Citation Nr: 21008802 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 11-05 426A DATE: February 18, 2021 ORDER Entitlement to service connection for a prostate condition is denied. REMANDED Entitlement to service connection for a psychiatric condition, to include as secondary to service-connected disability is remanded. FINDING OF FACT The Veteran’s current prostate disorder did not have its onset in service or within a year of separation therefrom, and bears no etiological relationship to any aspect of active duty service, to include as a sequela of in-service prostatitis. CONCLUSION OF LAW The criteria for entitlement to service connection for a prostate condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to July 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the board in July 2020, at which time they were remanded for development. They have been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The claimant has not 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 a duty to assist argument). 1. Entitlement to service connection for a prostate condition Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record in this case reflects a current diagnosis of benign prostate hypertrophy (BPH). Thus, the current disability requirement has been met. The Veteran avers that the condition is etiologically related to service; specifically, that it constitutes a sequela of in-service prostatitis. Service treatment records confirm that the Veteran experienced a single bout of prostatitis in service in early 1973. The condition appears to have resolved, without evidence of complications or recurrence. Post-service records do not reflect subsequent bouts of prostatitis, nor diagnosis of another prostate condition, including BPH, within a year of separation from active duty service, or for many years thereafter. In order to explore the etiology of the Veteran’s BPH, a VA examination was conducted in November 2018. The VA examiner confirmed the presence of BPH, but furnished an unintelligible opinion as to etiology. Thus, a second VA examination was conducted in August 2020. Pursuant to that examination, the VA examiner indicated that the development of BPH many years after separation bore no etiological relationship to in-service prostatitis, adding that the Veteran denied genitourinary complaints in service following resolution of his acute prostatitis, and that medical literature “does not support a direct etiologic relation between [an] isolated episode of acute prostatitis…and the development of BPH.” The Board notes that this assessment is uncontroverted by other objective evidence in the record, and thus the Board affords it great probative value. It is based on an in-person examination of the Veteran, a thorough review of the medical file, and due consideration afforded the Veteran’s lay account of the history of his prostate conditions. While the Board has considered with sympathy the Veteran’s lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his prostate condition in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran’s reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of BPH is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran’s diagnosed BPH is related to active service, to include prostatitis therein. The probative value of the Veteran’s assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for a prostate condition must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric condition, to include as secondary to service-connected disability is remanded. Although the additional delay is regrettable, the Board finds that a remand is required in order to afford the Veteran an adequate VA examination and medical opinion with respect to the etiology of his acquired psychiatric condition. The Veteran has averred that his currently diagnosed depressive disorder is etiologically related to chronic pain attributable to service-connected disability, including a low back disorder and bilateral lower extremity radiculopathy. The VA examiner with whom the Veteran met in August 2020 indicated only that the Veteran’s psychiatric condition involved a “different pathophysiology and different anatomical system,” from the aforementioned service-connected conditions, and thus there was “no relation one with the other.” A subsequent addendum opinion is equally conclusory, adding only that none of the Veteran’s service-connected conditions aggravated his psychiatric condition. On remand, a new VA examination must be conducted, and an adequate medical opinion as to etiology obtained, to include an opinion as to whether chronic pain attributable to service-connected disability has been a causative or aggravating factor in the development of the Veteran’s depression, with all opinions fully explained. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claims. If any requested records are unavailable, the Veteran should be notified to that effect.   2. Then, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.   It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.   The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. If it is determined that a diagnosed psychiatric condition bears no direct etiological relationship to service, the examiner should state whether it is at least as likely as not that the diagnosed condition has been caused or aggravated beyond its normal course of progression by any service-connected disability or combination of service-connected disabilities, to include as a result of chronic pain caused by service-connected disabilities. All conclusions must be fully explained, with due consideration afforded the Veteran’s lay statements. 3. After the development requested has been completed, review the medical report to ensure that it is in compliance with the directives of this Remand. If the report is deficient in any manner, implement corrective procedures. 4. Thereafter, the RO should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.