim to service connection, the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert and Alemany, both supra. ORDER Entitlement to service connection for a prostate disability is denied. REMAND The claim regarding a TDIU must be remanded because it is inextricably intertwined with the pending claims for increase referred to the AOJ above. See Smith v. Gober, 236 F.3d 1370 (Fed. Cir. 2001) (separate claims should be adjudicated together when they are "intimately connected"); Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Specifically, the Veteran's entitlement to TDIU is wholly dependent on his service-connected disabilities, which he now contends are worse than currently rated. It is premature for the Board to decide TDIU with these claims pending. Further, while on remand, any outstanding VA treatment records should be included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims folder any outstanding VA treatment records dated since August 2016. 2. Adjudicate the increased rating claims for neck, back, and left shoulder disabilities, and the service connection claim for TBI. 3. The issue regarding a TDIU should then be readjudicated in light of the evidence of record to include any decision rendered on the issues addressed in paragraph (2) above. If an appealed issue remains denied, the Veteran should be provided with a SSOC and afforded a reasonable period of time within which to respond thereto. Please note that the TDIU claim is inextricably intertwined with the referred issues noted earlier, and cannot be decided until the referred issues have been finally adjudicated, or have been appealed to the Board. 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). 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 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs