Citation Nr: 23007828 Decision Date: 02/07/23 Archive Date: 02/07/23 DOCKET NO. 18-35 843 DATE: February 7, 2023 ORDER Entitlement to an acquired psychiatric disorder, to include anxiety disorder not otherwise specified, has been withdrawn. Entitlement to a compensable evaluation for epididymitis is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to a prostate disorder, is denied. Entitlement to service connection for a bladder disorder, to include as secondary to a prostate disorder, is denied. Entitlement to service connection for a urethra disorder, to include as secondary to a prostate disorder, is denied. REMANDED Entitlement to service connection for right wrist carpal tunnel syndrome is remanded. Entitlement to service connection for a prostate disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for rhinitis is remanded. FINDINGS OF FACT 1. The Veteran, at his July 2022 Board hearing, withdrew the issue of entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder not otherwise specified. 2. The Veteran's epididymitis has not resulted in poor renal function, long-term drug therapy, one to two hospitalizations per year, and does not require intermittent intensive management. 3. The Veteran does not have a diagnosis of erectile dysfunction; the evidence of record persuasively weighs against finding that the Veteran has had a diagnosis of erectile dysfunction at any time during or approximate to the pendency of the claim. 4. The Veteran does not have a diagnosis of a bladder disorder; the evidence of record persuasively weighs against finding that the Veteran has had a diagnosis of a bladder disorder at any time during or approximate to the pendency of the claim. 5. The Veteran does not have a diagnosis of a urethra disorder; the evidence of record persuasively weighs against finding that the Veteran has had a diagnosis of urethra disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder not otherwise specified, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a compensable evaluation for epididymitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7525. 3. The criteria for service connection for erectile dysfunction, to include as due to a prostate disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for bladder disorder, to include as due to a prostate disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a urethra disorder, to include as due to a prostate disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1969 to April 1973. His awards and decorations include a Combat Action Badge. Additionally, the Veteran had active duty for training (ACDUTRA) in the U.S. Navy, with periods of inactive duty for training (INACDTURA) in between and thereafter. This matter comes to the Board of Veterans' Appeals (Board) from an appeal of a September 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was conducted by video conference in July 2022 before the undersigned Veterans Law Judge, at which the Veteran testified; a transcript is of record. At the time of the Board hearing, the Veteran waived RO review of evidence appearing in the file after the last statement of the case. 1. Entitlement to an acquired psychiatric disorder, to include anxiety disorder not otherwise specified At the July 2022 Board hearing the Veteran requested to withdraw the appeal for entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder not otherwise specified. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Board finds that the Veteran's withdrawal of these claims was explicit, unambiguous, and done with a full understanding of the consequences of such action. The undersigned specifically discussed consequences of withdrawal with the Veteran, to include the need to file new claims should the Veteran choose to seek service connection in the future and the fact that any benefits granted as a result of such future claims would likely be effective no earlier than the date of the new (future) claims. See Hearing Transcript, p. 2. Given these circumstances, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. See Hanson v. Brown, 9 Vet. App. 29 (1996) (holding that when a claim is withdrawn, it ceases to exist). 2. Entitlement to a compensable evaluation for epididymitis The Veteran's epididymitis is currently rated as noncompensable pursuant to Diagnostic Code 7525. The Veteran contends that he is entitled to a higher evaluation for the entire period on appeal. Diagnostic Code 7525 is specific to chronic epididymo-orchitis. The regulation instructs to rate the disability as a urinary tract infection, except for tubercular infections, which are to be rated under §4.88b or 4.89. The record does not indicate tubercular infections are present. The criteria for rating a urinary tract infection are in 38 C.F.R. § 4.115a, which provides a 10 percent rating when the disability requires long term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. A maximum 30 percent rating is provided for poor renal function, recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. When poor renal function is associated with the urinary tract infection, the condition is to be rated as renal dysfunction. 38 C.F.R. § 4.115a. During the pendency of the appeal, the criteria for rating dysfunctions of the genitourinary system were amended effective November 14, 2021. See Schedule for Rating Disabilities; The Genitourinary Diseases and Conditions, 86 Fed. Reg. 54081 (Sep. 30, 2021) (to be codified at 38 C.F.R. §§ 4.115A, 4.115B). These amendments did not significantly revise the rating criteria under Diagnostic Code 7525 except to replace "Epididymo-orchitis" with "Prostatitis, urethritis, epididymitis, orchitis (unilateral or bilateral)." It is still rated as urinary tract infection or separately for tubercular infections (as noted above). For urinary tract infections, recurrent symptomatic infection not requiring hospitalization, but requiring suppressive drug therapy for less than 6 months is rated as noncompensable. Recurrent symptomatic infection requiring 1-2 hospitalizations per year or suppressive drug therapy lasting six months or longer is rated as 10 percent disabling. Recurrent symptomatic infection requiring drainage by stent or nephrostomy tube; or requiring greater than 2 hospitalizations per year; or requiring continuous intensive management is rated as 30 percent disabling. When a regulation is changed during an appeal period, the Board will look to apply whichever rating is most favorable to the Veteran. In September 2015, the Veteran was afforded VA examinations in connection with his claim. A Urinary Tract Conditions Disability Benefits Questionnaire revealed that the Veteran did not have a diagnosis of a disorder of the bladder or urethra of the urinary tract. Another VA examination from September 2015 for Male Reproductive Systems revealed diagnoses of benign prostatic hyperplasia and acute epididymitis. There was no voiding dysfunction or erectile dysfunction on examination. Physical examination noted a normal penis. The examiner noted that the Veteran's prostate was not examined as per the Veteran's request. Diagnostic testing from 2006 did not show any findings of current infection or active epididymitis. In April 2021, an additional VA examination for Male Reproductive Systems was performed. At the time of the examination, a diagnosis of acute epididymitis was rendered. There was no voiding dysfunction and no erectile dysfunction reported. There was no chronic history of prostatitis found. The examiner noted that the Veteran's penis was not examined per Veteran's request; Veteran reported normal anatomy with no penile deformity or abnormality. The examiner did not note any long-term drug therapy, hospitalizations, or intermittent intensive management of chronic epididymitis, epididymo-orchitis or prostatitis. The Veteran testified at a July 2022 Board hearing. The Veteran described that during a flare-up of his epididymitis, he must submerse himself in water to relieve swelling. Also, the Veteran described that he has to wear athletic support if he is going to be doing heavy things. He explained that this occurs sometimes once a week to once a month depending on the types of things he is doing, such as working outside. The Veteran testified that he has been using this routine during flare-ups since leaving active service. He also described that in 2019 he had to be seen by a urologist because his disorder became painful. VA treatment records reveal that epididymitis is listed as a past medical problem for the Veteran. In September 2006, the Veteran presented with complaints of swelling in his left scrotal sac. At the time of the encounter, a treatment plan of continued application of warm compresses was recommended. Based on a full review of the evidence of record, the Board finds the VA examination reports are adequate because they fully addressed rating criteria, included file review, and are fully responsive to the question at issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the evidence as discussed above, the Board finds that the evidence of record does not establish any of the symptomatology required for a compensable rating for epididymitis under DC 7525. Specifically, the April 2021 VA examiner did not find that the Veteran had any long-term drug therapy, hospitalizations, or required any intermittent intensive management. Although the Veteran testified as to the symptoms associated with flare-ups of his epididymitis, and as to the process he uses to treat it, swelling of the scrotum is not one of the criteria which is used to evaluate the severity of chronic epididymitis. Moreover, at no point in the record is it shown that the Veteran's epididymitis is more than an acute occurrence, rather than chronic as required by the rating criteria. As DC 7525 specifically considers the Veteran's diagnosed disability, chronic epididymitis, consideration of other DCs and ratings by analogy is not permitted. See Copeland v. McDonald, 27 Vet. App. 333 (2015). The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as swelling of the scrotum. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The statements from the Veteran are competent evidence to report his symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). The Veteran is also credible in his belief that he is entitled to a compensable evaluation for his service-connected epididymitis. However, the more probative evidence of record does not indicate that the assignment of a compensable evaluation is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative opinions rendered by VA medical professionals given their expertise in evaluating genitourinary system disorders. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a compensable evaluation for epididymitis. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. Entitlement to service connection for erectile dysfunction, to include as secondary to a prostate disorder 4. Entitlement to service connection for a bladder disorder, to include as secondary to a prostate disorder 5. Entitlement to service connection for a urethra disorder The Veteran seeks service connection for erectile dysfunction, a bladder disorder, and a urethra disorder. He contends that these disorders are attributable to his active military service. Alternatively, the Veteran contends that his erectile dysfunction, bladder disorder, and urethra disorder are due to a prostate disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Secondary service connection is warranted for any permanent increase in severity (aggravation) of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b) (2017); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Turning to the record, the Veteran's service treatment records (STRs) are silent as to any diagnosis or treatment for erectile dysfunction, a bladder disorder, or a urethra disorder, during active service. A September 2015 VA examination for the Urinary Tract revealed that the Veteran does not have a diagnosis of a condition of the bladder or urethra of the urinary tract. The examiner noted that the Veteran had a history of BPH, which also caused obstruction of the bladder/urinary overflow at that time. However, the examiner further stated that there was no actual bladder condition diagnosed as per the Veteran's reported history or the then currently available medical records. The Veteran had a transurethral needle ablation of the prostate in 2009, and since the procedure the Veteran reported that his urination is fine. The Veteran denied any problems with urination or the need for any current medications or treatment. In September 2015, a VA examination for Male Reproductive Systems revealed diagnoses of benign prostatic hyperplasia and acute epididymitis. There was no voiding dysfunction or erectile dysfunction on examination. Physical examination noted a normal penis. The examiner noted that the Veteran's prostate was not examined as per the Veteran's request. The Veteran denied any erectile dysfunction issues. In April 2021, an additional VA examination for Male Reproductive Systems was performed. At the time of the examination, a diagnosis of acute epididymitis was rendered. There was no voiding dysfunction and no erectile dysfunction reported. There was no chronic history of prostatitis found. The examiner noted that the Veteran's penis was not examined per Veteran's request; Veteran reported normal anatomy with no penile deformity or abnormality. In July 2022, the Veteran testified at a Board hearing. Although erectile dysfunction, a bladder disorder, and a urethra disorder were identified as issues on appeal, the Veteran asserted that erectile dysfunction, bladder disorder, and urethra disorder, were secondary to the claim of a prostate disorder. VA treatment records do not reveal that the Veteran has a history of complaints or treatments for any erectile dysfunction, bladder disorder, or urethra disorder. The Board finds that the September 2015 and April 2021 VA examinations are adequate as the VA examiners specifically examined the Veteran for erectile dysfunction, to include in noting the Veteran's own narrative history that denied any erectile dysfunction issues. Moreover, the examinations were expressly negative for any finding that the Veteran reported any symptoms of a bladder or urethra disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These examinations are valuable and are afforded great weight. Based on the evidence as discussed above, the Board finds that the Veteran does not have any current diagnosis of erectile dysfunction, a bladder disorder, or a urethra disorder, and has not had any such diagnoses at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, to the extent the Veteran contends that he has erectile dysfunction, a bladder disorder, or a urethra disorder, that are related to a prostate disorder, the Board notes that the Veteran is not service-connected for any prostate disorder. Therefore, service connection is equally not warranted on a secondary basis. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, there is no indication that the Veteran has had any symptoms of erectile dysfunction, a bladder disorder, or a urethra disorder, that have had any functional impairment of earning capacity for the Veteran. Moreover, the existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had erectile dysfunction, a bladder disorder, or a urethra disorder, or any symptoms of these disorders at any point during the appeal period. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran and probative value of the evidence of record in its whole. See Washington v. Nicholson, 19 Vet. App. 362 (2005), 38 C.F.R. § 3.159(a)(2) (Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In determining whether documents submitted by a veteran 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). While the Veteran is competent to report a diagnosis of erectile dysfunction, a bladder disorder, and a urethra disorder, the Board finds that the objective medical evidence indicates that the Veteran does not in fact have such diagnoses. The Board assigns the statements asserting a current diagnosis of erectile dysfunction, a bladder disorder, and a urethra disorder, less weight. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the weight of the evidence is persuasively against the Veteran's claims, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to service connection for right wrist carpal tunnel syndrome is remanded. At the July 2022 Board hearing, the Veteran testified that as part of his duties as an Operations Specialist he was required to make consistent repetitive movements with his right wrist. VA treatment records from November 2022 reveal that the Veteran has carpal tunnel syndrome listed as an active medical issue. To date the Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed right wrist carpal tunnel syndrome. VA must provide an examination where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes an event, injury or disease in-service, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159 (c)(4) (2019); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the evidence need only "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). As such, a remand is warranted to obtain a VA examination to determine the nature and etiology of the Veteran's claimed right wrist carpal tunnel syndrome. 2. Entitlement to service connection for a prostate disorder is remanded. The Veteran has claimed that he has a prostate disorder that is attributable to his active military service, and he seeks service connection. The Board observes that the Veteran was afforded VA examinations in September 2015 and in April 2021 respectively for disorders of the male reproductive system. At the time of the September 2015 VA examination, the examiner rendered diagnoses of benign prostatic hyperplasia and acute epididymitis. However, at the time of the April 2021 VA examination, the examiner rendered only one diagnosis of acute epididymitis. The Board finds that another VA examination is necessary to determine if the Veteran has a current diagnosis relative to a prostate disorder, as there are conflicting diagnoses between the September 2015 VA examination and the April 2021 VA examination. 3. Entitlement to service connection for a lumbar spine disorder is remanded. At the July 2022 Board hearing, the Veteran testified that he injured his lumbar spine during active military service as a result of handling heavy ammunition. VA treatment records reveal that the Veteran currently participates in physical therapy for low back pain. To date the Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed lumbar spine disorder. VA must provide an examination where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes an event, injury or disease in-service, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159 (c)(4) (2019); McLendon, 20 Vet. App. at 83-86 (2006). As such, a remand is warranted to determine the nature and etiology of the Veteran's claimed lumbar spine disorder. 4. Entitlement to service connection for sinusitis is remanded. 5. Entitlement to service connection for rhinitis is remanded. At the July 2022 Board hearing, the Veteran testified that prior to his active military service he did not have problems with his sinuses or allergies. He further testified that his episodes of allergies and congestion began during his active service. In his Report of Medical History from the time of his enlistment in February 1969, the Veteran provided negative responses for sinusitis and hay fever. In September 2015, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, a diagnosis of allergic rhinitis as confirmed. In the accompanying VA medical opinion, the examiner rendered a negative etiological opinion based on the Veteran's report that he had experienced seasonal allergies since childhood. Additionally, the examiner did not render any opinion as to the Veteran's claimed sinusitis, to include whether the Veteran has a current diagnosis. The Veteran's service treatment records clearly show that the Veteran denied sinusitis and hay fever at the time of enlistment. Further, the Veteran has since testified that his allergic rhinitis and sinusitis began during his active service. The Board finds the September 2015 VA examination is inadequate for purposes of determining service connection. Specifically, the examiner's rationale is in conflict with the evidence of record, to include the Veteran's recent Board testimony as to whether the Veteran's allergic rhinitis pre-existed the Veteran's service. Moreover, the examiner failed to provide any opinion with respect to the Veteran's claimed sinusitis. Given these deficiencies, a new VA examination is required with respect to the Veteran's service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The matters are REMANDED for the following action: 1. Schedule the Veteran with the appropriate VA examiner(s) to determine the nature and etiology of the Veteran's right wrist carpal tunnel syndrome, prostate disorder, lumbar spine disorder, sinusitis, and rhinitis. The entire electronic claims file must be reviewed, and such review must be documented in the report. The report should include discussion of the Veteran's documented medical history and assertions. All indicated tests should be accomplished and all clinical findings should be reported in detail and any earlier reports should be reconciled, if necessary. (a) The examiner should opine as to whether the Veteran's right wrist carpal tunnel syndrome, prostate disorder, lumbar spine disorder, sinusitis, and rhinitis are related to service. In rendering this opinion, the examiner must consider the Veteran's statements regarding the onset of his condition and continuity of symptomatology. (b) The examiner should opine as to whether the Veteran's rhinitis clearly and unmistakably (i.e., undebatably) existed prior to his enlistment in-service (i) If so, is there clear and unmistakable evidence that the pre-existing rhinitis was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran's period of active service? If the Veteran's pre-existing rhinitis did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? If there was no increase in pathology, that should be clearly set out. (ii) If there is any rhinitis that did not pre-exist his active service, the examiner should express an opinion as to whether the rhinitis had its onset during, or is otherwise etiologically related to, the Veteran's active service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements of continuity of symptoms since service and may not disregard those statements merely because there was no treatment. 2. The rationale for all opinions expressed must be provided and the examiner must clearly articulate the reasons for his or her conclusions. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.