Citation Nr: 18144674 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-24 047 DATE: October 25, 2018 ORDER Entitlement to service connection for a heart disability is denied. Entitlement to an initial compensable disability rating for chronic prostatitis is denied. REMANDED Entitlement to service connection to a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The competent and credible evidence does not demonstrate that the Veteran has a current diagnosis for a heart disability. 2. The Veteran’s chronic prostatitis did not result in any symptomatology. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for an initial compensable disability rating for chronic prostatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7527 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for a heart disability The Veteran contends that he has a heart disability due to his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. While April and May 1994 service treatment records show that the Veteran had a T-wave abnormality that was possibly an inferior ischemia, post-service treatment records do not show that the Veteran has been diagnosed with a heart disability. Further, an October 2011 VA treatment record shows that the Veteran’s heart had a regular rate and rhythm. There is no medical evidence that the Veteran has been diagnosed with a heart disability. The Board recognizes that the Veteran contends that he has a heart disability; however, he does not have the specialized medical training to diagnosis a heart disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing a heart disability is medically complex in nature. Jandreau v. Nicholson, 492Vet. App. 1372 (Fed. Cir.2997). Therefore, any opinion by the Veteran regarding the diagnosis of a heart condition is not competent evidence. The Veteran has not presented, identified, or alluded to the existence of any post-service medical evidence of a diagnosis of a heart disability and the evidence of record does not show that the Veteran has such a disability. Here, no underlying disability has been clinically diagnosed during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at any time during the pendency of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Accordingly, without competent medical evidence of record that the Veteran has a heart disability, the claim for service connection for a heart disability must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 1. Entitlement to an initial compensable disability rating for chronic prostatitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. 1155; 38 C.F.R. 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. 4.7. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). The Veteran’s chronic prostatitis is currently rated as noncompensably disabling, effective July 1, 1994, under 38 C.F.R. § 4.115b, Diagnostic Code 7527. Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. For evaluations based on urine leakage, due to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed less than 2 times per day; a 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times a day; and a 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. For evaluations based on urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours or awakening to void two times per night; a 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night; and a 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five or more times per night. Id. For evaluations based on obstructive voiding, a noncompensable rating is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year; a 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months; and a 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. Id. Urinary tract infection may be rated as renal dysfunction. For evaluations based on urinary tract infection, a 10 percent rating is warranted for long-term drug therapy, 1 to 2 hospitalizations per year, and/or requiring intermittent intensive management; and a 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Id. For evaluations based on renal dysfunction, a noncompensable rating is warranted for albumin and casts with history of acute nephritis; or, hypertension noncompensable under Diagnostic Code 7101; a 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cell; or transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101; a 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101; a 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80 mg %; or, creatinine 4 to 8 mg %; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; and a 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg %; or, creatinine more than 8 mg %; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants the assignment of a 100 percent evaluation. Id. In an October 1994 statement, the Veteran stated that he had gone to the hospital for problems with his prostate during his entire military career. A March 2009 VA physical was performed and was negative for any symptoms or findings pertaining to chronic prostatitis. Genitourinary examination was negative for symptoms. In a November 2011 VA examination, the Veteran was diagnosed with chronic prostatitis. The Veteran reported that he had had intermittent periods of prostatitis in service with sharp pain after urination in the suprapubic area and that his disability had totally resolved many years ago, specifically around 1999. He stated that at that time he had hematuria and pain. He denied any current symptoms or treatment for prostatitis. The Veteran’s chronic prostatitis was not treated with continuous medication. The examiner found that the Veteran did not have voiding dysfunction, erectile dysfunction, or a history of recurrent symptomatic urinary tract or kidney infections. The examiner noted that since the Veteran had not had any symptoms of chronic prostatitis in 20 years, he did not feel it was necessary to perform a rectal examination. In the May 2016 substantive appeal and May 2017 lay statement, the Veteran stated that he did not have prostatitis prior to service. In light of the foregoing, the Board finds that an initial compensable disability is not warranted. The objective, clinical evidence does not show that the Veteran has had any symptomatology associated with his chronic prostatitis at any point since the effective date of the grant of service connection. In this regard, the evidence does not show that the Veteran had any voiding dysfunction, renal dysfunction, urinary frequency, obstructed voiding, or urinary tract infection due to his chronic prostatitis. In fact, the Veteran reported at the November 2011 VA examination that his chronic prostatitis totally resolved in 1999. While the Veteran indicated at the November 2011 VA examination that his chronic prostatitis resulted in sharp pain after urination and hematuria due to his disability prior to 1999, these reported symptoms would not support a compensable disability rating under Diagnostic Code 7527. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s initial compensable rating claim for chronic prostatitis. Therefore, the benefit-of-the-doubt rule does not apply and an initial compensable disability rating for chronic prostatitis must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection to a neck disability is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for obstructive sleep apnea is remanded. In the May 2016 substantive appeal, the Veteran indicated that there were outstanding military records from the Yokota Air Force Base from July 1994 to December 2006. Review of the record shows that these documents have not been associated with the claims file. As such, a remand is required to obtain these outstanding military records. The November 2011 VA examination is inadequate to make an informed decision on the Veteran’s claim for service connection for a neck disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner opined that it was less likely than not that the Veteran’s neck disability was due to falling because of his seizure disorder as service treatment records did not show that he had any neck injuries at the time of his seizures and his only documented head trauma was prior to service. However, the examiner did not address an April 1980 service treatment record showing that the Veteran had been struck on the left frontal region when the he was unconscious from a seizure or December 1981 service treatment records showing complaints of neck pain and an assessment of possible cervical spine degenerative disc disease. The examiner also did not address the Veteran’s contention in a September 2009 statement that his service-connected seizure disorder caused pain and numbness in the nerves of his upper back. As stated, a September 2009 lay statement, the Veteran contended that his service-connected seizure disorder caused the pain and numbness in the nerves of his upper back. VA treatment records indicate that the Veteran is currently diagnosed with back spasms. However, the record does not include an etiological opinion, and the Board finds that the available competent evidence is insufficient to decide the claim. Hence, a remand to provide a VA examination to determine the etiology of the Veteran’s back disability is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records, to include those from the Yokota Air Force Base from July 1994 to December 2006. 2. After the above is completed, to the extent possible, obtain a supplemental VA opinion. Provide the claims file, including a copy of this REMAND, to an appropriately qualified VA examiner. After reviewing the claims file, the examiner should address: (a) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed neck disability had its onset during active duty service, or was otherwise etiologically related to service; and (b) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed neck disability is caused by the Veteran’s service-connected grand mal seizure disorder? (c) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed neck disability is aggravated (permanently increased in severity beyond the natural progress of the disorder) by the Veteran’s grand mal seizure disorder? (d) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed back disability is caused by the Veteran’s grand mal seizure disorder? (e) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed back disability is aggravated (permanently increased in severity beyond the natural progress of the disorder) by the Veteran’s service-connected grand mal seizure disorder? All opinions expressed must be accompanied by a complete rationale. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel