Citation Nr: 1807166 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-18 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for urinary frequency due to benign prostatic hypertrophy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from April 1978 to September 1998. For his meritorious service, the Veteran was awarded (among many other decorations) the Army Commendation Medal, and the Army Achievement Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing held at the New Orleans, Louisiana RO. A transcript of the hearing is of record. FINDING OF FACT The competent, probative evidence does not demonstrate that the Veteran's urinary frequency due to prostatic hypertrophy is related to active duty service. CONCLUSION OF LAW The criteria for service connection for urinary frequency due to prostatic hypertrophy have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the appellant 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 duty to assist argument). Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit held that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). See also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which factual determinations are going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In addition, as noted above, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, the U.S. Court of Appeals for Veterans Claims (Court) held that the credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). Urinary Frequency Due to Benign Prostatic Hypertrophy The Veteran seeks service connection for urinary frequency due to benign prostatic hypertrophy that he asserts is the result of active duty service. Specifically, the Veteran asserts that his urinary frequency is the result of a prostate condition, either prostatitis or benign hypertrophy, that developed during active duty service. The Veteran's service treatment records from 1991 reflect treatment for prostatitis and frequent urination. The Veteran's February 1998 separation examination noted frequent urination. November 1997 treatment records, noted the Veteran's complaints of frequent urination; however, no diagnosis was provided. In July 2009, the Veteran was provided a VA examination. At the examination, the Veteran reported the onset of his urinary urgency and frequency to be 1991. The Veteran described being seen by military doctors, but not being referred to a urologist. The examiner noted that the Veteran had two microwave procedures (a procedure which coagulates the prostate and relieves obstruction) but had little improvement in his symptoms. The Veteran was diagnosed with urinary frequency due to prostate problems; chronic prostatitis. In a February 2010 addendum opinion, the VA examiner determined that the Veteran's symptoms of urinary frequency and diagnosis of prostatitis were not caused by or a result of prostatitis in service. The examiner opined that the Veteran had benign hypertrophy with bladder outlet obstruction; however, at the time, he did not have prostatitis. The examiner noted reviewing the Veteran's service treatment records and that the Veteran was treated with antibiotics in 1991 for prostatitis and infection of the prostate. He noted that the Veteran was also treated in 1997 and 1998 for prostatitis, although urine cultures were negative for any infection. The examiner noted that medical records indicate that the Veteran's symptoms resolved in February 1999. The VA examiner remarked that the Veteran's microwave procedures in September 2008 and March 2009. He also commented that treatment records reflect a the diagnosis of benign prostatic hypertrophy with bladder outlet obstruction. The VA examiner highlighted the Veteran's treatment for benign prostatic hypertrophy by another physician in 2008, along with the diagnosis of benign prostatic hypertrophy with bladder outlet obstruction. He noted that the bladder outlet obstruction is the etiology of his symptoms of frequent voiding, nocturia and urgency; however, he did not complain of pain with urination as he did earlier. The February 2010 VA examiner determined that the bladder outlet obstruction was present when he had prostatitis and his current benign prostatic hypertrophy; however, the reasons for his obstruction are different. In June 2013, the Veteran was provided an additional VA examination. The June 2013 VA examiner determined that the Veteran's prostatic hypertrophy diagnosis represents a disease entity independent of the prostatitis noted in his service treatment records. The examiner opined that prostatitis is generally an acute condition; however, prostatitis hypertrophy is chronic and is age related. He stated that the Veteran has age related prostatic hypertrophy. The Board considered the Veteran's statements and buddy statements regarding his urinary frequency due to benign prostatic hypertrophy. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id.; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). Whether the Veteran's currently diagnosed urinary frequency due to benign prostatic hypertrophy is related to his active duty service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran's urinary frequency due to benign prostatic hypertrophy is related to his active duty service is not within the realm of knowledge of a non-expert given the above facts. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that the Veteran's statements and contentions in this regard are not probative of whether the Veteran's for urinary frequency due to benign prostatic hypertrophy is related to his active duty service. Thus, the Veteran's statements are afforded less probative value with respect to the medical question of whether the Veteran's for urinary frequency due to benign prostatic hypertrophy is related to his active duty service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this instance, the Board finds that the medical evidence is more probative than the Veteran's lay statements or buddy statements with regard to the issue of entitlement to service connection for urinary frequency due to benign prostatic hypertrophy. Because the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, taking into consideration all of the foregoing, the Board finds that the Veteran's current urinary frequency due to benign prostatic hypertrophy has not been shown to be etiologically related to an event, disease, or injury in service. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Accordingly, given the record before it, the Board finds that the evidence against the claim for urinary frequency due to benign prostatic hypertrophy is more probative than the evidence in favor of the claim. Therefore, the Veteran's claim for service connection for urinary frequency due to benign prostatic hypertrophy must be denied and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). After review of all of the evidence of record, lay, and medical, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for urinary frequency due to benign prostatic hypertrophy. Although there is no doubt from review of the record that the Veteran rendered honorable and faithful service to our nation, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). ORDER Service connection for urinary frequency due to benign prostatic hypertrophy is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs