Citation Nr: 18157481 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-42 758 DATE: December 13, 2018 ORDER Service connection for urethritis is denied. REMANDED Service connection for tarsal tunnel syndrome of the right lower extremity is remanded. Service connection for tarsal tunnel syndrome of the left lower extremity is remanded Service connection for a rib disorder is remanded. A higher (compensable) initial disability rating for sinusitis is remanded. A higher (compensable) initial disability rating for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran’s in service urethritis resolved without residuals during service. 2. Any symptoms resembling urethritis are due to the service connected prostatitis and/or benign prostate hypertrophy. CONCLUSION OF LAW The criteria for service connection for urethritis have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from June 1981 to February 2012. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. Since the issuance of the July 2016 statement of the case (SOC), additional evidence has been received by the Board. While no waiver of initial RO consideration of this evidence has been received, as the majority of the issues on appeal are being remanded for additional development, and as the evidence is merely cumulate or redundant of other evidence received as to the question of service connection for urethritis, the Board finds no such waiver is necessary at this time. 38 C.F.R. § 20.1304 (2017). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). No further discussion of VA’s duties to notify and assist is necessary as to issues being remanded in the instant decision. As to the issue of service connection for urethritis, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the September 2012 rating decision denying service connection for urethritis. Regarding the duty to assist, the record reflects that VA obtained all documentation relevant to the question of service connection for urethritis, and the Veteran was provided with adequate medical examinations in April 2012 and July 2016. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Service Connection for Urethritis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran contends that he is currently diagnosed with urethritis, which he asserts is related to urethritis treated in service. Having reviewed all the evidence of record, the Board finds that the Veteran’s in service urethritis resolved without residuals during service, and that any symptoms resembling urethritis are due to the service connected prostatitis and/or benign prostate hypertrophy. An August 2005 service treatment record reflects that the Veteran was diagnosed with, and treated for, chlamydia trachomatis urethritis. Per a later August 2011 service treatment record, benign prostatic hypertrophy was listed as a chronic active problem while urethritis was not. The Veteran received a pre service discharge general medical examination in December 2011. At the conclusion of the examination, the examiner did not diagnose urethritis, as the examiner opined that the urethritis diagnosed in service had completely resolved. A VA male reproductive system examination was performed in July 2016. Per the examination report, the diagnosis was chronic prostatitis and benign prostate hypertrophy, with no diagnosis of urethritis. After reviewing the evidence of record, the VA examiner opined that while the Veteran had currently diagnosed chronic prostatitis that was related to in service prostate complaints and treatment, the Veteran did not have a current diagnosis of urethritis that was related to service, as the evidence showed that the in service chlamydia trachomatis urethritis had resolved without residuals. In other words, the VA examiner found that the Veteran’s genitourinary system symptoms were due to the service connected prostatitis and/or benign prostate hypertrophy. Review of the other evidence of record, including VA and private treatment records, does not reflect that the Veteran has a current diagnosis of urethritis, or that the Veteran’s genitourinary system symptoms may be due to a disability other than the service connected prostatitis and/or benign prostate hypertrophy. The Board has considered the Veteran’s contention of a current urethritis disability. While the Veteran is competent to offer lay statements regarding observable genitourinary system symptoms, to include urinary difficulties, here, as a lay person, under the facts of this case, the Veteran does not have the requisite medical training or credentials to be able to render a competent medical opinion concerning whether certain genitourinary system symptoms are due to urethritis or the currently diagnosed and service connected prostatitis and benign prostate hypertrophy, or differentiation between symptoms of these disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that lay competency is determined on a case by case basis); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Having reviewed all the evidence of record, lay and medical, the Board finds that the Veteran’s in service urethritis resolved without residuals during service and any symptoms resembling urethritis are due to the service connected prostatitis and/or benign prostate hypertrophy. As such, the Veteran does not have a current diagnosis of urethritis that may be subject to service connection. This finding is supported by the reports from the December 2011 and July 2016 examinations and opinions. No credible evidence to the contrary has been received. While the Board has considered the Veteran’s argument that the genitourinary system symptoms are due to urethritis, for the reasons discussed above, the Board finds this lay statement to be outweighed by the other evidence of record. Because the preponderance of the evidence is against service connection for urethritis, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service Connection for Tarsal Tunnel Syndrome of the Right Lower Extremity 2. Service Connection for Tarsal Tunnel Syndrome of the Left Lower Extremity In a November 2011 statement, the Veteran requested service connection for bilateral foot numbness. Service treatment records reflect that during service the Veteran complained of numbness and tingling in the feet, including during deployment to Iraq. Per a May 2015 private treatment record from provider OA, nerve conduction testing showed tarsal tunnel syndrome of the bilateral lower extremities. To date, VA has not obtained an opinion concerning whether the currently diagnosed tarsal tunnel syndrome is related to the in service numbness and tingling in the feet, and remand to obtain such an opinion is necessary. The Board notes that the private OA treatment records in VA’s possession date back to September 2014; however, per a May 2015 record, treatment may have gone back to 2010 or 2011 (during service). As such, on remand VA should attempt to obtain any outstanding OA treatment records for the period prior to September 2014. 3. Service Connection for a Rib Disorder Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and is seeking service connection for chronic rib cage pain. Service treatment records reflect that the Veteran sought treatment for rib cage pain during service in February 2002. Per the report from a December 2011 VA general medical examination, the Veteran complained of daily rib pain that lasted for an hour. At the conclusion of the examination, the VA examiner opined that the Veteran did not have a currently diagnosed rib disorder; however, no opinion was provided as to the cause of the pain, such as one of the Veteran’s many diagnosed medical problems or an undiagnosed illness. As such, the Board finds remand for a clarifying examination and opinion to be warranted. 4. Compensable Initial Disability Rating for Sinusitis 5. Compensable Initial Disability Rating for Migraine Headaches Per the report from a July 2016 VA headache examination, and elsewhere throughout the record, the Veteran advanced receiving treatment for head pain from private neurologist Dr. E. It does not appear that VA has received Dr. E’s treatment records. As the treatment records likely contain relevant evidence concerning the Veteran’s migraine and sinusitis head pain, remand to obtain these outstanding private treatment records is necessary. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran last received VA sinusitis and migraine examinations in July 2016. Statements made by the Veteran and VA treatment records received subsequent to the examinations indicate that symptoms of the disabilities may have worsened. As remand to obtain outstanding documentation is necessary, the Board will also direct that new VA sinusitis and migraine examinations be conducted. The aforementioned matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records relevant to the remanded issues on appeal. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. In particular, VA should request releases to obtain outstanding treatment records from private provider OA and private neurologist Dr. E. For private provider OA, it is important that VA request treatment records for the period prior to September 2014. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the remanded issues on appeal, not already of record, for the period from July 2018. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiners should provide the following opinions: Bilateral Tarsal Tunnel Syndrome Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed bilateral tarsal tunnel syndrome is related to the Veteran’s in service complaints of bilateral foot numbness, or is otherwise related to service? Rib Disorder A) Does the Veteran have a currently diagnosed rib cage disorder? B) If the Veteran does have a currently diagnosed rib cage disorder, is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed rib case disorder is related to the Veteran’s in service complaints of rib cage pain, or is otherwise related to service? C) If the Veteran does not have a currently diagnosed rib cage disorder, are the Veteran’s rib cage pain symptoms due to a currently diagnosed medical disability? D) If the Veteran does not have a currently diagnosed rib cage disorder and the rib cage pain symptoms are not attributable to a currently diagnosed medical disability, is it at least as likely as not (50 percent or higher degree of probability) that the rib cage pain symptoms are due to an undiagnosed illness or a medically unexplained chronic multisymptom illness? Migraine Headaches The VA examiner should report the extent of the migraine headache symptomatology in accordance with VA rating criteria.   Sinusitis The VA examiner should report the extent of the sinusitis symptomatology in accordance with VA rating criteria. 4. Then, readjudicate the issues of service connection for a rib disorder and bilateral tarsal tunnel syndrome, and compensable initial disability ratings for migraine headaches and sinusitis. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel