Citation Nr: 1703558 Decision Date: 02/07/17 Archive Date: 02/15/17 DOCKET NO. 13-04 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for prostatitis. 2. Entitlement to an effective date prior to February 28, 2011, for the grant of service connection for traumatic brain injury (TBI). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2000 to September 2006. He is the recipient of numerous awards and decorations, to include the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2011 and July 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board notes that a January 2014 rating decision denied Vocational Rehabilitation benefits. Later that month, the Veteran entered a notice of disagreement as to such denial. Although a statement of the case has not yet been issued, the claim is still being developed by the Agency of Original Jurisdiction (AOJ) according to the Veterans Appeals Control and Locator System. As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. In April 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. During the hearing, the Veteran set forth clear and unmistakable error (CUE) allegations regarding a March 2009 rating decision as it pertains to the denial of service connection for TBI. That CUE motion has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2016)). With regard to the Veteran's representation, the record reflects that, in September 2015, he executed a VA Form 21-22a in favor Virginia A. Girard-Brady, an attorney. However, in March 2016, he revoked her power of attorney and expressed an intent to precede pro se. See Statement (October 2016). The Board recognizes the change in representation. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issue of entitlement to an effective date prior to February 28, 2011, for the grant of service connection for TBI is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Resolving all doubt in favor of the Veteran, chronic prostatitis was incurred in service. CONCLUSION OF LAW The criteria for service connection for chronic prostatitis have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for chronic prostatitis herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran seeks service connection for chronic prostatitis, which he contends was incurred during active military service. See, e.g., Board hearing transcript (April 2016). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Historically, the Veteran's August 1998 enlistment examination report is negative for any complaints, diagnoses, or history of a prostate disorder. In July 2002, the Veteran reported contact with chlamydia. The treatment provider noted that the Veteran denied any symptoms of chlamydia, physical examination was normal, and lab results were negative for sexually transmitted diseases, to include chlamydia. See Service treatment record (STR) (July 22, 2002). Repeat lab results were again negative for chlamydia in June 2004. On June 8, 2005, the Veteran reported painful urination. He was advised to increase water consumption and return if symptoms persisted. On June 15, 2005, the Veteran reported that his symptoms had persisted. He was prescribed doxycycline, rocephin, and a three day supply of Cipro and advised to return if symptoms persisted. On June 24, 2005, the Veteran reported that his symptoms went away during the three days he was on Cipro and they returned immediately thereafter. At that time, the clinician characterized the Veteran's condition as a urinary tract infection and advised to return for observation in ten days. On July 4, 2005, the clinician diagnosed chronic prostatitis and prescribed Cipro. On separation from service in June 2006, the Veteran reported painful urination. The examiner noted that digital rectal examination was abnormal. After service, the Veteran reported that he experienced a continuation of the symptoms reported in 2005; however, he self-medicated and did not seek formal treatment until 2011. During the Board hearing, the Veteran explained that, prior to 2011, he lacked private insurance and was not eligible for VA urological treatment. In 2011, the Veteran obtained private urological treatment and gave a longstanding history of discomfort before and after ejaculation, mild dysuria, and urethral pain on emptying. The treating urologist diagnosed early prostatitis. See, e.g., Private treatment records (January 27, 2011; May 31, 2012). In June 2012, the Veteran's primary care physician opined that it is more likely than not that the Veteran's current prostatitis began during active military service. The physician noted that he was familiar with the condition and that he had reviewed the Veteran's service and post-service treatment records. He explained that the Veteran's current prostatitis was initially in 2005. In July 2013, a VA examiner opined that it is less likely than not that the Veteran's current prostatitis is related to his in-service diagnosis of prostatitis. The examiner further opined that the in-service diagnosis of chronic prostatitis was made in error, and that he was actually suffering from chlamydia. She explained that the Veteran was treated with doxycycline and rocephin, which are typically used to treat sexually transmitted diseases, and that Cipro "did not work in 2005." The examiner further reasoned that the Veteran's diagnosis was changed from chronic prostatitis to urinary tract infection. The examiner also noted that the Veteran did not report current symptoms of painful urination on separation from service. Finally, the examiner explained that there were no documented symptoms between the 2005 and 2011 diagnoses of prostatitis and that the 2011 diagnosis of "early" prostatitis implied that the disorder was developing in 2011. Initially, the Board finds that it is undisputed that the Veteran has a current diagnosis of prostatitis. Further, as previously noted, his STRs include treatment for complaints related to his prostate. Therefore, this case turns on whether his current diagnosis is related to service. The competent medical evidence addressing the etiology of the Veteran's prostatitis consists of the opinions rendered in the June 2012 by his private physician and in July 2013 by the VA examiner. The Board finds that the July 2013 VA examiner's opinion is fatally flawed. First, the examiner's finding that the Veteran had chlamydia, and not chronic prostatitis, in service is inconsistent with the evidence of record. To that end, in-service lab work affirmatively shows that such was negative for sexually transmitted diseases, including chlamydia. See STR (July 22, 2002; June 3, 2004). Additionally, the examiner's finding that drugs used to treat sexually transmitted diseases alleviated the Veteran's symptoms because Cipro did not work is inconsistent with service treatment records showing that such drugs did not remedy the Veteran's symptoms, that the Veteran's symptoms ceased during Cipro use, and that Cipro was continued after the other drugs were ineffective. See STRs (June 24, 2005; July 4, 2005). Second, the examiner's finding that the Veteran's diagnosis was changed from chronic prostatitis to urinary tract infection is based on an inaccurate factual premise. Significantly, service treatment records show that that the Veteran's diagnosis was changed from urinary tract infection to chronic prostatitis. See STRs (June 24, 2005; July 4, 2005). Third, the examiner's finding that the Veteran did not report current symptoms of painful urination on separation from service is inconsistent with the Veteran's separation examination report, which shows that he reported past or present symptoms of painful urination. Fourth, the examiner's negative opinion relied, at least in part, upon the absence of documented symptoms between 2005 and 2011, and impermissibly ignores the Veteran's competent and credible report of symptoms in and since service, as well as his explanation for the lack of treatment reports during such time period. Fifth, the examiner failed to address the fact that digital rectal examination was abnormal upon separation from service. Therefore, the Board affords no probative value to the July 2013 VA examiner's opinion as it was based on inaccurate factual premises, relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of the Veteran's disability such that his claim of service connection could be proven, and failed to address potentially favorable evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In contrast, the Board finds that the June 2012 physician's opinion is adequate to decide the issue as it was predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with approximate testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Although the opinion is not extensively detailed, it sufficiently informed the Board of the physician's judgment on the issue of nexus and the essential rationale for that opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). In sum, the Board finds that the June 2012 physician sufficiently validated the in-service diagnosis of chronic prostatitis, and related the Veteran's current diagnosis of such disease to his military service. Furthermore, such opinion is supported by the Veteran's competent and credible report of the exact same symptoms in and since service coupled with prostate abnormalities noted on separation from service. Consequently, the Board resolves all doubt in the Veteran's favor and finds that service connection for chronic prostatitis is warranted. ORDER Service connection for chronic prostatitis is granted. REMAND With regard to the appeal for an earlier effective date for TBI, the Veteran has raised the issue of CUE in a March 2009 decision that reopened a previously denied claim for service connection for TBI and denied such claim on the merits. The Veteran first raised this CUE issue at the April 2016 Board hearing, at which time he set forth his specific allegations. See Board hearing transcript, 5 (April 2016). Consequently, such matter has been referred to the AOJ for appropriate action. As the outcome of the Veteran's motion alleging CUE in the March 2009 rating decision impacts his instant appeal for an effective date, the instant appeal is inextricably intertwined with the CUE motion. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As such, Board consideration of the Veteran's instant appeal for an earlier effective date for the award of service connection for TBI must be deferred pending the AOJ's adjudication of his CUE motion. Accordingly, the case is REMANDED for the following action: After adjudicating the referred claim of whether there is CUE in the March 2009 rating decision that denied service connection for TBI, readjudicate the Veteran's appeal for an effective date prior February 28, 2011, for the award of service connection for TBI based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs