Citation Nr: 21062077 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-28 849 DATE: October 6, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for lumbar spine degenerative disc disease (DDD) is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a prostate condition is reopened. Entitlement to service connection for lumbar spine DDD is granted. Entitlement to service connection for benign prostate hyperplasia (BPH) with prostatitis is granted. FINDINGS OF FACT 1. A February 2006 rating decision denied the Veteran's claim for service connection for a lumbar condition. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, the February 2006 rating decision became final. At the time of the February 2006 rating decision, the Agency of Original Jurisdiction (AOJ) found the Veteran did not have a lumbar spine condition. Since then, the Veteran provided a diagnosis of lumbar spine DDD. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 2. A February 2007 rating decision denied the Veteran's claim for service connection for prostatitis. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, the February 2007 rating decision became final. At the time of the February 2007 rating decision, the AOJ found nexus evidence was lacking. Since then, the Veteran provided relevant evidence tying his current prostate condition to service. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. The Veteran's lumbar spine DDD began in service and has continued to the present. 4. The Veteran's BPH with prostatitis began in service and has continued to the present. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine condition. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for prostatitis. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 3. The criteria for service connection for lumbar spine DDD are met. 38 U.S.C. §§ 1110, 1131, 5107 (2019); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for BPH with prostatitis are met. 38 U.S.C. §§ 1110, 1131, 5107 (2019); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to May 2005. He appeals a February 2012 rating decision by the Department of Veterans Affairs (VA) AOJ denying entitlement to reopen a claim for service connection for a low back condition and prostatitis. A Board of Veterans' Appeals (Board) hearing was held in July 2021. A transcript is of record. A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lumbar Spine DDD Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (2013). Arthritis is such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In service, the Veteran was diagnosed with lumbar degenerative disc disease by x-ray imaging. See July 2004 and August 2004 service treatment records (STRs). At his December 2004 retirement examination, the Veteran noted he was currently taking naproxen for his low back pain and the subsequent February 2005 retirement physical profile noted the Veteran had "low back pain L3-4 DJD." Although a September 2005 VA examiner concluded recent x-ray imaging showed the Veteran had a "normal spine," subsequent MRI and x-ray imaging results confirm the Veteran has lumbar spine DDD. See November 2008 and October 2010 Dr. F.C. treatment records. The Veteran competently testified that since his service, he has primarily self-medicated his back pain and noted occasions in service when he "could not get up in the morning" due to back pain. See July 2021 Board Hearing Tr. at 8-9. A July 2004 STR confirms the Veteran self-treated "with heating pads and over the counter medication" for his back spasms and chronic low back pain. The Veteran also stated his symptoms of low back stiffness, pain, soreness, and spasms have continued since service, and he denied any back injury after service. Id. at 11, 14. The Board finds the Veteran's testimony credible as medical records do not mention any subsequent injury after service and the Veteran told his treating physicians his back pain started in service. See, e.g., November 2008 Dr. F.C. treatment records. Additionally, the September 2005 VA examination report confirms the Veteran suffered from low back pain shortly after service. As the Veteran was diagnosed with lumbar spine DDD in service and currently has a diagnosis of lumbar spine DDD, the Board finds the record contains a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Thus, the Board grants service connection for lumbar spine DDD. BPH with Prostatitis Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends he is entitled to service connection for BPH with prostatitis, maintaining that he was diagnosed while on active duty, shortly after discharge with his treating urologist, and also during the appeal period. In service, the Veteran was treated numerous times for BPH and prostatitis. See, e.g., April 1990 and February 1997 STRs. For example, September 1989 STRs note a diagnosis of chronic prostatitis and November 1989 STRs note the Veteran was treated with Cipro. May 1990 STRs note the Veteran's prostate condition required a "yearly prostate exam." On the Veteran's December 2003 retirement examination, he noted symptoms of "frequent/painful urination" citing a diagnosis of "urinary problems/swollen prostate beginning in 1989." On the Veteran's February 2005 physical profile for retirement, the physician found the Veteran had "BPH with history of prostatitis." As such, the record clearly indicates an in-service diagnosis of BPH and prostatitis. Initially, the Veteran filed a claim for service connection for prostatitis in June 2005, less than one month after his separation from service. In September 2005, a VA examiner noted the Veteran had an "enlarged smooth prostate," but ultimately noted no current evidence of prostatitis as the Veteran was not on any medication, and noted no urinary incontinence, urgency, and hesitancy. Subsequent to the September 2005 VA examiner noting no prostate diagnosis, the Veteran submitted letters from his urologist. See March 2006 Dr. M.F. letter. Dr. M.F. noted he had treated the Veteran for a prostate disorder for the past two months and prescribed Flomax as treatment. Id. Dr. M.F. stated he reviewed the Veteran's treatment records and found it at least as likely as not his current prostate disorder was related to his in-service prostate treatment. Id. Indeed, Dr. M.F. treatment records reflect the Veteran was examined and diagnosed with bladder outlet obstruction and BPH in January 2006 and subsequently provided prostate medication. The Veteran's prostate condition has been continuously identified as chronic prostatitis and BPH. See November 2008 and January 2011 Dr. M.F. treatment records. The Veteran was also treated by this urologist and prescribed medication for this prostate condition during the appeal period. See January 2011 VA treatment records (Flomax); February 2016 VA treatment records (Tamsulosin daily for prostate). As such, the Board concludes the Veteran had a current diagnosis of BPH with prostatitis during the pendency of the claim, which all of the medical evidence of record relates to his in-service diagnosis of BPH and prostatitis. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). This is supported by the probative treatment records in-service, shortly after service, and during the appeal period in conjunction with Dr. M.F.'s positive medical opinions. Although the September 2005 VA examiner did not find a nexus between the Veteran's prostate condition and his service, this finding was based solely on the examiner's determination that there was no current diagnosis of prostatitis as the Veteran had not yet provided his urology treatment records. Thus, the Veteran's credible report of continuing prostate symptomatology during and since his active service reflects a link between his current disability and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). As there is no evidence to the contrary, the Board finds that service connection for BPH with prostatitis is warranted and the claim is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.