Citation Nr: 21068000 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 15-36 315 DATE: November 8, 2021 ORDER Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD), is granted. Entitlement to service connection for a genitourinary disability, other than a prostate disability, erectile dysfunction (ED), retrograde ejaculation, or a voiding dysfunction, and to include as secondary to a transurethral resection of the prostate (TURP), is denied. REMANDED Entitlement to service connection for a prostate disability, other than a voiding dysfunction and ED, to include as secondary to a TURP, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during acting service. 2. The Veteran's COPD is reasonably shown to be related to or caused by his active service, to include as due to asbestos exposure. 3. The Veteran's genitourinary disability was not causally or etiologically related to active service and was not caused or aggravated by his service-connected residuals of a TURP. CONCLUSIONS OF LAW 1. The criteria have been met for service connection for COPD. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria have not been met for service connection for a genitourinary disability. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to July 1974, March 1975 to September 1988, and from January 1989 to January 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In August 2013, the Veteran submitted a Notice of Disagreement with this rating decision. This case was previously before the Board in December 2018 and October 2020 when it was remanded for additional development. Concerning the issue of service connection for a prostate disability, unfortunately, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998). Concerning the issues of service connection for COPD and a genitourinary disability, the Board finds that there has been substantial compliance with its prior remand directives. Id. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1101, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced-connected if they manifest to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a respiratory condition, to include COPD, is granted. The Veteran contends that his respiratory condition, to include COPD, is related to active service, to include as due to asbestos exposure. In a November 2020 VA opinion, the examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no evidence of a chronic respiratory condition while the Veteran was in service. The examiner noted that the Veteran was diagnosed with bronchitis in September 1989. According to the examiner, this condition appeared to have been acute, self-limited, and resolved with appropriate therapy. The x-ray performed at the time showed a "possible" right lateral granuloma of, or near, the hemidiaphragm. This finding was not noted on additional studies, including 2013 and 2019 x-rays and PET/CT in 2013. The VA examiner determined that there was no current granuloma. Even if the presence of a granuloma was conceded, it had no relationship to the Veteran's COPD, which was almost certainly due to a three-pack per day smoking history from age 18. The examiner wrote that the issue of the granuloma was moot, as it was never confirmed, and it was only "possible" per the radiologist in 1989. Therefore, it was less likely than not that the Veteran's COPD had its nexus in service or was related to the "possible" granuloma in 1989. In a subsequent June 2021 VA examination report, the Veteran was diagnosed with COPD and asbestosis. The Veteran noted that during service, he had at least two occasions of diagnosed bronchitis. The Veteran reported that he was exposed to asbestos in 1983 while serving in the military and he has been diagnosed with asbestosis by a lung specialist. The VA examiner opined that it was at least as likely as not that the Veteran's COPD was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that Veteran had no issues related to his claimed respiratory condition prior to military service. His current diagnosis of COPD/asbestosis was related to his exposure to asbestos while serving in the military. The Veteran only had one service treatment record showing upper respiratory infections (URI), breathing problems, coughing complaints prior to that date, and multiple complaints and symptoms afterwards, starting in or around 1988. In December 2020, the Veteran was diagnosed with asbestosis by a lung specialist, and PFTs were abnormal. The physician specifically stated that the Veteran had a "very severe" airflow limitation and that the findings suggested asbestosis versus congestive heart failure. There was evidence of chronicity and a nexus has been established. Analysis The Board finds that the June 2021 VA opinion, finding a nexus between the Veteran's current COPD and active service, to outweigh the November 2020 VA opinion. The November 2020 opinion did not address the Veteran's exposure to asbestosis while the June 2021 opinion did. The Board finds that the June 2021 VA opinion, finding that the Veteran's COPD was related to his asbestos exposure during active service, to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the above analysis, the Board determines that at a minimum, the evidence is in equipoise. Because of this, it is at least as likely as not that the Veteran's current COPD is related to his asbestos exposure during active service. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for COPD is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. 2. Entitlement to service connection for a genitourinary disability, to include as secondary to TURP, is denied. In a March 2020 VA examination report, the Veteran was diagnosed with urinary incontinence and acute cystitis. He noted that shortly after leaving service in January 1995, he started having urinary tract infections (UTIs). The Veteran reported that he had repeated UTIs and was told he had an enlarged prostate. The VA examiner opined that it was less likely than not that the Veteran's genitourinary disability was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that during service, the Veteran's prostatitis, UTI, and epididymitis were acute only. According to his medical records, after he left active service, the Veteran did not complain of urinary symptoms again until 2010, after he had been diagnosed with uncontrolled diabetes. The VA examiner noted that the Veteran has had 3 episodes of UTIs, and in 2019 an undertreated UTI led to acute pyelonephritis. The Veteran also reported voiding dysfunction, which the VA examiner reported can be the result of type II diabetes, as could his UTIs, and the possible acute cystitis diagnosis via UA in 2020, as well as his daily use of furosemide, a strong diuretic. There was no evidence of chronicity of care and the Veteran's symptoms were subjective only. The VA examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. Additionally, the examiner opined that the Veteran's claimed condition was not aggravated beyond its natural progression by his service-connected condition. The rationale was that the examiner was unable to confirm a current chronic diagnosis based on the Veteran's medical records or the VA examination. Because of this, no nexus or plausible secondary relationship was possible. Finally, the VA examiner noted that a review of the conflicting medical evidence had been done and provided the opinion that there was no chronic diagnosis for urinary incontinence, urinary tract infection, overactive bladder, or any other urinary issue. Additionally, there was no evidence in the medical records of any urinary condition other than polyuria and burning on urination in 2010, with a concurrent diagnosis of uncontrolled diabetes, a urinary tract infection leading to pyelonephritis in 2019, and possible cystitis based on a standard UA in 2020. The Veteran made no complaints of any urinary symptoms, otherwise, in any of the available medical records and there were no diagnoses listed or treatments provided. The examiner noted that the Veteran may have had cystitis in 2020 based on the urinalysis, however this was not a clean "catch" so the sample may not have been valid for diagnostic purposes. The Veteran was treated for ED since 2005 or 2006 per his medical records. Furthermore, the Veteran had a history of uncontrolled diabetes, which can cause many of the symptoms he was experiencing. The examiner noted that the Veteran's symptoms were subjective only. In a June 2021 VA examination report, the Veteran was diagnosed with a history of UTIs, voiding dysfunction, and urinary incontinence. The Veteran noted that these problems began in 1995 during active service. The VA examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that during service, the Veteran's genitourinary condition was acute only. There was no evidence of chronicity and his current symptoms were subjective only. According to the VA examiner, a thorough review of the medical records failed to find evidence of a chronic condition. Because of this, there was no nexus. The examiner also opined that it was less likely than not that the claimed condition was proximately due to or the result of the Veteran's service connection condition. Additionally, the examiner opined that it was less likely than not that the Veteran's condition had been aggravated beyond its natural progression. The rationale was that the VA examiner was unable to confirm a current chronic diagnosis. Because of this, a nexus or plausible secondary relationship was not established. Analysis The Board has not overlooked the Veteran's statements about his claimed genitourinary condition. While the Veteran is competent to observe his various genitourinary symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his claimed condition, whether it was related to active service, or was caused or aggravated by his already service-connected residuals of a TURP. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that in an October 2020 decision, the Veteran was granted service connection for residuals of a TURP, to include a voiding dysfunction, ED, and retrograde ejaculation. The Board finds that the March 2020 and June 2021 VA opinions, determining that the Veteran did not have a current chronic genitourinary condition, and finding no connection between his claimed condition to active service, or to his service-connected residuals of a TURP, to be the most probative evidence of record, as the examiners reviewed the claims file and provided detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the objective medical findings and opinions provided by the March 2020 and June 2021 VA examiners have been accorded greater probative weight in determining that service connection is not warranted. There is no competent medical evidence showing a diagnosis of a genitourinary condition, other than a prostate disability, ED, retrograde ejaculation, or a voiding dysfunction, during the appeal period. The most fundamental requirement for any claim for service connection, on either a direct or secondary basis, is that the Veteran must first establish he or she has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the above analysis, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and service connection for a genitourinary condition must be denied. REASONS FOR REMAND Entitlement to service connection for a prostate disability, to include as secondary to a TURP, is remanded. In the October 2020 decision, the Board ordered the RO to obtain an addendum opinion as to whether the Veteran had a prostate disability that was proximately due to his TURP. The Board notes that in the October 2020 decision, service connection for residuals of a TURP was granted. Additionally, in the Findings of Fact section of that decision, the Board determined that "the Veteran underwent a TURP to treat service-connected genitourinary symptoms" of voiding dysfunction, ED, and retrograde ejaculations. In a March 2020 VA examination report, the Veteran was diagnosed with benign prostatic hypertrophy (BPH). The Veteran noted that the condition began in January1995. He reported that he had difficulty urinating, pain on urination and a fever. The Veteran stated that he had a TURP. In a June 2021 addendum opinion, the VA examiner opined that it was less likely than not that the Veteran's condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran had no chronic diagnosis of a prostate disability. Additionally, the Veteran reported that he had TURP in 1995 or 1996 that caused continual voiding dysfunction and ED. However, according to the VA examiner, there was no report of a diagnosis or procedure in any of the available medical records. A review of the Veteran's personal health history lists "TURP" in 1995, however, there was no diagnosis listed that warranted a TURP procedure. The VA examiner reported that the Veteran had a history of prostatitis and UTIs or epidemiditis, while in service. The VA examiner also opined that it was less likely than not that the Veteran's prostate condition was proximately due to or the result of his service-connected condition and had not been aggravated beyond its natural progression. The rationale was that the VA examiner was unable to confirm a current chronic diagnosis. The Board finds that the June 2021 opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); See also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In the June 2021 opinion, the VA examiner determined that the Veteran did not have a chronic diagnosis of a prostate disability. However, in the March 2020 VA examination report, the Veteran was diagnosed with BPH. Additionally, in the June 2021 opinion, the VA examiner determined that the Veteran had never had a TURP. As noted above, in the October 2020 decision, the Board granted the Veteran service connection for residuals of a TURP and made an explicit Finding of Fact that he had a TURP. Because of this, a new VA opinion is necessary to determine if the Veteran's prostate condition was proximately caused by or aggravated by his service-connected residuals of a TURP. The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning this claim. 2. Arrange for the Veteran's file to be forwarded to a VA examiner for a clarifying addendum opinion regarding the likely cause of the Veteran's prostate condition, to include BPH, as due to his service-connected residuals of a TURP. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed prostate condition was proximately due to or aggravated by his service-connected residuals of a TURP. The Board notes that for the purpose of this opinion, the VA examiner is to assume that the Veteran had a TURP, as this condition was granted service connection in October 2020. 3. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.