Citation Nr: 1803514 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-27 642A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic prostatitis, to include as secondary to diverticulitis. 2. Entitlement to service connection for a low back condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1992 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2017, the Board remanded this matter in order to afford the Veteran his requested Board hearing. In August 2017, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Finally, the Board notes that while this claim was in remand status, the Veteran filed a timely notice of disagreement (NOD) to an August 2017 rating decision denying entitlement to service connection for unspecified depressive disorder. When an NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). However, a review of the claims file shows that the AOJ acknowledged receipt of the NOD in January 2018 and is actively developing that claim. Accordingly, the Board declines to exercise jurisdiction over that claim for Manlincon purposes as no such action on the part of the Board is warranted at this time. The issue of entitlement to service connection for a low back condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's chronic prostatitis is causally related to his service-connected diverticulitis. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for establishing entitlement to service connection for chronic prostatitis have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As the Board's decision to grant the Veteran's claim of entitlement to service connection for chronic prostatitis is completely favorable, no further action with respect to such issue is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992). II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. Secondary service connection is provided for disability that is caused by a service connected disease or disability; or that is aggravated by a service connected disease or disability. 38 C.F.R. § 3.310(a), (b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his chronic prostatitis is due to his service-connected diverticulitis. Specifically, the Veteran asserts that he developed prostatitis due to wearing a Foley catheter for a week after undergoing surgery for his service-connected diverticulitis. A March 2012 private treatment record shows that the Veteran underwent an excision of the left colon after being admitted to the hospital for perforated diverticulitis. Thereafter, an April 2012 VA abdomen CT scan showed mild prostatic hypertrophy. A January 2014 VA treatment record shows that the Veteran reported recurrent hematuria and an increase in urinary urgency and frequency. A May 2014 VA treatment record shows that the Veteran reported urinary frequency and occasional episodes of hematuria since his emergency surgery for perforated diverticula. A June 2014 VA urology consultation note shows that the Veteran reported nocturia since colon surgery in 2012 when he had a Foley catheter in situ for a week. He was diagnosed with nocturia and abnormal urine "probably due to chronic prostatitis due to past h/o Foley catheter." An October 2014 VA urology follow-up note shows that the Veteran underwent a cystoscopy, which showed chronic inflammatory prostatitis. The Veteran was afforded a VA examination in November 2014. The examiner noted a diagnosis of chronic prostatitis and opined that it was not caused by or a result of diverticulitis because "diverticulitis is a bowel inflammatory condition [and] does not effect [sic] vasculature or nerves of the reproductive tract." The examiner also noted that the Veteran was 40 years old and that "after 35 it is common for males to have enlarged prostate and difficulty with chronic prostatitis that can occur as the natural aging process in some men." In addition, the examiner indicated that the Veteran had signs of chronic prostatitis on urinalysis since 2010, predating his diverticulitis surgery. Having considered the above evidence in a light most favorable to the Veteran, the Board concludes that he is entitled to service connection for chronic prostatitis as secondary to a service-connected diverticulitis. As an initial matter, the record shows a diagnosis of chronic inflammatory prostatitis. See November 2014 VA Examination Report; October 2014 VA Treatment Record. Thus, there is evidence of a current disability. Additionally, the Veteran has service-connected diverticulitis. The question then becomes whether a nexus, or relationship, between the Veteran's current disability and the Veteran's service-connected disability has been shown. In this case, the evidence contains conflicting opinions regarding the Veteran's chronic prostatitis and its relationship to his service-connected diverticulitis. In this regard, the Veteran's treating urologist opined that the Veteran's chronic prostatitis was probably due to his history of a Foley catheter during his diverticulitis surgery. However, the November 2014 VA examiner opined that the Veteran's chronic prostatitis was unrelated to his service-connected diverticulitis. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that the VA physician did not have access to the Veteran's complete claims file; however, the record does reflect that he was familiar with the Veteran's medical history, to include the circumstances of his diverticulitis surgery and the development of his prostatitis symptoms, and that he did not rely upon any assumptions or information that would be inconsistent with the evidence in the claims file. Specifically, the physician had complete access to the Veteran's previous lab and imagining results, but still opined that the Veteran's chronic prostatitis was due to his diverticulitis surgery. Thus, the opinion remains probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The November 2014 VA examiner reviewed the claims file and provided a rationale for the negative nexus opinion, but seems to have not fully accounted for the Veteran's competent and credible reports of symptomatology immediately after surgery and did not explain why the Foley catheter could not lead to the Veteran's prostatitis diagnosis just two years later. That said, the Board finds no adequate reason to favor the negative opinion over the positive opinion that is favorable to the Veteran's claim. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the positive and the negative opinions put the evidence in relative equipoise as to whether the Veteran's chronic prostatitis is due to his service-connected diverticulitis. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for chronic prostatitis is warranted, as secondary to service-connected diverticulitis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic prostatitis as secondary to service-connected diverticulitis is granted. REMAND After a careful review of the Veteran's claims file, the Board finds that further development is required prior to adjudicating the remaining issue on appeal. The Veteran contends that his current low back condition is due to an injury he sustained during active service. Specifically, he asserts that he fell and hit his back on a locker and that he had pain "off and on" since that injury. See August 2009 Statement in Support of Claim. A January 1994 service treatment record shows that the Veteran reported back pain after slipping on water and falling against a wall locker. He also reported muscle spasm and tenderness to palpation over the mid-thoracic spine. Post-service private treatment records show that the Veteran reported a history of a chronic low back strain in December 2003, March 2004, and February 2005. A March 2010 VA new patient note shows that the Veteran reported back pain since 1994. The Veteran was afforded a VA examination in December 2009. The Veteran reported intermittent low back pain since his injury in service. The examiner diagnosed the Veteran with low back strain and opined that it was less likely as not related to service because it was more likely due to "obesity, current vocation, decreased physical activity, and a variety of other factors, than due to his military service." The examiner also indicated that "[t]here does not appear to be any appreciable permanent impairment sustained during his military duty." The Board finds that this opinion is conclusory and unsupported by an adequate explanation of rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Accordingly, the Board finds that an addendum opinion is needed. Lastly, as the record reflects that the Veteran receives ongoing VA treatment, updated treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for the issue on appeal dated from April 2016 to the present. 2. After all available records have been associated with the claims file, return the claims file to the December 2009 VA examiner for an addendum opinion. If the previous examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. After reviewing the record and, if necessary, examining the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed low back condition had its onset during service or is related to any in-service disease, event, or injury, to include the documented January 1994 back injury. In so opining, the examiner should address the likelihood that in-service injuries such as the ones described by the Veteran and documented in the service treatment records could have caused the Veteran's low back condition. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, particularly the Veteran's statements regarding symptoms since service. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims. If benefits sought on appeal remain denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs