Citation Nr: 21004964 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 06-03 503 DATE: January 28, 2021 ORDER Entitlement to service connection for a prostate disorder is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected osteoarthritis, left knee, status-post medial meniscectomy, prior to February 14, 2011, and in excess of 20 percent from February 14, 2011, to March 24, 2019, is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected total left knee arthroplasty (previously rated as osteoarthritis, left knee, status-post medial meniscectomy) from May 1, 2020, forward, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s prostate disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a prostate disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1983 to January 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in July 2004 and September 2008. In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The Board previously remanded this matter in February 2018, February 2020, and May 2020 for further development. 1. Entitlement to service connection for a prostate disorder is denied. The Veteran seeks service connection for his current prostate disorder. In particular, the Veteran maintains that his current prostate disorder began during his active service. For the reasons discussed below, the Board finds that service connection is not warranted. Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in active service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 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). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Out the outset, the first element for direct service connection, namely a current disability, has been met. See 38 C.F.R. § 3.303(a). The October 2019 Male Reproductive Organ Conditions Disability Benefits Questionnaire indicates that the Veteran has diagnoses of chronic prostatitis and benign prostatic hyperplasia. Additionally, a February 2011 VA treatment record states that the Veteran was treated for prostatitis in 2007. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s chronic prostatitis began during his active service, that is, whether chronic prostatitis was directly “incurred in” service. The Veteran’s service treatment records demonstrate several urinalysis findings obtained during his active service. In particular, an October 30, 1983, urinalysis showed trace protein, mucus, and a few bacteria present and that his white blood cell count was 1-3, RBC was 0-2, and epithelial cells were 1-3. The Veteran’s in-service urinalysis dated May 16, 1984, showed that mucus was present, that his white blood cell count was 2-3, and that epithelial cells were 4-5. The Veteran’s urinalysis dated October 18, 1984, showed that mucus was present, and his white blood cell count was occult. The Veteran’s in-service urinalysis dated in February 1985, showed that mucus was present and occasional white blood cells. The Veteran’s service treatment records do not contain a diagnosis of chronic prostatitis. The March 1991 Report of Medical Examination indicates that the Veteran’s genitourinary-urogenital system is normal. The March 1991 Report of Medical History provides that the Veteran does not report urinary system symptoms. The Veteran’s claims folder contains a July 2020 medical opinion that concludes that it is less likely than not that the Veteran’s chronic prostatitis had its nexus or origins in service. In support, the medical opinion states that there is no evidence of prostatitis while the Veteran was in service or proximate to his service. The Veteran’s service treatment records are silent for symptoms consistent with chronic prostatitis. In particular, the Veteran’s urinalysis findings referenced above show small amounts of white blood cells, mucous, etc. However, the 4+ white blood cell count referenced by S.G., a medical technician that served with the Veteran, is not contained in the Veteran’s service treatment records and is therefore discounted. It is unlikely that a 4+ white blood cell count would not be evaluated as frankly abnormal. None of the Veteran’s urines are noted to be clean-catch, and the amount of changes found on the urinalyses are not indicative of prostatitis, or necessarily that of any inflammatory or infectious process. Additionally, none of the Veteran’s urinalyses obtained during his active service were performed due to urethral or genitourinary complaints as many of these changes could represent hygiene status. The July 2020 medical opinion further states that there are no symptoms documented consistent with chronic prostatitis during the Veteran’s active service. The first reports of prostatitis appear to be as early as 2006 or 2007, but urology notes do not confirm the diagnosis until 2011. If 2006 is accepted as the onset, this represents an approximately 20-year gap from the Veteran’s active service to diagnosis or intervention, which is unlikely. It is also unlikely the Veteran would have gone two additional years in service from his stated “diagnosis” of prostatitis in 1985 to his separation from active service in 1987, without mention. The March 2020 written statement from S.G notes the Veteran was diagnosed with prostatitis at the end of his tour, but this is not supported by the documentation. The Board finds the determination of July 2020 examiner, concerning the onset of the Veteran’s chronic prostatitis to be especially probative. The finding is underpinned by sufficient rationale, and considers the Veteran’s medical treatment during his active service, post-service treatment, and lay statements regarding his symptomatology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). The Board notes that the Veteran’s claims folder contains a March 2011 VA medical opinion that provides his chronic prostatitis “may be” service connected in so far as he was initially diagnosed and treated over the course of his active duty. The Board finds that the medical opinion is inadequate because it is speculative. The Court has held that medical opinions, which are speculative, general or inconclusive in nature, cannot support a claim. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). The Veteran stated that he was diagnosed with prostatitis in 1985, during his active service. He provided a Physician Assistant diagnosed him with chronic prostatitis while at Ehrling Bergquist Regional Hospital during his active service at Offutt Air Force Base. See May 2008 Written Statement. He advised of numerous attacks over the past decade that have led to decreased sperm levels. Id. The Veteran further stated that during his active service, he was experienced urethral discharge and associated urinary frequency. He also stated that he sustained recurrent flare-ups since that time and treated his flare-ups with antibiotics. The Veteran’s claims folder also contains buddy statements from S.G., a medical technician that served with him at Ehrling Bergquist Regional Hospital. See August 2020 Written Statement; March 2020 Written Statement; May 2009 Written Statement. The statements indicate that she remembers the Veteran being treated for re-occurring urinary tract infections. Both urine and microbiology cultures were required. The clinic Physician Assistant at the time was a Lieutenant K. who routinely ordered the aforementioned tests. To the best of her recollection, all of the microbiology urine specimens were negative for sexually transmitted diseases and positive for white cells and bacteria, but not diplocci positive or negative were observed. She advised that all of the Veteran’s gram strains that she read were 4+ for white blood cells and negative for diplococci. On several occasions, the Veteran was prescribed sulfa drugs and he had an adverse reaction to sulfa with headaches, nausea, and lightheadedness. The Veteran was diagnosed with prostatitis and placed on different antibiotics towards the end of his tour. The evidence demonstrates that during the Veteran’s active service, he was a medical laboratory specialist. The October 2009 hearing transcript indicates that he performed gram strains during his active service. The May 2009 written statement from S.G. provides that she worked in the Hematology/Histopathology laboratory with the Veteran. Thus, the evidence shows that while the Veteran and S.G. worked in the medical field, their primary capacity did not involve employment that required medical expertise regarding the diagnosis and treatment of individuals. Thus, their opinions are afforded less probative weight than the opinion of the July 2020 VA doctor. Lay testimony is competent as to matters capable of lay observation or within a person’s first-hand experience and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The Board must determine on a case by case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. See Davidson, 581 F.3d at 1316; Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). The Board finds that the Veteran is not competent to determine whether his chronic prostatitis led to decreased sperm levels. Such determination is based on clinical findings and knowledge of medical principles that would eliminate various possible etiologies for reduced sperm levels; therefore, it is beyond the realm of competence for a lay person. See Jandreau, 492 F.3d at 1376-77. There is no evidence contained in the Veteran’s claims folder that he has the specialized knowledge, training, or medical expertise required to make such a determination. Whether the Veteran had a diagnosis of prostatitis during his active service is reporting a contemporaneous medical diagnosis. Therefore, the Veteran and S.G. are competent to make such statements. In support, the United States Court of Appeals for the Federal Circuit outlined 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, 581 F.3d at 1316; Jandreau, 492 F.3d 1372. However, the Board does not find the statements from the Veteran and S.G. that he was diagnosed with chronic prostatitis during his active service to be credible as these statements are not consistent with more probative evidence contained in his claims folder. In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The July 2020 VA examiner advised that the Veteran’s service treatment records are silent for symptoms consistent with chronic prostatitis and it is unlikely that he would have gone two years in service from his stated “diagnosis” of prostatitis in 1985 to his separation from active service in 1987, without mention. As noted above, the March 1991 Report of Medical Examination indicates that the Veteran’s genitourinary-urogenital system is normal and the March 1991 Report of Medical History provides that he does not report urinary system symptoms. Further, the Veteran’s service treatment records do not contain complaints, treatment, or diagnoses relating to his prostate. The contemporaneous service treatment records are more reliable and have more probative value than the Veteran’s and S.G.’s more recent statements submitted in support of this claim for service connection. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); see also White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). Therefore, these statements lack probative value. In sum, the Board finds that a preponderance of the evidence of record demonstrates that the Veteran’s chronic prostatitis did not have its onset during his active service and is not related to any incident of service. As such, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim for service connection must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App.at 55-57. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected osteoarthritis, left knee, status-post medial meniscectomy, prior to February 14, 2011, and in excess of 20 percent from February 14, 2011, to March 24, 2019, is remanded. 2. Entitlement to a disability rating in excess of 30 percent for service-connected total left knee arthroplasty from May 1, 2020, forward, is remanded. Pursuant to the Board’s May 2020 remand, the Veteran was afforded a Knee and Lower Leg Conditions Disability Benefits Questionnaire in August 2020. The Board finds that the August 2020 examination is inadequate as it did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. The August 2020 examination report states that the Veteran reported flare-ups as fatigue after walking or standing and described his leg as “lagging behind” that causes him to miss stairs and trip. His flare-ups occur several times per week after he has completed work for the day, he rates the severity as a 7 out of 10, and they are alleviated by rest and sitting. In terms of functional impairment, the Veteran had to switch from patrol to a desk job as a police officer due to his knee. He cannot run or walk for long distances and he trips because of his knee. In terms of range of motion testing, the August 2020 examination report states that the Veteran had an initial range of motion of extension to 0 degrees and flexion to 100 degrees. Pain, weakness, and fatigue significantly limit the Veteran’s functional ability with repeated use over time. The examiner described this functional loss in terms of range of motion on repeated use over time as extension to 0 degrees and flexion to 100 degrees. The examination was not conducted during a flare-up. Pain, weakness, and fatigue significantly limit the Veteran’s functional ability with flare-ups according to the examination report. The examiner described his functional loss during a flare-up in terms of range of motion as extension to 0 degrees and flexion to 100 degrees. Thus, the examiner provided the same range of motion measurements that were recorded on initial range of motion testing as described with repeated use over time and with flare-ups. No explanation was provided for the same measurements. It is unclear to the Board how the examiner could find that the Veteran had the same range of motion with repeated use over time or during flare-ups or as when his knee was not in a flare, when the examiner had indicated that there was additional functional loss with repeated use over time or flare-ups. Accordingly, a new examination is warranted that addresses these issues. Should the new VA examination be conducted while the Veteran is not experiencing a flare-up of his left knee, the estimation of additional loss of range of motion during a flare-up must be made after obtaining information concerning the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2020 to the present. 2. After the above development is completed, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected connected total left knee arthroplasty. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected connected total left knee arthroplasty alone and discuss the effect of it on any occupational functioning and activities of daily living. (d.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.