Citation Nr: 21008081 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-44 106 DATE: February 11, 2021 ORDER Service connection for a urinary disability, to include a prostate disability, is denied. REMANDED The issue of service connection for migraine disability is remanded. The issue of service connection for left elbow disability is remanded. FINDING OF FACT The Veteran’s urinary disability, to include a prostate disability, did not have its onset during service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a urinary disability, to include a prostate disability, have not been met. 38 U.S.C. §§ 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty served in the Army from June 1977 to June 1980. The matters come before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision. The Veteran testified before the Board at a hearing in July 2018. A transcript of the hearing has been associated with the claims file. In a May 2019 decision, the Board remanded these matters to obtain VA examinations and obtain VA treatment records. These appeals have since been returned to the Board for review. The requested VA treatment records were associated with the claims file in January 2020. For the reasons indicated in the discussion below, the VA examination conducted pursuant to the Board’s remand instructions regarding the claim of service connection for a urinary disability, to include a prostate disability, was adequate and the agency of original jurisdiction (AOJ) therefore complied with the Board’s remand instructions; however, the Board finds that further development is required regarding the claims of service connection for a left elbow disability and a migraine disability. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show the existence of (1) a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). The Board has reviewed the evidence of record and finds that service connection is not warranted for the Veteran’s urinary disability, to include a prostate disability. First, during the July 2018 hearing before the Board, the Veteran stated that he experienced urinary symptoms during service. Further, the Veteran stated that after service he later sought VA treatment for urinary and prostate symptoms and was diagnosed as having a prostate disability and a bladder disability. Lastly, the Veteran stated that his current symptoms include frequent urination during the day and night. The Board finds that the Veteran’s statements demonstrate that he experienced urinary symptoms that resolved during service and after a lapse in time later sought VA treatment for urinary symptoms. The Board concludes that these statements do not indicate that the Veteran’s urinary symptoms have continued since separation from service, and therefore this evidence does not support a finding of service connection. Next, the Veteran’s service treatment records (STRs) demonstrate treatment for urinary symptoms during service. During the Veteran’s March 1970 entrance examination there are no indications of a urinary or prostate disability. In April 1978 STRs, the Veteran complained of penile discharge. The STRs indicate that there was no evidence of a sexually transmitted disease. In September 1978 STRs, the Veteran complained of penile discharge and burning during urination. The STRs indicate that there was no evidence of a sexually transmitted disease and the Veteran was advised to force fluids. In March 1979 STRs, the Veteran complained of burning and itching during urination. During the March 1980 separation examination, there are no indications of continuing urinary symptoms or prostate disability. In July 2004, 24 years after discharge from service, the first evidence of urinary and prostate symptoms are noted in the Veteran’s VA treatment records. The Board finds that the significant lapse in time between the Veteran’s discharge and post-service medical treatment weighs against the Veteran’s claim of entitlement to service connection. Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000). In July 2004 VA treatment records, the Veteran stated that he did not have any current urinary issues. The records note the Veteran as having benign prostatic hyperplasia (BPH), which was indicated to be asymptomatic. In June 2006 records, CT scan results indicate unremarkable findings for the prostate and bladder. The July 2007 records indicate no complaints related to BPH and indicate complaints of microhematuria with a normal prostate-specific antigen (PSA). In March 2008 records, the records indicate possible microhematuria with complaints of occasional visible blood in urine. A urinalysis and cystoscopy were performed, which indicated unremarkable findings. In May 2008 records, CT scan results indicate an enlarged prostate. The May 2014 VA treatment records indicate difficulty urinating, and the records to the present continue to demonstrate urinary difficulties. The Board finds that the Veteran’s VA treatment records demonstrate that the Veteran presently suffers from a prostate disability with urinary symptoms; however, the Veteran’s treating physicians do not provide an opinion regarding the etiology of the Veteran’s a prostate disability with urinary symptoms, and the physicians do not provide an opinion stating that the Veteran’s current prostate disability with urinary symptoms is caused by or related to the Veteran’s in-service urinary symptoms. Therefore, the Board finds that the VA treatment records do not have significant probative value as this evidence does not demonstrate a nexus relationship and it does not demonstrate continuity of symptoms based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). In February 2020, the Veteran underwent an in-person VA examination with claims file review regarding his prostate and urinary disability. The Veteran reported a history of microhematuria and an enlarged prostate. The Veteran also reported present urinary difficulties including hesitation, a weak and slow stream, and post-void dribbling. The examiner noted that the Veteran was diagnosed with BPH in 2004 VA treatment records and that he had a history of resolved urethritis during service. The examiner opined that it is less likely than not that that the Veteran’s present urinary or prostate disability was incurred in or caused by service. In the rationale, the examiner stated that the Veteran’s BPH is age related hyperplasia of prostatic stromal and glandular epithelial cells causing generalized enlargement of the prostate, which often leads to obstructive urinary symptoms. The examiner also stated that current medical literature has not found any association between this disability and remote incidences of infectious urethritis. Further, the examiner stated that the Veteran’s in-service urethritis was adequately treated during service and resolved without evidence of residuals or recurrence since that time. Additionally, the examiner stated that the evidence does not demonstrate that the Veteran has experienced persistent urethritis as the VA treatment records document that the March 2008 cystoscopy and urinalysis indicated unremarkable findings and there were no documented symptoms or evaluations for urethritis or sexually transmitted diseases. The Board finds the conclusions of the February 2020 VA examination to be highly probative in reaching its conclusion that the Veteran’s urinary disability, to include a prostate disability, is not related to service. The examiner determined that the Veteran has a present prostate disability with urinary symptoms and that evidence of urethritis was only documented during service. Specifically, the examiner found that the Veteran had isolated incidences of urethritis that resolved during service with no residuals and that the Veteran does not have any symptoms of current or persistent urethritis. The examiner concluded that there was no nexus relationship between the Veteran’s in-service urethritis and his present prostate disability with urinary symptoms. Further, the examiner determined that the Veteran's BPH, which causes urinary difficulties, is a condition that is related to age and is not related to urethritis. Thus, the Board finds that the evidence of record does not support a finding of continuity of symptoms or a nexus element between the Veteran’s in-service complaints and a present disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a urinary disability, to include a prostate disability, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND Migraine Disability and Left Elbow Disability The Board finds that further development is required regarding the Veteran’s claims of service connection for a migraine disability and a left elbow disability. Following the May 2019 Board remand, the Veteran was afforded VA examinations in February 2020 regarding his migraine disability and his left elbow disability. The remand directives for these examinations specifically instructed that in providing an opinion for each of these disabilities, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. A review of the opinions provided by the February 2020 VA examiner indicate that the examiner provided a comprehensive summary of the medical evidence of record; however, the record also contains multiple lay statements that the VA examiner did not address, which were submitted by the Veteran and describe the onset of these disabilities during service as well as continuing symptoms since service to the present. Regarding, the Veteran’s claim of service connection for a migraine disability, the VA examiner’s opinion stated that the medical evidence of record demonstrates that the onset of the disability was likely after the 1990s. Further, the examiner determined that the Veteran’s headaches are likely associated with untreated sleep apnea, which was diagnosed in 2010. The examiner therefore determined that the Veteran’s headaches are associated with sleep apnea and less likely than not relate to service. The Board finds that this analysis does not properly address the Veteran’s lay statements regarding continuing symptoms as instructed by the May 2019 remand directives. Regarding, the Veteran’s claim of service connection for a left elbow disability, the VA examiner’s opinion stated that the medical evidence of record demonstrates that the earliest documentation of symptoms related to a left elbow disability is in 2006, which was related to an acute injury that resolved. The examiner noted that during service the Veteran had dermatologic complaints of a tender and dark spot on his left elbow after a superficial injury. The examiner determined that the in-service complaints related to the Veteran’s left elbow were dermatologic only and were due to a drug reaction following oral surgery. The examiner concluded that the Veteran’s present left elbow pain is due to degenerative changes and that there are no pathophysiologic associations between a dermatologic drug reaction and degenerative joint disease. The Board again finds that this analysis does not properly address the Veteran’s lay statements regarding continuing symptoms as instructed by the May 2019 remand directives. Accordingly, the Board finds that remand is necessary to obtain adequate VA examinations opinions that properly address the Veteran’s lay statements regarding continuing symptoms as instructed by the May 2019 remand directives. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of the Veteran's left elbow disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left elbow disability had its onset during service or is otherwise related to service, including? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. 2. Obtain an addendum opinion regarding the nature and etiology of the Veteran's migraine disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s migraine disability had its onset during service or is otherwise related to service? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the (Continued on next page) limits of current medical knowledge in providing an answer to that particular question(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.